ITEMID: 001-58261
LANGUAGEISOCODE: ENG
RESPONDENT: BGR
BRANCH: CHAMBER
DATE: 1998
DOCNAME: CASE OF ASSENOV AND OTHERS v. BULGARIA
IMPORTANCE: 2
CONCLUSION: Preliminary objection dismissed (abuse of process);Preliminary objection dismissed (non-exhaustion of domestic remedies);No violation of Art. 3 (ill-treatment);Violation of Art. 3 (effective investigation);No violation of Art. 6-1;Violation of Art. 13;No violation of Art. 3 (detention);No violation of Art. 5-1;Violation of Art. 5-3 (judge or other officer);Violation of Art. 5-3 (trial within a reasonable time);Violation of Art. 5-4;Violation of Art. 25-1;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings
TEXT: 7. The applicants are a family of Bulgarian nationals, of Roma origin, who live in Shoumen, Bulgaria.
Mr Anton Assenov was born in 1978, and his parents, Mrs Fidanka Ivanova and Mr Stefan Ivanov, were born in 1956 and 1952 respectively.
8. On 19 September 1992, while gambling in the market square in Shoumen, Mr Assenov (then aged 14) was arrested by an off-duty policeman and taken to the nearby bus station, where the officer called for back-up.
9. Subsequently Mr Assenov’s parents, who were both working at the bus station, came and asked for their son’s release. Mr Ivanov, as a way of showing that he would administer any necessary punishment, took a strip of plywood and hit his son. At some point two other policemen arrived. The applicants allege that these officers hit the boy with truncheons. A dispute ensued between the boy’s parents and the police, although it appears that Mr Assenov himself was unaggressive and compliant. He and his father were handcuffed and forced into a police car. They were taken to the police station, where they were detained for approximately two hours before being released without charge. Mr Assenov alleged to have been beaten with a toy pistol and with truncheons and pummelled in the stomach by officers at the police station.
10. On 21 September 1992, the first working day following the incident, the applicants visited a forensic medical expert. They explained to him that Mr Assenov had been beaten by three policemen with a truncheon and with the handle of a pistol and that his mother had been beaten with a truncheon. The doctor examined the two applicants and issued medical certificates.
11. The certificate concerning the first applicant stated that the boy had a band-like haematoma about 5 cm long and 1 cm wide on the upper outer side of his right arm; three band-like haematomas, each about 6 cm long and 1 cm wide, on the right side of his chest; another bruise about 4 cm long on the left scapula; a haematoma 2 cm in diameter on the back of the head; and five grazes each about 5 cm long on the right chest.
The certificate concerning Mrs Ivanova stated that she had a bruise about 5 cm long on her left thigh.
The doctor concluded that the bruises could have been inflicted as described by the applicants.
12. On 2 October 1992, Mrs Ivanova filed a complaint with the District Directorate of Internal Affairs (“the DDIA”), alleging that her son had been beaten at the bus and police stations, and requesting the prosecution of the officers responsible (see paragraph 58 below).
13. The complaint was dealt with by Colonel P., an inspector with the personnel service of the DDIA. On 15 October 1992, Colonel P. heard each of the applicants and prepared written accounts of their oral testimony. Mr Assenov was heard in the presence of a teacher, Mr G. In their statements, the applicants gave the account of events set out in paragraphs 8–9 above.
14. Colonel P. also ordered the three police officers present at the bus station and the officer who had been on duty at the police station to submit written explanations. This they did on 21, 22 and 26 October 1992.
According to these statements, Sergeant B., who was off-duty and out of uniform, had been passing the central bus station when he saw people gambling. He had arrested Mr Assenov and taken him to the bus station from where he had called the police officer on duty. Thereupon Mr Ivanov had appeared, shouted at the boy, and had hit him two or three times on the back with a plywood strip. He and his wife, who had arrived shortly thereafter, started protesting against their son’s arrest and pulling the boy. When Sergeants S. and V. arrived, the father had shouted, swore, and threatened the police officers, who told him to be quiet and asked him to come voluntarily to the police station. A crowd of about fifteen to twenty Roma had gathered; also present were approximately twenty drivers from the bus station. Since Mr Ivanov had continued his violent behaviour, the police officers had subdued him forcibly, handcuffed him and taken him and his son to the police station.
There officer S. had filled out a form recording the seizure of 100 levs from Mr Assenov and then released the two applicants. It was not true that they had been beaten at the police station.
15. On 26 October 1992 Colonel P. also obtained a written statement from the traffic manager at the bus station. She stated that a policeman had brought a boy and had asked her to telephone the police for a car. She did not remember any disturbance having occurred.
16. Based on this evidence, on 6 November 1992 Colonel P. drew up an internal note in which he made a summary of the facts and concluded that the boy had been beaten by his father.
17. On 13 November 1992 the Director of the DDIA wrote to the applicants stating that the conduct of the police officers had been lawful and that he would not, therefore, open criminal proceedings against them.
18. On 12 December 1992 the applicants submitted a request for the criminal prosecution of the alleged offenders to the regional military prosecution office in Varna (“the RMPO”).
19. On 30 December 1992 the RMPO ordered an inquiry to be carried out by investigator G. at the military investigation office in Shoumen.
20. On 8 February 1993 investigator G. wrote to the Director of Police in Shoumen, instructing him to take evidence from the applicants and the police officers and to report back. Since there had already been an inquiry on the matter, on 15 February 1993 the DDIA sent to the investigator all the material already collected.
21. It is disputed whether investigator G. heard the applicants personally. The Government allege that he did, but there is no record of this on file.
22. On 20 March 1993 investigator G. drew up a one-page internal note summarising the facts and advising that criminal proceedings should not be brought against the officers, on the grounds that the allegations had not been proved and the evidence in the case was “contradictory”.
23. On 24 March 1993, the RMPO decided, on the basis of the investigator’s advice, not to instigate criminal proceedings. The decision stated, inter alia, that Mr Ivanov had been hitting his son, shouting and pulling him, in disobedience of police orders, which had led to the applicants’ arrest (see paragraph 55 below), and that the evidence taken from witnesses did not confirm the use of physical violence by the police against the boy.
24. On 15 April 1993 the applicants appealed to the general military prosecution office (“GMPO”). They stated that it was clear from the decision of non-prosecution that the only witnesses examined had been the police officers who were the suspects; that the medical certificates had not been taken into consideration; and that it was untrue that Mr Assenov and his father had disobeyed police orders.
25. The appeal was submitted through the RMPO, which forwarded it to the GMPO on 30 April 1993, enclosing a letter advising that the complaint should be dismissed. A copy of this letter was sent to the applicants.
26. On 21 May 1993 the GMPO, apparently after an examination of the file, refused to open criminal proceedings against the police officers on the same grounds as the lower prosecuting authority. The decision stated, inter alia:
“A medical certificate is enclosed in the file, from which it appears that there were haematomas on the juvenile’s body, indicating superficial bodily harm, and corresponding, in terms of mechanism of infliction, to blows with a band-like solid object.
The deputy regional prosecutor correctly considered that even if blows were administered on the body of the juvenile, they occurred as a result of disobedience to police orders. The physical force and auxiliary means employed were in accordance with section 24(1), points 1 and 2, of the Law on National Police now in force [see paragraph 56 below].”
27. Apparently as a result of continued complaints from the applicants and pressure from the Ministry of Justice to re-examine the matter, on 13 July 1993 the GMPO wrote to the RMPO, stating that preliminary inquiries regarding alleged police misconduct should include the examination of independent witnesses, and that further investigations should therefore be carried out.
28. The RMPO took statements from a bus driver and a bus station employee on 29 and 30 July 1993 respectively. The driver stated that he had seen a Roma man hit his son with a lath. When the police car arrived, the father had thrown himself at the police officers and started fighting. The driver had taken the father’s arm to prevent him hitting the officers. He had not seen any of the officers hitting the boy. The other witness had a vague recollection of events and could not say whether or not the father had hit his son or the policemen had beaten them.
29. These additional investigations apparently did not conclude with the delivery of a formal decision. Their results were not communicated to the applicants.
30. On 20 June 1994 the applicants appealed to the Chief General Prosecutor of Bulgaria. They again set out their version of events, adding that Mr Assenov’s beating had been accompanied by insults referring to the applicants’ Roma origin and pointing out that there had been a number of witnesses to the incident but that no effort had been made to take evidence from any of them. They argued that there was a contradiction between the finding of the RMPO that no physical force had been used and the conclusion of the GMPO, which established that there had been use of physical force, but that it had been legal, and they alleged violations of Articles 3, 6 and 14 of the Convention.
31. This appeal was apparently transferred to the GMPO, which wrote to the applicants’ lawyer on 28 June 1994 stating that there were no grounds to overturn the previous decision.
32. In January 1995, Mr Assenov was questioned by the Shoumen prosecuting authorities in connection with an investigation into a series of thefts and robberies.
33. He was arrested on 27 July 1995 and the following day, in the presence of his lawyer and a prosecutor (“K.”), he was questioned by an investigator and formally charged with ten or more burglaries, allegedly committed between 9 January and 2 May 1995, and six robberies committed between 10 September 1994 and 24 July 1995, all involving attacks on passers-by on the street. Mr Assenov admitted most of the burglaries but denied having committed the robberies.
The decision was taken to detain him on remand. This decision was approved the same day by another prosecutor, “A.” (see paragraph 69 below).
34. On 27 July, 2 August, 7 August and 15 August 1995, the applicant took part in identification parades, at which he was identified by four robbery victims. A lawyer was present on all occasions. On 28 August 1995 an expert appointed by the investigator submitted a report concerning the value of the objects allegedly stolen by the first applicant and his accomplices. On an unspecified date additional charges, concerning other thefts in which Mr Assenov was suspected to have been an accomplice, were joined.
It would appear that, in the course of the investigation, approximately sixty witnesses and alleged victims were examined, but that no evidence was collected after September 1995.
35. Between 27 July 1995 and 25 March 1996, Mr Assenov was detained at the Shoumen police station.
There is a dispute between the parties as regards the conditions of his detention there. The applicant submits that he was held in a cell measuring 3 x 1.80 metres, which he shared at times with two to four other detainees; that the cell was almost entirely below ground level, with very limited light and fresh air; that he could not exercise or engage in any activity in his cell; and that he was let out of his cell only twice a day, to go to the toilet. The Government submit that the cell measured 4.60 x 3.50 metres and that the applicant shared it with only one other detainee.
36. The applicant submitted numerous requests for release to the prosecuting authorities, referring, inter alia, to the facts that no further evidence had to be collected and that he was suffering from health problems exacerbated by the conditions of his detention and had two young children. It appears that some of these applications were assessed individually, and that others were grouped and examined several months after their submission.
37. On 21 August 1995, Mr Assenov was examined by a doctor, who found that he was healthy. He was examined again on 20 September 1995, by a cardiologist from the Regional Hospital of Shoumen, who concluded that he did “not suffer from any cardiac disease, either congenital or acquired”, and that there were “no counter-indications against him remaining in detention, as far as his cardio-vascular status is concerned”.
38. On 11 September 1995, Mr Assenov submitted a petition to the Shoumen District Court requesting his release (see paragraphs 72–76 below).
On 19 September 1995 a judge sitting in camera dismissed the petition, stating, inter alia, that the charges against Mr Assenov concerned serious crimes, and that his criminal activity had been persistent, giving rise to a danger that he would commit further crimes if released.
39. On 13 October 1995, a district prosecutor dismissed two requests for Mr Assenov’s release. This refusal was confirmed on 19 October 1995 by a regional prosecutor.
40. The applicants appealed to the Chief Public Prosecutor’s Office stating, inter alia, that there had been a “campaign” against them because of their application to the Commission.
In its decision of 8 December 1995 the Chief Public Prosecutor’s Office dismissed the applicants’ arguments and stated that, although the investigation had been completed by September 1995, it was still necessary to detain Mr Assenov because there was a clear danger that he would resume his criminal activities. However, the view was expressed that prolonged detention in the premises of the Shoumen police would be harmful to the applicant’s “physical and mental development” and that he should therefore be moved to the Boychinovzi juvenile penitentiary.
The transfer took place three and a half months later, on 25 March 1996.
41. On an unspecified date in 1996, Mr Assenov again challenged his detention on remand before the Shoumen District Court.
On 28 March 1996 the court requested the case file from the district prosecutor’s office. Noting that an application had already been examined on 19 September 1995, it rejected the new petition as inadmissible (see paragraph 75 below).
42. On 21 March 1996 the investigator opened a separate case file to deal with the robbery charges, in connection with which he questioned Mr Assenov and ordered his continued detention on remand. The following day the investigator drew up a report summarising the facts in the robbery case and sent it to the prosecutor proposing that an indictment be prepared.
43. On 3 July 1996, a district prosecutor sent the robbery case back to the investigator with instructions to see one further witness. On 23 August 1996 the investigator returned the case file because the proposed witness had died. On 26 September 1996, the district prosecutor drew up an indictment in the case and, four days later, submitted it to the Shoumen District Court. The court held a hearing on 6 February 1997, where it heard four witnesses and adjourned the hearing to 29 May 1997 because of the non-attendance of two other witnesses.
44. In the meantime, on 20 September 1996, the investigator completed the preliminary inquiry into the burglary case. On 25 October 1996, this case was sent to the regional prosecutor’s office with a proposal to indict Mr Assenov. It appears that on 31 January 1997 the burglary case was referred back for further investigation.
45. Between 5 July and 24 September 1996, Mr Assenov was again held at Shoumen police station, before being transferred to Belene Prison.
46. Throughout 1996 the applicants continued to submit requests for Mr Assenov’s release to the prosecuting authorities. By decisions of 21 February and 17 June 1996 these requests were dismissed by the district prosecutor, on the grounds that the applications raised no new arguments, that there was still a danger of the applicant reoffending if released and that the cases would soon be sent for trial. On 8 October 1996 the regional prosecution office dismissed another request for release.
47. On 4 November 1996, a District Court judge sitting in the robbery case examined in camera Mr Assenov’s petition for release. The judge refused to release Mr Assenov, taking into account the seriousness and the number of the crimes with which he had been charged and the fact that the trial would soon commence.
48. In July 1997 Mr Assenov was convicted of four street robberies and sentenced to thirty months’ imprisonment.
According to the information available to the Court, he has not yet been indicted in relation to the burglary charges pending against him.
49. The applicants’ complaint was lodged with the Commission on 6 September 1993. In March 1995 they signed before a notary a statement of means, prepared in Bulgarian, referring expressly to their application to the Commission, and stating that it was done for purposes of their legal aid request to the Commission.
50. On 15 May, 23 May and 8 September 1995 two daily newspapers published articles about the case. Two of the articles, under headlines stating that a Roma gambler had “put Bulgaria on trial in Strasbourg”, explained inter alia that, in response to questions from journalists, the applicants had allegedly denied having made an application to the Commission. The articles concluded that perhaps some Roma activists had pushed the case and misled Amnesty International.
51. On an unspecified date the prosecuting authorities or the police approached the applicants and asked them to declare whether they had made an application to the Commission. On 8 September 1995, the second and third applicants visited a notary and signed a declaration in which they denied having made an application to the Commission. They further stated that they remembered having signed, in 1992 and 1993, some documents prepared by human rights associations. However, they had not been given copies of the documents and did not know their contents. One of the documents had been in a foreign language.
52. It would appear that this declaration was then submitted to the prosecuting authorities. On 19 September 1995 the GMPO wrote about it to the Ministry of Foreign Affairs.
53. The transcript of Mr Assenov’s questioning after his arrest on 28 July 1995 establishes that he spoke to the investigator about the events of 19 September 1992, saying:
“In 1992 ... I was beaten by policemen ... [at the bus station]. Thereafter I obtained a medical certificate and my father complained to the police. They did not look at it seriously and he submitted it to the military prosecution office. They did not take it seriously either. Then my father heard that there were some people from an international human rights organisation [in town]. My father brought me there and showed them how I was beaten. In fact, after my release from the police my father brought me first to these people and then wrote to the police and to the prosecution authorities.”
Since the minutes record only that said by Mr Assenov, it cannot be established whether or not his statement was made in response to questioning.
54. Gambling is an administrative offence under Bulgarian law, for which individuals under sixteen years of age are not liable (section 2(2) of the Law against Speculation).
55. Section 20(1) of the Law on National Police (1976), which applied at the relevant time, provided that a police officer could take to a police station or local government office only those persons:
“1. whose identity may not be established;
2. who behave violently and do not obey after warning;
3. who refuse to come voluntarily to a police station without serious reasons for refusal, after having been notified under section 16 of the present Act;
4. who wilfully create obstacles for the authorities of the Ministry of Internal Affairs in carrying out their duties;
5. who carry or use without lawful permission firearms, other weapons or other dangerous objects;
6. in other cases prescribed by law.”
According to section 20(2) of this Law, in each of the above cases the police were required to carry out an immediate investigation and release the person held within three hours, unless it was necessary to take further lawful measures in respect of him or her.
56. Section 24(1) contained provisions on the use of force by police officers. The use of force “adequate to the character and seriousness of the offence and resistance” (section 24(2)), was permitted:
“1. to bring an end to violent conduct or other serious violation of the public order;
2. in cases of obvious disobedience to police orders or prohibition;
3. during arrest or convoy where there is danger of absconding or for the life of the person arrested or conveyed or for other persons.”
57. Article 190 of the Code of Criminal Procedure (1974) (“CCP”) states:
“There shall be considered to exist sufficient evidence for the institution of criminal proceedings where a reasonable supposition can be made that a crime might have been committed.”
58. In respect of most serious crimes, and all crimes allegedly committed by civil servants in the exercise of their duties, criminal proceedings cannot be brought by a private individual, but only by the decision of a public prosecutor (CCP, Articles 192 and 282–85).
According to Articles 192 and 194 § 3 of the CCP, when a prosecutor has refused to institute criminal proceedings, such proceedings can be instituted by a higher prosecutor upon the petition of the interested person or ex officio.
59. The victim of an alleged crime can join criminal proceedings as a civil party in order to seek compensation (CCP, Chapter II, Articles 60–64).
60. The Law on Obligations and Contracts provides in section 45 that a person who has suffered damage can seek redress by bringing a civil action against the person who has, through his fault, caused the damage. The Law on State Responsibility for Damage provides that a person who has suffered damage due to the unlawful act of a civil servant can bring an action against the State authority concerned.
61. The Code of Civil Procedure provides, in Articles 182(d) and 183, that a court examining a civil action:
“182. … shall suspend the proceedings:
(d) whenever criminal elements, the determination of which is decisive for the outcome of the civil dispute, are discovered in the course of the civil proceedings.
183. Proceedings which have been suspended shall be resumed ex officio or upon a party’s petition after the respective obstacles have been removed...”
Article 222 of the Code of Civil Procedure provides:
“The findings contained in a final judgment of a criminal court and concerning the issue whether the act in question has been committed, its unlawfulness and the perpetrator’s guilt, are binding on the civil court when it examines the civil consequences of the criminal act.”
62. The parties have submitted to the Court a number of decisions of the Bulgarian Supreme Court as to the effect of the above provisions.
In decision no. 3421 of 18 January 1980 in case no. 1366/79, the First Civil Division of the Supreme Court held:
“In principle the fact of a crime may only be established under the procedures of the Code of Criminal Procedure. This is why, when an alleged civil right derives from a fact which constitutes a crime under the Criminal Code, the civil court, according to Article 182(d) of the Code of Civil Procedure, is obliged to suspend the civil proceedings.
This is necessary in order to respect the decision of the criminal court. It is mandatory for the civil courts regardless of the crime in issue. The mandatory binding force of the decisions of criminal courts is set out in Article 222 of the Code of Civil Procedure.”
In decision no. 12/1966, the Plenary Civil Division of the Supreme Court held as follows:
“The decision of the prosecution to terminate the criminal prosecution based on a finding that the accused is not guilty of committing the criminal act does not bind the civil court which examines the civil consequences of this act... [T]he civil court, on the basis of evidence [collected] in the course of the civil proceedings, can reach different factual findings, for example that the tort was in fact caused by the same person, the criminal prosecution against whom had been terminated.
If in the course of the civil proceedings, after collection of evidence, fresh criminal circumstances are discovered, the determination of which is decisive for the outcome of the civil dispute, the court is obliged to suspend the proceedings in accordance with Article 182(d) of the Code of Civil Procedure.”
In interpretative decision no. 11 of 3 January 1967 (Yearbook 1967), the Civil Assembly of the Supreme Court of Bulgaria held:
“… In principle a civil court may not establish whether any particular act constitutes a crime. But when the criminal proceedings were closed under Article 6 § 21 of the Code of Criminal Procedure [where the criminal procedure was closed following the death of the alleged perpetrator, expiry of the time-limit for prosecution or where an amnesty has been granted], the criminal court does not make a decision whether the act constitues a crime. In such cases, the law – Article 97 § 4 of the Code of Civil Procedure – provides a possibility for the civil court to establish in a separate procedure whether the act constitutes a crime and who was the perpetrator.”
In decision no. 817 of 13 December 1988 in case no. 725, a claim for damages arising out of a car accident, the Fourth Civil Division of the Supreme Court held:
“In dismissing the claim, the first-instance court had found that the only one responsible for the car accident was the claimant, who, at a distance of about ten metres, suddenly jumped in front of the car in order to cross the street and therefore, despite the measures taken by the driver, the collision was not avoided.
This conclusion was based on the fact that the criminal investigation against the driver had been closed on the grounds of lack of evidence, ill-foundedness, lack of some of the elements comprising a crime in the accusation and lack of guilt.
The court was not required to rely on the prosecutor’s decision to terminate the criminal investigation by Article 222 of the Code of Civil Procedure [see paragraph 61 above], which states that only the final judgment of a criminal court is binding on the court which deals with the civil consequences of the act in question. The order of a prosecutor closing an investigation has no evidential weight and his/her findings are not binding on the court dealing with the civil consequences of the act. Where there is no verdict of a criminal court finding the accused not guilty of causing the injuries of the claimant, the civil court must establish whether the defendant was guilty or not guilty on the basis of all admissible evidence under the Code of Civil Procedure. Thus, in the present case, the order of the prosecutor closing the investigation had no evidential weight that the defendant was not guilty for the car accident.”
63. In connection with the alleged burglaries, Mr Assenov was charged with an offence the elements of which are continuous criminal activity by a minor consisting of burglaries committed with accomplices and involving breaking in to locked premises, where the amount stolen is significant. The maximum punishment for this offence is three years’ imprisonment (Criminal Code 1968 (“CC”), Article 195 §§ 1(3), 1(5) and 2 in conjunction with Articles 26 § 1 and 63 § 1(3)).
64. In connection with the alleged robberies, he was charged with an offence of continuous criminal activity by a minor, committed with accomplices, consisting of robberies, defined as stealing with the use of force or threats. The punishment is up to five years’ imprisonment (CC, Article 198 § 1 in conjunction with Articles 26 § 1 and 63 § 1(2)).
65. Pursuant to Articles 23–25 of the CC, the maximum sentence which Mr Assenov could have received if convicted of all the charges against him was six and a half years’ imprisonment.
66. According to the relevant provisions of the CCP and legal theory and practice, the prosecutor performs a dual function in criminal proceedings.
During the preliminary stage he supervises the investigation. He is competent, inter alia, to give mandatory instructions to the investigator; to participate in examinations, searches or any other acts of investigation; to withdraw a case from one investigator and assign it to another, or to carry out the entire investigation, or parts of it, himself. He may also decide whether or not to terminate the proceedings, order additional investigations, or prepare an indictment and submit the case to court.
At the judicial stage he is entrusted with the task of prosecuting the accused.
67. The investigator has a certain independence from the prosecutor in respect of his working methods and particular acts of investigation, but performs his functions under the latter’s instructions and supervision (CCP, Articles 48 § 2 and 201). If an investigator objects to the prosecutor’s instructions, he may apply to the higher prosecutor, whose decision is final and binding.
68. Under Article 86 of the CCP, the prosecutor and the investigator are under an obligation to collect both incriminating and exonerating evidence. Throughout criminal proceedings, the prosecutor must “effect a supervisory control of lawfulness” (CCP, Article 43).
69. An accused, including a minor, can be detained on remand by decision of an investigator or prosecutor, although minors may be detained on remand only in exceptional circumstances. In cases where the decision to detain has been taken by an investigator without the prior consent of a prosecutor, it must be approved by a prosecutor within twenty-four hours. The prosecutor usually makes this decision on the basis of the file, without hearing the accused (CCP, Articles 152, 172, 201–03 and 377–78).
70. A criminal investigation must be concluded within two months. A prolongation of up to six months may be authorised by a regional prosecutor and, in exceptional cases, the Chief Public Prosecutor may prolong the investigations up to nine months. If the period is prolonged, the prosecutor will decide whether to hold the accused in custody (CCP, Article 222).
71. There is no legal obstacle preventing the prosecutor who has taken the decision to detain an accused on remand, or has approved an investigator’s decision, from acting for the prosecution against the accused in any subsequent criminal proceedings. In practice this frequently occurs.
72. A person detained on remand has the opportunity immediately to file an appeal with the competent court against the imposition of detention. The court must rule within three days of the filing of the appeal (CCP, Article 152 § 5).
73. According to the practice which was current at the time of Mr Assenov’s arrest, the court examines appeals against detention on remand in camera, without the participation of the parties. If the appeal is dismissed, the court does not notify the detained person of the decision taken.
74. The First Criminal Division of the Supreme Court has held that, in deciding on such appeals, it is not open to the court to inquire whether there exists sufficient evidence supporting the charges against the detainee, but only to examine the lawfulness of the detention order. A detention order will only be lawful, in cases of persons charged with crimes punishable by less than ten years’ imprisonment, where there is a “real danger” of the accused absconding or reoffending (decision no. 24 in case no. 268/95).
75. In a decision of 17 September 1992, the First Criminal Division of the Supreme Court found that the imposition of detention on remand could be contested before a court only once. A new appeal was only possible where a detained person had been released and then redetained. In all other cases a detained person could request his release from the prosecuting authorities if there had been a change of circumstances (decision no. 94 in case no. 754/92).
76. Periodic judicial review of the lawfulness of detention on remand becomes possible only when the criminal case is pending before a court, which can then decide whether or not to release the accused.
VIOLATED_ARTICLES: 13
25
3
5
VIOLATED_PARAGRAPHS: 25-1
5-3
5-4
NON_VIOLATED_ARTICLES: 3
5
6
NON_VIOLATED_PARAGRAPHS: 5-1
6-1


ITEMID: 001-103613
LANGUAGEISOCODE: ENG
RESPONDENT: MKD
BRANCH: COMMITTEE
DATE: 2011
DOCNAME: CASE OF CAMINSKI v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1
JUDGES: Julia Laffranque;Mirjana Lazarova Trajkovska;Zdravka Kalaydjieva
TEXT: 5. The applicant was born in 1956 and lives in Slovenj Gradec, Slovenia.
6. In June 1992 criminal charges were brought against five people (“the defendants”) on suspicion of having caused grievous bodily harm to the applicant. On 16 September 1992 an investigating judge of the Skopje Court of First Instance (“the trial court”) opened an investigation against the defendants. According to statements taken on 25 September 1992 as part of the pre-trial proceedings, the applicant sought damages for loss of income and injuries sustained. He stated that he would subsequently specify his claim.
7. During the proceedings, the trial court fixed about forty hearings. Most of them were postponed because it could not secure the attendance of the defendants, their representative or witnesses. No adjournment of any of the hearings was ordered on the applicant’s request. The trial court also obtained several expert opinions during the proceedings.
8. On 4 July 2003 the trial court found three of the defendants guilty of grievous bodily harm and sentenced them to a suspended prison term. It further advised the applicant to pursue a compensation claim by means of a separate civil action. In this connection it observed that the applicant had hitherto sought compensation only for non-pecuniary damage.
9. On 11 December 2003 the public prosecutor appealed against the above-mentioned decision. At a public hearing held on 27 January 2005, the Skopje Court of Appeal overturned the decision in respect of the sentence and confirmed the remainder. The three defendants were sentenced to six months’ imprisonment. According to the Government, on 10 November 2005 the Supreme Court confirmed this decision by dismissing the defendants’ appeal on points of law (барање за вонредно преиспитување на правосилна пресуда).
10. On 6 December 2005 the applicant brought a civil action against the defendants and their employer, claiming compensation for the pecuniary and non-pecuniary loss he had sustained as a result of his injuries.
11. On 26 June 2008 the trial court ruled partly in favour of the applicant and ordered the defendants and their employer jointly to pay him 1,200,000 Macedonian denars (equivalent to 19,500 euros) in respect of non-pecuniary damage. On 4 September 2008 the defendants appealed. The case is pending before the Skopje Court of Appeal.
12. The statutory provisions relevant for the present case were described in the Boris Stojanovski case (see Boris Stojanovski v. the former Yugoslav Republic of Macedonia, no. 41196/06, §§ 16-31, 6 May 2010).
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-96167
LANGUAGEISOCODE: ENG
RESPONDENT: SVK
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF SPATKA v. SLOVAKIA
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial
JUDGES: Giovanni Bonello;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nebojša Vučinić;Nicolas Bratza
TEXT: 4. The applicant was born in 1963 and lives in Lučatín.
A. Applicant's action of 1997
5. On 21 August 1997 the applicant claimed a sum of money from an association and its three individual members before the Banská Bystrica District Court.
6. In November 1997 the District Court held a hearing at which neither the applicant nor his lawyer appeared. The applicant also failed to appear at the hearing of December 1997.
7. Another hearing was scheduled for 12 March 1998 but did not take place due to the absence of the judge. A further hearing was scheduled for 23 April 1998 but could not take place because it turned out that the judge who had been charged earlier that day with replacing the judge dealing with the case was the wife of the lawyer of the defendants.
8. On 10 December 1998 the District Court discontinued the proceedings in respect of two of the defendants.
9. In letters of 20 September 1999 and 21 February 2001 the President of the District Court acknowledged that there had been unjustified delays in the proceedings.
10. On 20 March 2001 and 5 April 2002 the District Court held further hearings. The former took place before a substitute judge who had been charged with replacing the judge initially appointed on health grounds earlier that day. Consequently, he had no in-depth knowledge of the case file and he could not proceed with the case. The latter hearing took place before a further judge who, again, was not familiar with the details for the case. It was adjourned sine die with a view to obtaining expert evidence.
11. In the meantime, on 31 January 2002, the Banská Bystrica Regional Court dismissed as unfounded the applicant's challenge to all judges of the District Court.
12. On 9 January 2003 the District Court appointed an expert and ordered that the applicant pay an advance on the expert's fees. The applicant appealed against the latter ruling.
13. On 24 June 2003 the District Court discharged the expert and appointed another one. On 29 July 2003 it corrected clerical errors in that decision.
14. On 30 January 2004 the District Court urged the expert to submit his opinion. The expert first requested an extension of the time-limit for the elaboration of his opinion and, subsequently, an exemption from his obligation to elaborate the opinion.
15. On 9 June 2004 the District Court did not exempt the expert from his obligation and urged the submission of the opinion by 8 October 2004. The expert requested the District Court to appoint a different expert due to his heavy workload. On 24 October 2004 the District Court prolonged the time-limit for elaboration of the expert opinion and warned the expert that a fine would be imposed on him in the absence of a reply. On 21 January 2005 the expert filed his opinion.
16. Between 5 April 2005 and 12 December 2006 the District Court held eleven hearings. They were adjourned with a view to obtaining further evidence and summoning witnesses and the defendants.
17. On 15 December 2006 the District Court delivered a judgment dismissing the action.
18. On 19 April 2007 the Regional Court, upon the applicant's appeal, partly confirmed and partly revised the first-instance judgment.
19. On 27 November 2007 the Supreme Court, upon the applicant's appeal on points of law, quashed the appellate court judgment.
20. On 4 September 2008 the Regional Court approved the friendly settlement reached between the parties. The decision became final on 9 October 2008.
21. On 13 September 2002 the applicant lodged a complaint with the Constitutional Court in respect of delays in the proceedings before the District Court. On 28 May 2003 the Constitutional Court found that the District Court had violated the applicant's right to a hearing within a reasonable time, awarded him SKK 45,000 in respect of non-pecuniary damage, ordered the District Court to proceed with the action promptly and reimburse the legal costs.
22. The Constitutional Court found that the subject-matter of the proceedings was not of any particular legal or factual complexity. No delays or procedural inactivity could be imputed to the applicant apart from his and his lawyer's absence at the hearing in November 1997.
23. As to the District Court's conduct, the Constitutional Court observed that the action was still pending at first instance without a single decision on the merits having been taken. The District Court had been inactive or its treatment of the case had been inefficient and, at times, even erroneous in the period after 23 April 1998.
VIOLATED_ARTICLES: 6


ITEMID: 001-77934
LANGUAGEISOCODE: ENG
RESPONDENT: SVN
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF VARACHA v. SLOVENIA
IMPORTANCE: 4
CONCLUSION: Preliminary objection dismissed (non-exhaustion);Violation of Art. 6-1;Violation of Art. 13;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial claim;Costs and expenses partial award - Convention proceedings
JUDGES: David Thór Björgvinsson;John Hedigan
TEXT: 5. The applicant was born in 1950 and lives in Ljubljana.
6. On 27 February 1992 the applicant had a car accident. Five vehicles were involved in the incident. Mr F.J., the driver of the car that ran into the applicant's car, had taken out insurance with the insurance company ZTI.
7. On 1 June 1992 the applicant instituted civil proceedings against ZTI in the Kranj Basic Court, Kranj Unit (Temeljno sodišče v Kranju, Enota v Kranju) seeking payment of 52,185.12 ATS (approximately 3,800 euros) for the material damage sustained.
On 19 January 1994 the court held a hearing and decided to request the Klagenfurt Court (Gericht in Klagenfurt), Austria, to hear the applicant who lived in Klagenfurt at the time.
On 28 June 1994 the Convention took effect with respect to Slovenia.
On 12 October 1994 the applicant urged the court to issue the request to the Klagenfurt Court. She also requested the court to process her case more diligently.
On 1 January 1995 the Kranj Local Court (Okrajno sodišče v Kranju) gained jurisdiction in the present case due to the reform of the Slovenian judicial system.
On 10 April and 12 December 1996, and 12 February, 21 August and 21 October 1997 and 9 February 1998 the applicant repeated her request of 12 October 1994.
On 9 September 1997 the court informed the applicant that it would only request the court in Austria to take her testimony, if she produced substantiated reasons why she could not appear before the court in Slovenia.
On 14 September 1998 the applicant informed the court that the reason why she should be heard in Austria was that she did not have sufficient knowledge of Slovene language to appear before the Slovenian court and that retaining an interpreter would be to costly and time consuming. Since the court found those reasons insufficient, it decided not to request a court in Austria to hear the applicant.
On 12 January 1999 the applicant requested that a date be set for a hearing.
On 9 February 1999 the court held a hearing and heard the applicant without an interpreter. The court found that the applicant was able to understand the questions in Slovene and was also able to respond in the same language to the questions asked. The court decided to adjourn the hearing till 23 March 1999.
On 10 March 1999 the applicant requested the court to postpone the hearing scheduled for 23 March 1999 in order to allow her time to summon M.H., one of the witnesses. Her request was granted.
The postponed hearing was held on 29 April 1999, but M.H. did not attend.
On 18 May 1999 the applicant informed the court that M.H. had died and requested the court to appoint a road traffic expert.
On 1 June 1999 the court held a hearing and decided to appoint a road traffic expert.
On 7 July 1999 the court appointed a road traffic expert and awarded him a delay of thirty days to produce an expert opinion.
On 28 September 1999 the expert delivered the opinion holding that Mr F.J. was only party liable for the damage made on the applicant's car. Another person involved in the accident was partly responsible for the remaining damage, but this person was not a party to the proceedings.
On 14 December 1999 the applicant submitted her comments on the expert opinion.
On 4 May 2000 the applicant requested the court to seek an additional opinion from the appointed expert.
On 6 October 2000 the court ordered the expert to produce an additional opinion, which he did on 20 November 2000.
On 16 January 2001 the applicant lodged written submissions.
On 15 May 2001 the court held a hearing, heard the appointed expert and decided to deliver a written judgment.
The judgment, upholding the applicant's claim in part, was served on the applicant on 20 August 2001. The judgment became final on 5 September 2001.
“Everyone shall have the right to compensation for damage caused by the unlawful acts of a person or body when performing a function or engaged in an activity on behalf of a state or local authority or as a holder of public office. ...”
9. If a court is responsible for undue delay in the proceedings and an individual has sustained pecuniary damage as a result, he or she may claim compensation from the State under the Code of Obligations 2001 (Obligacijski zakonik). The person seeking compensation will thus have to prove, firstly, that there has been a delay in the proceedings; secondly, that damage has occurred and, thirdly, that there is a causal link between the conduct of the court and the damage sustained.
VIOLATED_ARTICLES: 13
6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-108819
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: ADMISSIBILITY
DATE: 2012
DOCNAME: AVRAS v. TURKEY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: András Sajó;Françoise Tulkens;Helen Keller;Isabelle Berro-Lefèvre;Paulo Pinto De Albuquerque
TEXT: The applicants, Mr Zübeyit Avras, Mr Mesut Avras, Ms Nazime Avras, Mr Hüseyin Avras and Ms Velide Avras are Turkish nationals who were born in 1940, 1956, 1975, 1976 and 1986 respectively and live in Istanbul. They were represented before the Court by Mr Zeki Yüksel and Mr Dinçel Aslan, lawyers practising in Van.
The first applicant is the father and the remaining four applicants are the siblings of Mr Sabri Avras, who joined the PKK in 1994. The applicants have not heard from their relative since 1994.
On 24 August 2004 a number of newspapers reported that a military operation had taken place in 1994 in an area within the administrative jurisdiction of Bitlis, in south-east Turkey. During the military operation a number of PKK members had been apprehended by members of the Turkish security forces, killed, their bodies mutilated and female PKK members raped by the soldiers. The bodies were subsequently buried in two mass graves. The area where the bodies were buried has been out of bounds for civilians since that date.
On 8 September 2004 the applicants, with the assistance of their lawyer, submitted a petition to the Bitlis prosecutor’s office and drew the prosecutor’s attention to the newspaper reports. They alleged that their relative Sabri Avras had also been killed in the operation and asked the prosecutor to exhume the remains, establish their relative’s identity by carrying out DNA tests and then return the remains to the family for burial.
On 15 October 2004 the Bitlis prosecutor visited the location in question and found a large number of bones and clothes scattered around a large area. The prosecutor was accompanied by, inter alios, a doctor, a photographer, a gendarmerie non-commissioned officer and a number of persons from nearby villages. Two local villagers told the prosecutor that a military operation had taken place in the area at the beginning of June 1995. The photographer took photos of the bones and the clothes and the doctor confirmed that they were human bones. The bones, clothes and several pieces of military equipment also found in the area were secured for forensic examinations.
On 20 October 2004 the Bitlis prosecutor sent the bones to the Forensic Medicine Directorate in Istanbul. He requested the Directorate to establish whether they were human bones and, if so, to establish how many persons had been killed and the deceased persons’ sex and dates of death.
On 29 December 2004 the Bitlis prosecutor decided to close the investigation and not to prosecute any members of the security forces who had taken part in the operation in 1995 for the killings. It appears from this decision that, according to the information provided by the Bitlis Gendarmerie Headquarters to the prosecutor, on 2-3 June 1995 a military operation had taken place in the area in question. At the end of the operation the soldiers had recovered the bodies of 27 PKK members but as the area was not safe, no autopsies had been carried out and the bodies had been left there.
The prosecutor considered that the persons whose remains were recovered had died in an armed clash with the soldiers. There was insufficient evidence to prove that the persons had been apprehended and then executed, as alleged by the newspapers. In the prosecutor’s opinion, the fact that no autopsies had been carried out on the bodies did not mean that the soldiers had been trying to cover up any offence or that they had acted negligently; the area where the bodies were found had not been safe at the time of the incident, was too remote and was inaccessible by vehicle. The prosecutor also decided that the Van prosecutor would establish the identities of the deceased and return the remains to their families.
An objection lodged by the applicants against the prosecutor’s decision was rejected by the Muş Assize Court on 24 June 2005.
On 8 May 2006 the Forensic Medicine Directorate prepared its report in response to the prosecutor’s above-mentioned request of 20 October 2004. According to the report, although the macroscopic examination of the bones showed that they belonged to 11 persons, only the bones belonging to six of the deceased were suitable for DNA comparisons. It was established that none of the six deceased was Sabri Avras.
On 7 April 2009 the fourth applicant, Hüseyin Avras, asked the Istanbul University Medical Faculty’s Forensic Medicine Department to prepare an independent opinion on the above-mentioned findings of the Forensic Medicine Directorate. According to a report prepared by a professor of forensic medicine, being able to identify only six of the deceased through DNA analysis suggested that the Forensic Medicine Directorate’s findings were not compatible with the rates of success obtained internationally. It was probable that the Directorate had used the organic DNA extraction method rather than silica-based DNA separation. The organic extraction method produced only a 45 per cent success rate, whereas the success rate of the silica method was much higher.
Following the introduction of the application, the Government were requested by the Court, under Rule 54 § 2 (a) of the Rules of Court, to confirm whether the forensic examinations carried out by the Directorate had been compatible with the methods referred to in the independent expert’s report. Should their answer be in the negative, the Government were also requested, pursuant to Rule 44A of the Rules of Court, to ensure that further forensic examinations compliant with the applicable international standards were carried out by their authorities with a view to establishing whether the applicants’ relative was among the dead.
On 12 May 2011 the Government informed the Court that new and more advanced forensic examinations had been carried out on the remains at the request of the Court. According to the report pertaining to the new forensic examinations, it was established that the remains belonged to 16 persons and that Sabri Avras was not one of those 16 deceased persons.
On 13 June 2011 a copy of this report was forwarded to the applicants and they were informed by the Registry that they had the opportunity to submit any written comments they may wish to make on the information supplied by the Government by 11 July 2011. No response was received from the applicants.


ITEMID: 001-96022
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2009
DOCNAME: RAI AND EVANS v. THE UNITED KINGDOM
IMPORTANCE: 2
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza
TEXT: The first applicant is Milan Rai. He was born in 1965 and is represented by Mr J. Welch, a solicitor with Liberty, a non-governmental civil liberties organisation based London. The second applicant is Ms Maya Evans. She is represented by Mr M. Schwartz of Bindmans Solicitors, London. Both are British nationals and live in East Sussex.
s, may be summarised as follows.
s
On 25 October 2005 the first applicant participated in a demonstration, which he had organised, in Whitehall opposite Downing Street, a “designated area” within the meaning of section 138 of the Serious Organised Crime and Police Act 2005 (“the 2005 Act”). The second applicant also participated in it.
Prior to 25 October 2005 the first applicant had informed the police orally that the demonstration was going to be held, he gave the time, date and place of the demonstration and (politely) informed the police that an authorisation would not be sought. He had also posted information the day before the demonstration on a website confirming that it was not authorised so that the risk of arrest was high and that, in fact, he had been informed by the police that he would be arrested under the 2005 Act. The second applicant was also aware prior to the relevant date that authorisation had not been sought so that demonstrating in that area would be an offence. The High Court later noted that the demonstration was just as much a demonstration against the requirement for an authorisation under the 2005 Act as against the Iraqi conflict. The Magistrates’ Court (in its case stated to the High Court in the first applicant’s case) noted police evidence to the effect that, had authorisation been sought, no conditions would have attached to it.
At the demonstration, the first applicant read out names of Iraqi citizens killed in the Iraqi conflict and the second applicant read out names of British soldiers killed in that conflict. Placards were displayed about the Iraq conflict and a bell was rung at regular intervals. The applicants behaved in a peaceful and orderly manner throughout. The police attended at the demonstration and warned the applicants that they would be arrested and charged if they continued given the lack of an authorisation. The police then withdrew to enable the applicants to stop the demonstration. They chose to continue.
The first and second applicants were therefore arrested, detained in the police station for a number of hours and charged: the first applicant for having organised an unauthorised demonstration in a designated area contrary to section 132(1)(a) of the 2005 Act and the second for having participated in the same demonstration contrary to section 132 (1)(b) of that Act. It appears that both were granted police bail: the documents submitted do not indicate that bail was subject to any conditions (apart from appearing before the Magistrates’ Court on the relevant date).
Before the Magistrates’ Court the applicants argued that section 132(1) (a) and (b) of the 2005 Act were not compatible with Articles 10 and 11 of the Convention. Unless those provisions were interpreted compatibly with those Articles, their convictions would be unlawful. The Magistrates’ Court found that the relevant sections were necessary and proportionate restrictions of the applicant’s rights under Articles 10 and 11. In any event, additional words could not be read into the sections as that would run counter to legislative intent. The convictions would not therefore be unlawful under section 6 of the Human Rights Act 1998. The applicants were convicted as charged on 7 December 2005 and 16 March 2006, respectively. The first applicant was sentenced to a fine of 350 pounds sterling (GBP) and ordered to contribute to prosecution costs in the sum of GBP150 and the second applicant was sentenced to a conditional discharge of 12 months and to contribute to costs in the sum of GBP100.
The applicants appealed by way of a case stated to the High Court. They conceded that section 132(1)(a) and (b) was not incompatible with Articles 10 and 11 of the Convention but argued that the relevant State actors (the police, the Crown Prosecution Service and the courts) should have been required to justify the necessity to act (arrest, prosecute and convict) on the facts of each individual case. Accordingly, those authorities should have looked not merely at whether there was an authorisation but also at the later peaceful conduct of the actual demonstration. Since the Magistrates’ Court had not considered the justification for their conviction along those lines, their arrest, prosecution and conviction were contrary to their Convention rights.
By judgment dated 20 December 2006, the High Court dismissed the applicants’ appeals (and the appeals of two others, Blum and Others v Director of Public Prosecutions [20061 EWHC 3209 (Admin)). It noted that the only charge against the applicants was demonstrating without an authorisation. The High Court considered that the reasoning in the case of Ziliberberg v. Moldova (no. 61821/00, 4 may 2004) was compelling. Nothing in the other Convention or domestic jurisprudence opened to the High Court undermined that reasoning. Those Convention and domestic cases rather raised various public order, safety and security issues (Plattform “Ärzte für das Leben” v. Austria, 21 June 1988, Series A no. 139; Ezelin v. France, 26 April 1991, Series A no. 202; and Stankov and the United Macedonian Organisation Ilinden v. Bulgaria, nos. 29221/95 and 29225/95, ECHR 2001IX, as well as G. v. the Federal Republic of Germany, no. 13079/87, Commission decision of 6 March 1989, 60 Decisions and Reports (“DR”), 256; and Çiraklar v. Turkey, No. 19601/92, Commission Decision of 28 October 1998, 80-B DR 46). Accordingly, once it was accepted that the section requiring the authorisation was compatible with Article 10 and 11 (as the applicants did), the High Court was not required to look at the nature of the activity actually pursued thereafter without authorisation in order to determine whether a sanction should be imposed. Once an authorisation procedure was Article 11 compliant, Parliament was entitled to impose sanctions for a failure to obtain authorisations. The High Court refused to certify a point of law of general public importance for the House of Lords.
B. Relevant domestic law and practice
Section 132 of the 2005 Act is entitled “Demonstrating without authorisation in designated area” and reads as follows:
“(1) Any person who–
(a) organises a demonstration in a public place in the designated area, or
(b) takes part in a demonstration in a public place in the designated area, or
(c) carries on a demonstration by himself in a public place in the designated area,
is guilty of an offence if, when the demonstration starts, authorisation for the demonstration has not been given under section 134(2).
(2) It is a defence for a person accused of an offence under subsection (1) to show that he reasonably believed that authorisation had been given.
(3) Subsection (1) does not apply if the demonstration is–
(a) a public procession of which notice is required to be given under ... section 11 of the Public Order Act 1986 (c. 64), or of which ... notice is not required to be given, or
(b) a public procession for the purposes of section 12 or 13 of [the Public order Act 1986].
...
(7) In this section and in sections 133 to 136–
(a) “the designated area” means the area specified in an order under section 138,
(b) “public place” means any highway or any place to which at the material time the public or any section of the public has access, on payment or otherwise, as of right or by virtue of express or implied permission,
(c) references to any person organising a demonstration include a person participating in its organisation,
(d) references to any person organising a demonstration do not include a person carrying on a demonstration by himself,
(e) references to any person or persons taking part in a demonstration (except in subsection (1) of this section) include a person carrying on a demonstration by himself.”
Section 133 is entitled “Notice of demonstrations in designated area” and reads as follows:
“(1) A person seeking authorisation for a demonstration in the designated area must give written notice to that effect to the Commissioner of Police of the Metropolis (referred to in this section and section 134 as "the Commissioner").
(2) The notice must be given–
(a) if reasonably practicable, not less than 6 clear days before the day on which the demonstration is to start, or
(b) if that is not reasonably practicable, then as soon as it is, and in any event not less than 24 hours before the time the demonstration is to start.
(3) The notice must be given–
(a) if the demonstration is to be carried on by more than one person, by any of the persons organising it,
(b) if it is to be carried on by a person by himself, by that person.
(4) The notice must state–
(a) the date and time when the demonstration is to start,
(b) the place where it is to be carried on,
(c) how long it is to last,
(d) whether it is to be carried on by a person by himself or not,
(e) the name and address of the person giving the notice.
(5) A notice under this section must be given by–
(a) delivering it to a police station in the metropolitan police district, or
(b) sending it by post by recorded delivery to such a police station.
(6) Section 7 of the Interpretation Act 1978 (c. 30) (under which service of a document is deemed to have been effected at the time it would be delivered in the ordinary course of post) does not apply to a notice under this section.
Section 134 is entitled “Authorisation of demonstrations in designated area” and reads as follows:
“(1) This section applies if a notice complying with the requirements of section 133 is received at a police station in the metropolitan police district by the time specified in section 133(2).
(2) The Commissioner must give authorisation for the demonstration to which the notice relates.
(3) In giving authorisation, the Commissioner may impose on the persons organising or taking part in the demonstration such conditions specified in the authorisation and relating to the demonstration as in the Commissioner’s reasonable opinion are necessary for the purpose of preventing any of the following–
(a) hindrance to any person wishing to enter or leave the Palace of Westminster,
(b) hindrance to the proper operation of Parliament,
(c) serious public disorder,
(d) serious damage to property,
(e) disruption to the life of the community,
(f) a security risk in any part of the designated area,
(g) risk to the safety of members of the public (including any taking part in the demonstration).
(4) The conditions may, in particular, impose requirements as to–
(a) the place where the demonstration may, or may not, be carried on,
(b) the times at which it may be carried on,
(c) the period during which it may be carried on,
(d) the number of persons who may take part in it,
(e) the number and size of banners or placards used,
(f) maximum permissible noise levels.
(5) The authorisation must specify the particulars of the demonstration given in the notice under section 133 pursuant to subsection (4) of that section, with any modifications made necessary by any condition imposed under subsection (3) of this section.
(6) The Commissioner must give notice in writing of–
(a) the authorisation,
(b) any conditions imposed under subsection (3), and
(c) the particulars mentioned in subsection (5),
to the person who gave the notice under section 133.”
Section 136 is entitled “Offences under sections 132 to 135: penalties” and reads, in so far as relevant, as follows:
“(1) A person guilty of an offence under section 132(1)(a) is liable on summary conviction to imprisonment for a term not exceeding 51 weeks, to a fine not exceeding level 4 on the standard scale, or to both.
(2) A person guilty of an offence under section 132(1)(b) or (c) is liable on summary conviction to a fine not exceeding level 3 on the standard scale.”
Section 138 is entitled “The designated area” and provides as follows:
“(1) The Secretary of State may by order specify an area as the designated area for the purposes of sections 132 to 137.
(2) The area may be specified by description, by reference to a map or in any other way.
(3) No point in the area so specified may be more than one kilometre in a straight line from the point nearest to it in Parliament Square.”
By the Serious Crime and Police Act 2005 (Designated Area) Order 2005, the Secretary of State defined, pursuant to section 138 of the 2005 Act, an area of London surrounding Parliament and Downing Street as constituting a “designated area” for the purposes of the 2005 Act. The text of the Order and a map attached to it delineated the precise area.


ITEMID: 001-5036
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: ADMISSIBILITY
DATE: 2000
DOCNAME: M.S. v. GERMANY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Matti Pellonpää
TEXT: The applicant, born in 1971, is a citizen of former Yugoslavia residing in Duisburg (Germany). He is the general manager and a shareholder of a building company. Before the Court he is represented by Mr K. Brinkmann, a lawyer practising in Ratingen (Germany).
In 1987 the applicant arrived in Germany. In 1994 and 1995 he travelled for short periods to the United States. In April 1998 he married L.M., a German citizen. He is the father of two children, born in 1997 and 1998.
On 26 August 1998 the applicant was arrested and subsequently taken into detention with a view to extradition (Auslieferungshaft). The applicant’s arrest was based on an international arrest warrant of 1 September 1995 issued by a court in the United States, the Tarrant County District Court (Texas). The applicant was suspected of having raped a woman in December 1994 in Texas.
On 17 July 1998 the United States Embassy in Germany submitted to the German judicial authorities a request for the applicant’s extradition to the United States.
On 22 September 1998 the Düsseldorf Court of Appeal (Oberlandesgericht) ordered the applicant’s continued detention with a view to extradition. Subsequently, the court ordered the applicant’s extradition to the United States and found that there were no obstacles to it. The prosecution of the applicant had not yet become time-barred and concerned an extraditable offence. Furthermore, the applicant was not a German citizen. The applicant had denied having committed the offence he was charged with. However, whether or not the accusation was well-founded was not an issue to be addressed in the extradition proceedings, and there was no indication that the request for extradition had been made arbitrarily. Regarding the necessity of the applicant’s detention with a view to extradition, the court noted that the risk of the applicant’s absconding existed. In case of a conviction he risked a severe sentence. Furthermore, when he had been arrested in the United States in the context of the criminal proceedings against him in March 1995, he had been released on bail and had absconded.
On 19 October 1998 the Court of Appeal rejected the applicant’s request for having his extradition declared unlawful and rejected the request for release from detention with a view to extradition. The Court of Appeal found that since its decision of 22 September 1998 the applicant’s situation had not changed. Neither the fact that the applicant had been recognised as refugee by the German authorities nor the fact that he was married to a German citizen made him a German citizen within the meaning of the Basic Law (Grundgesetz). Therefore he could not rely on the prohibition to extradite German citizens provided for in Article 16 § 2 of the Basic Law .
On 4 November 1998 the applicant applied to the Federal Constitutional Court (Bundesverfassungsgericht). He submitted that the prohibition to extradite German citizens should also apply to him because, although not being a German citizen, he had close personal and family links to Germany
On 12 November 1998 the Federal Constitutional Court declined to accept the appeal for adjudication on the ground that it did not have a sufficient prospect of success.


ITEMID: 001-105728
LANGUAGEISOCODE: ENG
RESPONDENT: ROU
BRANCH: ADMISSIBILITY
DATE: 2011
DOCNAME: MARCHIS AND OTHERS v. ROMANIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Ján Šikuta;Josep Casadevall;Kristina Pardalos;Nona Tsotsoria
TEXT: The applicants, Mr Ioan Marchiş, Mr. Gheorghe Glodean and Mr. Ion Buftea are Romanian nationals who were born in 1950, 1957 and 1970 respectively and live in Strâmtura. The Romanian Government (“the Government”) were represented by their Agent, Mr Răzvan-Horaţiu Radu.
The facts of the case, as submitted by the parties, may be summarised as follows.
1. In 2001 a private individual, B.P., started the construction of a residue-collecting basin in order to carry out the production of alcohol. The 10,000 litre capacity basin was located in the centre of the village of Strâmtura, a few hundred metres from the applicants’ windows and close to a supermarket, school, church and the town hall.
2. According to the information submitted by the Government, the residue-collecting basin was located 1 km from the first applicant’s property and 300 m from the second applicant’s property. The third applicant had a property 30 m from the basin, but during the period within which the distillery operated he did not live there.
3. B.P. started the production of alcohol without obtaining the necessary authorisations. Therefore, the mayor of the village imposed two fines on him for this breach.
4. On 27 March 2002 the Baia Mare Environmental Protection Inspectorate granted an environmental permit for the operation of the distillery, although they had initially dismissed BP’s request for authorisation. In granting the permit, the issuing authority imposed on the beneficiary an obligation not to cause discomfort in the area and interdicted him from releasing residues directly into the village’s water supply.
5. On 30 March 2002 the mayor of Strâmtura authorised the operation of the distillery.
6. In 2002 the applicants lodged a civil action with the Maramureş District Court, seeking to obtain the cancellation of the environmental permit granted to B.P. They contended that the operation of the distillery in the centre of their village, close to the school and church, had caused discomfort – not only to them, but also to other inhabitants of the village, had affected their health and had polluted the water passing through the village. They added that the residue-collecting basin was very close to the houses of the second and the third applicants, making their lives intolerable. They contended, in particular, that they had not been able to open their windows because of the smell and because of the countless flies that had been attracted by the residues collected in the basin.
7. By a judgment rendered on 9 December 2002, the Maramureş County Court dismissed their action on the grounds that the environmental permit had been lawfully granted. It stated that a public meeting had been organised by the mayor and that eighty people had attended it. It considered the applicants’ allegations concerning the insufficient number of attendees at the meeting to be unsubstantiated, noting that the law did not require a specific type of public meeting, consultation of the population or a minimum number of attendees at a public meeting. With regard to the location of the distillery in the centre of the village, the court noted that all the competent authorities had considered that the operation of the distillery would neither disturb its neighbours nor affect the environment.
8. The applicants filed an appeal on points of law, claiming, inter alia, the absence of consent from neighbours located in close proximity to the distillery. On 28 May 2003 the Cluj Court of Appeal dismissed the appeal on points of law filed by the applicants, stating that according to Law no. 453 of 18 July 2001, the consent of neighbouring proprietors was only necessary in the event of construction of new buildings or measures being taken that were necessary for their protection. It noted that the written consent of the inhabitants living in the region had been obtained, being mentioned in a minute drafted by the mayor of the village on 14 March 2002.
9. The applicants continued to submit complaints regarding the allegedly illegal and damaging activities of the distillery to all competent authorities.
10. Consequently, a review was carried out by the Prefect’s office (Corpul de control al Prefectului) on 2 July 2002. It concluded that the matters mentioned in the applicants’ complaints were not substantiated.
11. According to a letter dated 15 December 2003, the Maramureş County Council informed the first applicant that in November 2003 the Maramureş Public Health Department had cancelled an environmental health permit required for the operation of the distillery. Furthermore, from the documents submitted by the applicant it appears that on 5 December 2003 the same authority had imposed a fine on the owner of the distillery for nonobservance of the obligations established for the operation of the distillery.
12. Based on the same source of information, it also appears that the tax authorities imposed a substantial fine on the distillery owner and ordered that the distillery’s activities be ceased starting from 15 June 2004.
13. The Government submitted that the functioning of the distillery had ceased in 2005.
14. Provisions of domestic law relevant to the present case are to be found in Tătar v. Romania (no. 67021/01, ECHR 2009... (extracts)).


ITEMID: 001-22978
LANGUAGEISOCODE: ENG
RESPONDENT: SWE
BRANCH: ADMISSIBILITY
DATE: 2002
DOCNAME: S.G. v. SWEDEN
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant, Ms S.G., is a Swedish national, born in 1962 and living outside Stockholm. She is represented before the Court by Mr Carl Gustaf Elwe, a lawyer practising in Karlskoga.
The facts of the case, as described by the parties, may be summarised as follows.
The applicant lives under orderly social conditions. She is the mother of four children, her son P., born in 1990, and three daughters, born respectively in 1988, 1998 and 1999. After separating from their father Mr B. in 1993, she has been the sole holder of the custody and has assumed the daily care of all four children. However, the applicant has had several problems with her son P., who since an early age has been hyperactive and unable to concentrate, combined with aggressive behaviour. Her application under the Convention concerns certain public care measures taken with respect to him by the Swedish social authorities.
According to the applicant, her ex-husband had alcohol problems and physically abused both herself and P. In March 1996 he was convicted of having assaulted her in 1995. For the same reason he was banned from visiting the family for a period of one year – from January 1996 to January 1997.
In connection with her separation from Mr B. in 1993, the applicant contacted the mental welfare services for children and young people (the so-called “PBU”), as she had difficulties in managing P. and wished assistance in dealing with the impending separation. P. was examined by a psychologist, who observed, inter alia, that the boy was unsure of his identity and scared by his own aggressiveness and that disaster and chaos were dominant features of his world. No indication of neurological disabilities was detected then. Since P. was found to need to be in a small group of children, he was placed in a special pre-school, named Kritasken, in January 1995.
In November 1995, the Social Welfare Committee received a report from Kritasken, stating that P. was not feeling well. The applicant was described as having great difficulty in setting limits for him. P. was said to function relatively well at pre-school, where activities were structured and the staffing ratio was relatively high. The report also said that P. constantly hit his mother. As the staff understood the situation, P. and his mother were engaged in a power struggle. They had also noticed that the conflicts between the parents had an adverse effect on P. On two recent occasions, P. had had bloody scratch-marks in his face, which his mother had stated that she had caused. She had informed the staff that P. had told her that he wanted to die in order to make her sad. She had seen him sitting with the point of a sheath knife turned towards him.
In the light of this report, the social welfare office made an investigation, which resulted in the applicant and her (then) two children being admitted in April 1996 to the child psychiatry clinic at Danderyd Hospital, where they stayed for three weeks. There she received assistance in setting limits and improving routines. The staff had no impression that P. might be suffering from any neurological disabilities. To begin with, the family’s situation had slightly improved after the stay at the clinic. The social welfare office was in regular contact with the applicant. During the summer, the situation began to deteriorate again. The applicant was offered assistance in the form of a stay at a treatment centre. She, however, declined this offer. She told the social welfare officers that at present she was in no need of having contact with the social services other than in connection with the follow-up meetings at P.’s pre-school. In August 1996 she concluded her after-care contact with the clinic at Danderyd Hospital and shortly afterwards she also discontinued her dialogue contact with “PBU”.
At or around the same time, in accordance with the applicant’s wishes, the social services appointed the children’s paternal aunt and uncle as contact family in order to provide some relief to the applicant.
In November 1996 Kritasken submitted a second report to the Social Welfare Committee stating that P. had recently had great problems at the pre-school and, as they understood it, at home as well. The mother was unable to calm him down, they quarrelled and she slapped him. He had a very negative self-image and often spoke of himself in disparaging terms. On 14 November 1996, a serious incident had occurred. Together with a younger child P. had run away from the pre-school across the road in the direction of the railway track. Two teachers had run after them and had shouted to them to stop. While the other child obeyed, P. jumped down onto the track. After being dragged away from the track by one of the teachers, he was brought back to the pre-school. Later the same day, when the teachers tried to explain the danger of the trains to P., he had replied that he wished to die.
On learning about the above incident, the applicant sought assistance at the child psychiatry clinic at St. Göran’s Hospital, where she and the children were kept for observation from 15 November to 18 November 1996. According to relevant medical records, P. was particularly sad, had several times expressed that he wished to die and had stated that he wished to hurt his mother and sister. His mother was very tired and lacked the necessary strength to support him during these periods of melancholy. Conflicts often blow up between them. The mother was not only worried about P. but also about his sister. Following a meeting involving the applicant, a social welfare officer and doctors, it was found necessary to investigate her ability to assume the care of the children and what kind of support and assistance they needed.
On 19 November 1996, with the applicant’s approval, she and the children were placed at Triaden, an emergency care and investigation centre. According to the relevant report, P. had recurrent outbreaks of aggression and staff had to mediate between him and his mother and also to physically protect her. In these situations, P. was in a state of great anxiety and the mother expressed that she was afraid of him. On some occasions she escaped by shutting herself up in her room. There were few occasions when she listened to P. and comforted him in order to make him feel safe. She often raised matters in his presence that made him feel anxious and often pushed him away when he sought physical contact with her. When she allowed him to get close to her, he would variably hug her, pull her hair or scratch her face. P. sometimes hit his sister hard and she hit him back. The mother was not capable of separating them and preventing them from hurting each other. P. had said to his mother that she could kill him if she wished and had also threatened to kill his sister, who became so scared that she could not sleep.
A psychologist found, inter alia, that P’s feelings towards his mother were characterised by great ambivalence, combining a yearning for closeness, a need for control and fierce aggressiveness. It was probably necessary that other adults create structure and set limits in order for him and his mother to have a good time with each other. It was evident that he needed considerable adult support, to be in a well-defined and structured environment with clear requirements and limits being set, where he could feel that he had a certain degree of control. He also needed assistance in his relationship with his mother, both as regards closeness and emancipation. It was also recommended that P. undergo neuropsychiatric examination and suggested that care at a treatment centre could provide him with both structure, limits and emotional understanding and at the same time assist his mother in establishing a good relationship with him.
After two weeks at Triaden, the competent staff of the centre found that, because of the destructive conflicts between the applicant and P. and her inability to see to his needs, it had become untenable to keep them both there. They suggested that he receive care outside his home, preferably at a residential treatment centre. The applicant expressed a wish that he receive independent assistance outside the family as she too realised that she was unable to provide him with appropriate care. She was advised that placement at a centre would normally last two or three years. On 2 December 1996, with the applicant’s consent and in consultation with the social services, the boy was placed in an emergency family home (jourhem) not far from the applicant’s home.
In January 1997 access arrangements were agreed on, according to which P. was to spend every other week-end in the applicant’s home, in addition to visits by the applicant in the emergency family home every week.
Since the applicant appeared to have a preference for placement of P. in a foster home rather than in an institution and since the foster home placement seemed to function well, the authorities agreed that this was the best alternative.
As there were long waiting lists for a neuropsychiatric examination, the social services engaged a psychologist who, at the end of February 1997, performed a neuropsychological examination, a so-called Nepsy-test, on P. In a report of 1 March 1997 the psychologist concluded that the test profile revealed characteristics of so-called Deficits in Attention, Motor control and Perception (“DAMP”) and that immediate assistance to address P.’s special needs was called for.
In March 1997, after an unsuccessful attempt by the applicant to have Mr B.’s prohibition on visits extended, the contact between P. and his father was resumed. In accordance with the applicant’s wishes, they were to see each other in the presence of P.’s aunt and uncle. In April 1997, she stated that she no longer wished to keep them as contact family as they were not impartial. Instead, P.’s father was to see P. in the emergency family home. Around the same time she told Ms E. (the “emergency family home mother”) that, contrary to her agreement with the social services, she would bring P. home every weekend instead of every second weekend.
On 17 March 1997, the applicant told the social services that she wanted P. to return home. This was followed by discussion in the course of the spring, at meeting organised by the social welfare office and involving the persons implicated. In April 1997, the applicant appointed a personal representative to handle her contacts with the social services, since she no longer wished to meet the social welfare officers.
On 4 June 1997 the applicant declared that she no longer consented to her son’s emergency home placement.
On 5 June 1997 the Social Council of Österåker decided, under section 6 of the Act with Special Provisions on the Care of Young Persons (lag (1990:52) med särskilda bestämmelser om vård av unga; hereinafter ”the 1990 Act”), immediately to take P. into public care on a provisional basis. The Stockholm County Administrative Court confirmed the decision on 18 June 1997.
The Social Welfare Office then carried out an investigation. In its report of 19 June 1997 it observed that P. needed to be in an environment that was clearly structured, with well-defined requirements and limits and with adults who could give him support. P. had become calmer during his stay in the emergency family home, where he was functioning well with more clearly defined limits, greater security and support. The applicant had tried to the best of her ability to cope with her role as a parent and had endeavoured to find ways of meeting P.’s needs. Unfortunately, her efforts had not sufficed to provide P. with an environment in which he could grow up and develop positively. The problems inherent in the relationship between them manifested themselves clearly during P.’s stay in the emergency family home. There was a palpable risk that his health and development would be impaired as a result of deficiencies in the care in his home environment. Irrespective of the cause or causes of P.’s problems – a neurological disability, abuse on the part of his father or the applicant’s lack of capacity to take care of him – it was clear that there were very substantial problems in the mother-child relationship. Both reports from Kritasken concerned the applicant’s problems in dealing with P., as did the investigation by Triaden. The support and assistance the applicant had received in her role as parent had not brought any lasting improvement. There was no time to spare for meeting P.’s care needs. Those needs would best be satisfied by placing him in a family home after his stay in the emergency family home.
On 1 July 1997 the Social Council applied to the County Administrative Court for the taking into care of P. on a permanent basis in accordance with sections 1 and 2 of the 1990 Act.
On 9 July 1997 the County Administrative Court held an oral hearing during which the applicant, P.’s counsel, representatives of the Social Council as well as witnesses for each party were heard.
The applicant opposed the Social Council’s application, disputing that there were deficiencies in her care and that any of the other conditions in section 2 of the 1990 Act had been fulfilled. In her submission, the problem in issue was of medical and psychiatric character and she would consent to appropriate treatment of these problems.
Moreover, the court’s case file included certain reports from the Social Council, the emergency foster home and from an investigation concerning P. conducted on 21 January 1997 by a child emergency care home. The latter stated, inter alia, that P. had difficulties in controlling his aggressiveness and in showing his feelings.
By a judgment of 11 July 1997, the County Administrative Court granted the application and issued a care order concerning P. The court found that the applicant and her son had a destructive emotional relationship to one another and that she had difficulties in setting limits to her son’s behaviour. In the court’s opinion there was nothing that proved the applicant’s allegation that P. suffered from DAMP. The court held that, whatever the possible causes to the problems between mother and son, those problems had lasted for a very long period. Already when P. was a baby, the applicant had had contacts with the child welfare services and, in 1993, with a psychology centre for children and young persons. In spite of substantial assistance provided by the Social Council under a voluntary care arrangement, there had been no improvement in the relationship between mother and son. It is therefore obvious that the mother was unable to provide him with the secure and stable environment he needed. She still was unable to see to his needs for care. Accordingly, there had been a serious deficiency in the mother’s care for her son. The court concluded that the shortcoming in the applicant’s care constituted a clear risk of impairment to her son’s health and development.
On 16 October 1997 a paediatrician diagnosed P. as suffering, to a moderate degree, from the Attention Deficit Hyperactivity Disorder (“ADHD”) resulting in hyperactivity and inability to concentrate. In her report the paediatrician stated, inter alia, that P. was in need of a structured and calm environment and of assistance in solving conflicts caused by his hyperactivity and concentration disorder. The paediatrician further pointed out that it was important that P.’s carer receive psychological support.
The above decision did not alter the access arrangements agreed on in January 1997, which apparently continued to apply.
The applicant appealed against the County Administrative Court’s judgment to the Administrative Court of Appeal, which on 6 November 1997 held a further hearing in the case. The applicant adduced the paediatrician report and the court heard, at the applicant’s request, oral evidence from the applicant’s father. According to the social welfare officer, it had not yet been possible to find a foster family for P. other than the emergency family home. He therefore remained in the latter home, where Ms E. received assistance from the social services and from a family inspector.
On 27 November 1997 the Administrative Court of Appeal upheld, by three votes to two, the lower court’s judgment. In its reasoning the majority stated as follows:
“The circumstances adduced by the applicant and what has further emerged in the case do not give reasons to modify the County Administrative Court’s judgment.”
The minority stated:
“The applicant has several times both initiated and contributed to the taking of voluntary care measures with respect to P. In our opinion P.’s need for care can be provided for on a voluntary basis. The application for taking P. into public care should therefore be dismissed. ...”
On 28 January 1998 the Supreme Administrative Court refused the applicant leave to appeal.
Following the above proceedings, the emergency family home became P.’s foster home.
On 6 March 1998, the applicant again turned to the Social Welfare Committee requesting, firstly, to be reunited with P. or, in the alternative, that he be placed at Heimdalsgården, a special home for care and residence. The Committee rejected her first claim but agreed to prepare for his placement at the said institution, which took place on 18 May 1998.
After carrying out an investigation in February 1999, the social welfare office found that the applicant’s relationship with P. had improved. It was observed that he spent every other week-and with his mother, every other week-end with his father, and that the applicant participated actively in the treatment of P. at Heimdalsgården. She came one evening per week to put him to bed. Every other week she consulted a family therapist. In the light of the improvements noted, the office recommended that the care order be lifted and that care be provided at Heimdalsgården on a voluntary basis under a care plan. On 9 March 1999 the applicant agreed.
On 22 March 1999 the Social Council decided that the care order should be terminated, on the ground that there was no longer any need for maintaining the public care order with respect to P. The Council, moreover, decided to place P. in voluntary care in a specialised children’s home where he could receive treatment of his ADHD problems.
In the light of the above, the County Administrative Court decided on 6 May 1999 to remove the case from its list of cases.
During the autumn year 2000, a plan for returning P. to the applicant’s home was initiated, but was suspended after he had confessed to the police that he committed arson on a sports centre during the Christmas holidays.
During the summer holidays in 2001 he had a violent outbreak of aggression, whereupon he was returned to Heimdalsgården for treatment.
On 19 December 2001 P. returned to live in the applicant’s home and has been reunited with her since.
Care pursuant to the 1990 Act shall be provided for a young person under 18 years of age if one of the conditions referred to in sections 2 or 3 of the Act is satisfied and if it appears that the necessary care cannot be given to the young person with the consent of the person having custody of him and, if the young person himself has reached the age of 15 years, with his own consent.
Under section 2 of the Act care shall be provided if there is a “palpable risk” (påtaglig risk) of impairment of the health or development of the young person due to ill-treatment, exploitation, lack of care or any other condition in the home.
According to the preparatory works to the 1990 Act, the expression “palpable risk” was intended to indicate the degree of risk which would justify a compulsory care order. A subjective assumption that a young person is in danger was not enough and irrelevant circumstances such as public order could not be the basis of a care order. There had to be concrete or apparent circumstances supporting the fact that there was a risk for the young person’s physical or mental health (cf. Government Bill 1989/90:28, pp. 63 and 107).
According to section 6 of the 1990 Act the Social Welfare Committee may order the immediate taking into care of a young person (“provisional care order”) if it is probable that he or she needs to be provided with care under this Act and a court decision on the matter cannot be awaited owing to the risk to the young person’s health or development or because the continuing inquiry can be seriously impeded or further measures prevented. Such a decision by the Social Welfare Committee is subject to confirmation by the County Administrative Court.