Violation of Art. 8 with regard to emergency care order concerning J.;No violation of Art. 8 with regard to emergency care order concerning M.;No violation of Art. 8 with regard to normal care orders;Violation of Art. 8 with regard to failure to take steps to reunite family;No violation of Art. 8 with regard to access restrictions;No violation of Art. 13;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

Gaukur Jörundsson;Luzius Wildhaber;Nicolas Bratza;Paul Mahoney

At the beginning of the events relevant to the application, K. had a daughter, P., and a son, M., born in 1986 and 1988 respectively. P.’s father is X and M.’s father is V. From March to May 1989 K. was voluntarily hospitalised for about three months, having been diagnosed as suffering from schizophrenia. From August to November 1989 and from December 1989 to March 1990, she was again hospitalised for periods of about three months on account of this illness. In 1991 she was hospitalised for less than a week, diagnosed as suffering from an atypical and undefinable psychosis. It appears that social welfare and health authorities have been in contact with the family since 1989.

The applicants initially cohabited from the summer of 1991 to July 1993. In 1991 both P. and M. were living with them. From 1991 to 1993 K. and X were involved in a custody and access dispute concerning P. In May 1992 a residence order was made transferring custody of P. to X.

K. was again hospitalised from 22 April to 7 May 1992, from 13 May to 10 June 1992, and from 11 to 17 January 1993, on account of psychoses. She was in compulsory care between 15 May and 10 June 1992. According to a medical report dated 15 May 1992, K. was paranoid and psychotic.

On 19 March 1993, according to the social welfare authorities’ records, a discussion took place between a social worker and K.’s mother. K.’s mother said that her daughter’s health condition was really bad and that K. had destroyed a childhood picture of hers, a wedding photo of the mother, broken a glass and “pierced the eyes” of all appearing in the photos. K.’s mother had said that she was tired of the situation, as she did not get any support from the mental health authorities. She added that she was worried and afraid that “again something must happen before K. is admitted to care”.

On 24 March 1993 K. was placed under observation with a view to determining whether she should be placed in compulsory psychiatric care, having initially been diagnosed as suffering from psychosis. The conditions for compulsory care were not considered to be met but she remained in voluntary care until 5 May 1993.

Allegedly, X did not allow K., P. and M. to meet. On 11 May 1993, when K. was again pregnant, her access to P. was further limited by an order of the District Court of R. Basing itself on a doctor’s opinion, the court held that the child’s mental development would be endangered if the meetings between P. and K. continued without supervision as had been ordered in 1992.

According to the records of the social welfare authorities, M. showed signs of behavioural problems. On 30 March 1992 a psychologist reported how M. had played with two dolls saying – in very vulgar terms – that they were performing sexual acts. On 17 February 1993 K. was said to have broken a mirror in the presence of M. who had kept repeating: “mummy broke the mirror ...”

Notes of the social authorities of 24 and 30 March 1993 among others state that games which M. played and pictures he drew were of a destructive nature. According to the notes taken on 30 March, he had lately, while the children were singing together at the day-care nursery, shown immense hatred, threatening “to kill everybody”. The occasions when K. fetched him were described as “unpleasant scenes”, M. shouting and hitting his mother who did not react. It was noted, however, that he no longer played doll games with sexual connotations.

According to the records of the social welfare authorities, a discussion between K., her mother, T. and a number of social and mental-health care officials took place on 31 March 1993, during which it was mentioned that the authorities might have to intervene in M.’s upbringing, from the child-protection point of view, in a more drastic way than had been the case so far. It appeared that in connection with K.’s recent hospitalisation T. had “forcibly” taken her from a restaurant, which had made K. furious, with the consequence that she had thrown things around; for example, the microwave oven had ended up on the floor. T. had said that K. was unable to control herself.

On the following day the child welfare support group, consisting of various social and health authorities, agreed that the aim should be to place M. in a children’s home for three months as an assistance measure of open care under section 14 of the 1983 Child Welfare Act (lastensuojelulaki, barnskyddslag 683/1983 – “the 1983 Act”), during which period psychological examinations of the child would be carried out.

On 3 May 1993 a social welfare official decided on behalf of the Social Welfare Board (perusturvalautakunta, grundtrygghetsnämnden) of S. to place M. in a children’s home for a period of three months. This was to be regarded as a short-term support measure pursuant to the 1983 Act. The applicants had been consulted, together with K.’s mother and sister, on 8 April 1993, in order to find an open-care measure which would be practicable. According to the records of that meeting, no such practical measure had been proposed by any of the participants. The applicants had then been heard again on 21 April 1993 and had not objected to the placing of M. in a children’s home.

In an opinion of 12 May 1993, requested by the Social Welfare Board, doctors M.L. and K.R. considered that K. was not at that time able to care for M., but that her mental state would not necessarily permanently prevent her from caring for him. Doctors M.L. and K.R. worked at the hospital of H., where K. had been cared for since 1991 during the periods indicated above.

On 7 June 1993 it was reported by the social welfare authorities that, when K. and T. had come to the children’s home where M. was staying, the boy had undergone a total change in his behaviour, characterised by anger, hatred, swearing, etc. T. had said that he was really tired of the situation and that in his view K. was in need of hospitalisation. When a visit to the health centre had been suggested to her, she had become very angry.

According to a statement of 22 June 1993 by the children’s home, K. and T. had come to the home on 17 June 1993. While T. had been playing with M., other children had come to tell the staff that K. had asked a 3-year-old girl what her name was. As the girl did not reply, K. had raised her voice and shaken the girl, not letting her go until an older girl had given the child’s name. The other children had been frightened by K.’s behaviour.

On 11 June 1993 the social welfare official who had decided on 3 May 1993 to place M. in a children’s home informed the University Hospital of T. and the local hospital of S. in writing that she was very worried about the health of K. and the baby she was carrying. She requested the hospitals to contact her as soon as K. arrived at the hospital and, more particularly, at the time of the baby’s delivery. She also expressed the wish that health-care professionals should pay special attention to the relationship between the mother and the new-born baby from the very beginning.

On 18 June 1993 K. was taken to a district hospital, where she gave birth to J. on the same day. According to the hospital records, the mother stayed calm during the delivery. After the delivery a written decision concerning an emergency care order was served on the hospital. The child was taken to the children’s ward. The mother’s behaviour in the ward was later found to be somewhat restless but not completely disorderly. The hospital records indicate that she understood the situation and wanted to leave hospital the following day. Medication to prevent the secretion of milk was prescribed. It seems that K. left the hospital on 19 June 1993, that is, the following morning, without any post-natal examination. She went to her mother’s home, where she started pushing an empty pram around the place.

J. was immediately placed in emergency care, pursuant to section 18 of the 1983 Act. After the birth of their child, K. and T. were informed of this decision by two social workers at the hospital of H. The Social Director, who had made the decision on behalf of the Social Welfare Board, noted that K.’s mental state had been unstable during the last stages of her pregnancy. He considered that the baby’s health would be endangered since K. had found out about the plans to place the baby in public care. Lastly, he considered that the baby’s father, T., could not guarantee its development and safety. In addition the Social Director referred to the family’s long-standing difficulties, namely, K.’s serious illness and occasionally uncontrolled emotional reactions which could be traumatic for the children, T.’s inability to care for both J. and K., K.’s reluctance to accept guidance, the impossibility of putting the whole responsibility for J.’s development on T., and the impossibility of providing open-care support measures to the necessary extent. The applicants were not heard prior to the decision. On 24 June 1993 the applicants were notified in writing of the decision to take the new-born baby into public care. The notification was also faxed to K.

On 21 June 1993 the Social Director also placed M. in emergency care, citing principally the same reasons as in his decision of 18 June 1993 concerning J.

The applicants did not appeal against the emergency care orders.

On 21 June 1993 the Social Welfare Board took note of the emergency care orders and prohibited all unsupervised access between K. on the one hand, and J. and M. on the other. The number of supervised visits, however, was not restricted. The Board decided to continue preparations for taking M. and J. into care.

A meeting was held by social workers at the family centre on 21 June 1993, before the arrival of the baby from the hospital and in the absence of the applicants. It is mentioned in the report that there was a plan to prohibit the mother’s visits for a month on the ground that her reactions could not be predicted as she had, for example, broken things at home. After this initial period she would be allowed to visit the baby without restriction, but accompanied by her personal nurse. However, this plan was not implemented. The following entry appears in the register for 24 June: “The mother may come with her personal nurse if she wants. Other visitors not allowed for the time being.”

K. was asked to come with T. to the social welfare office on 22 June 1993 at 11.30 a.m. in order to be informed of the decision of 21 June 1993 by the Social Director concerning M. On 24 June 1993 K. and V. (M.’s biological father) were notified in writing of the decision of 21 June 1993. The notification was also faxed to K.

On 22 June 1993 K. was hospitalised voluntarily at the hospital of H. on account of psychosis, having obtained a referral from a doctor at a health care centre. She was treated there until 30 June 1993.

On 23 June 1993 J. was placed in the family centre. T. visited her the same day.

At the beginning of July 1993 T. left the applicants’ home, having been told by the social welfare officials that he had to break off his relationship with K. “if he wanted to keep” J. The applicants nevertheless continued their relationship.

On 15 July 1993 the Social Welfare Board gave its decisions taking J. and M. into “normal” public care, giving reasons similar to those mentioned in the emergency care orders (see paragraph 24 above), and prolonged the access restriction until 15 September 1993. K. was allowed to see the children only in the company of her personal nurse. The Board essentially considered that K.’s state of health remained unstable; that she was subject to aggressive and uncontrolled emotional moods; and that public care proceedings were a severe mental ordeal for a patient. As regards J., the Board therefore believed that her personal security could be jeopardised if access were to take place without supervision. As regards M., the Board feared that K.’s visits to the children’s home “could no longer be supervised by its staff, which would not be in his interest”. Before the decisions of 15 July 1993 the applicants had been heard and had expressed their objection to the care decisions envisaged.

On 15 July 1993 K. visited both her children, accompanied by her personal nurse. The register indicates that it was “a difficult situation”.

On 19 July 1993 T. moved to the family unit of the family centre with J.

On 20 July 1993 K. was again hospitalised in voluntary care at the open ward of the hospital of H., suffering from psychosis. She left hospital the following day, however. On 26 July 1993 she was placed under observation with a view to determining whether she should be placed in compulsory psychiatric care. On 30 July 1993 she was committed to compulsory psychiatric care. According to the file, her relatives had earlier been worried about her and had contacted the hospital in order to get her into hospital care. They reported that K. had disappeared from her home, where she had behaved in an unsettled and aggressive manner. Her hospitalisation lasted until 27 October 1993, that is, three months.

During the period between 18 June and 31 August 1993 K. visited her children at their respective children’s homes. During the visits she was accompanied by her personal nurse from the hospital, who was in contact with the social welfare authorities and arranged the visits having regard to K.’s state of mental health. According to the centre’s register, she visited J. twice during this period.

According to a statement made by a social worker on 4 August 1993, T. had taken good care of J., first at the hospital until 23 June 1993 and later on at the family centre. It was agreed that J. would stay at the family centre and that T. would visit her every other day. J. would visit her father for the first time from 13 to 15 August 1993, during which time T. would organise her christening. The intention was that the baby could move in with her father later on.

After T.’s paternity had been established on 13 July 1993, T. and K. were granted joint custody of J. on 4 August 1993.

T.’s travel expenses to the centre were paid for by the social welfare authorities. From the centre’s records it can be deduced that T. succeeded in creating a relationship with the baby and learned to take good care of her. The home leaves were spent with T. first at his mother’s house and later in his new home.

On 12 August 1993 the Social Welfare Board referred both public care orders to the County Administrative Court (lääninoikeus, länsrätten) for confirmation, as the applicants had opposed them. In support of its referrals, the Board submitted a statement by a social welfare official dated 25 August 1993, according to which T. would not be able to care both for M. and the new-born J. alone, since K. was living in the same home and had been psychotic for the last four years. T. had been in contact with J. at the children’s home three to four times a week. While staying in a flat attached to a municipal children’s home, he had cared for J. for two whole weeks and had subsequently cared for her three days a week in his new home. The Board had therefore begun investigating whether it would be possible to entrust him with the responsibility for J. with the help of support measures taken by the Board.

On 9 September 1993 the County Administrative Court confirmed the care order concerning J., considering that K. had been mentally ill; that the applicants had had conflicts “as a result of which T. had moved away from their home at the beginning of July 1993”; that because of K.’s illness and the family’s other problems the applicants had been unable to provide J. with adequate care; that the care support provided to the family had not sufficiently improved the family’s situation and that the measures could not be expected to satisfy J.’s care needs. No hearing was held.

On 11 November 1993 the County Administrative Court confirmed the care order concerning M., repeating the reasons put forward in its decision of 9 September concerning J. No hearing was held.

In an appeal to the Supreme Administrative Court (korkein hallinto-oikeus, högsta förvaltningsdomstolen) against the confirmation of the public care order concerning M., the applicants were represented by the Public Legal Adviser (yleinen oikeusavustaja, allmänna rättsbiträdet) of S. The Supreme Administrative Court dismissed the appeal on 23 September 1994.

On the same date the Supreme Administrative Court extended the time allowed for an appeal by K. against the confirmation of the care order made in respect of J.

On 18 October 1994 K. appealed against the care order in respect of J. as confirmed by the County Administrative Court on 9 September 1993. On 21 August 1995 the Supreme Administrative Court granted K. cost-free proceedings as from 1 March 1994, appointed Ms Suomela as her representative and upheld the County Administrative Court’s decision of 9 September 1993.

By a decision of 21 January 1994 the Social Welfare Board placed J. in a foster home in K., a town some 120 km away from the applicants’ home. M. joined her on 7 February 1994. The foster parents had no children of their own. Social welfare officials told the applicants and the foster parents that J.’s and M.’s placement would last “for years”. The applicants had proposed that the children’s public care be implemented in the homes of relatives.

In the meantime, on 15 August 1993, J. was christened in the presence of K., T. and M.

A consultation was held at the children’s home, on 18 August 1993, in the presence of T. According to the records, K.’s mental health was very unstable and her psychiatric treatment was expected to have to be continued for four to five years. T., however, had expressed his hopes that K. and he could, together, take care of J. in the future. It was agreed that J. would stay at the children’s home and would visit T. every week from Thursday until Saturday, beginning on 28 August 1993. T. would visit J. on other days, according to an arrangement to be agreed with the children’s home.

On 14 September 1993 the Social Welfare Board prolonged the access restriction until 15 December 1993.

The following notes of a social welfare official appear among those in the case records of the Social Welfare Board:

“14 September 1993:

... In addition, the importance of future access between J. and T. has now been questioned, since J.’s placement in [public foster care] is under preparation. It will be difficult for T. to give up J. ...”

“13 October 1993:

K. ... states that she is considering moving [back with T.] when she is discharged from the hospital on 29 October. ... [Her] wish is for M. and J. to be placed in the same [foster] family. ...”

“18 October 1993:

... T. agrees to J.’s placement in a [foster] family. ...”

“25 October 1993:

... T. is slightly opposed to J.’s placement in a [foster] family. ... It is again explained [to him] why J. cannot live with him as long as [the applicants] continue their relationship. ...”

“26 October 1993:

... The essential issue from J.’s point of view is [the applicants’] relationship; if [it] continues, J. cannot stay with T. ... The alternatives are: J. comes back home to T. or is placed in [foster care]. ... [He] can provide the basic care and upbringing alone provided he receives some support. ...”

“27 October 1993:

... Access between M. and K. has been successful now that T. has been attending [the visits]. ...”

“29 October 1993:

... The father has been responsible for the care of the institutionalised child. He has been active and acted on his own initiative. He has fed, clothed and bathed the child. He has also taken care of the child’s outings and of rocking the baby to sleep. The father has treated the child naturally and with consideration; he has talked a lot to the child and showed her tender emotions. He has enjoyed his time with the child on the child’s terms. The father has treated the child patiently and with warmth, taking into consideration the needs of the child.

The mother has visited the child five times and stayed only for a moment each time.

... J. has had the advantage of regular interrelation with one person who takes care of her, namely her father. A safe relationship with the father has given the child a feeling of basic security, which acts as a basis for positive development of her emotional life. J. has the necessary resources to grow up and develop into a healthy and well-balanced child. In the circumstances, the foundation for the family placement is good.”

On 27 October 1993 K. was discharged from the hospital of H.

On 2 February 1994 the Social Welfare Board drew up a plan concerning the implementation of the public care. The applicants’ alternative plan was allegedly ignored. For instance, the children could not meet their maternal grandmother at her home.

After the adoption of the care plan on 2 February 1994, the applicants requested a relaxation of the access restriction. For example, T. had been permitted to see J. only once a month.

On 21 March 1994 the applicants requested, inter alia, that the Social Welfare Board should draw up a public care plan aiming at the reunification of the family.

On 3 May 1994 the social welfare authorities organised a meeting in order to revise the care plan of 2 February 1994. The applicants and their representative did not attend the meeting.

On 17 May 1994 the Social Director restricted both applicants’ access to the children to one monthly visit at the foster home, to take place under supervision and last three hours. The Social Director considered that the grounds for public care still existed. In his view, although the applicants were dissatisfied with the visits set out in the care plan, affording the children an unlimited right to see their parents would create an obstacle to their successful placement. The applicants appealed.

On 28 September 1994 the County Administrative Court held an oral hearing concerning the access restriction imposed on 17 May 1994. It took evidence from two psychiatrists, who had interviewed K. One of them, Dr T.I.-E., did not know K. personally but commented on a diagnosis concerning her mental state by indicating that K. had a tendency to react in a psychotic manner to conflict situations. Dr K.P. stated that K.’s state of health did not prevent her from caring for her children. Consequently, if her illness had been the reason for the access restriction, that reason no longer existed.

In a written expert opinion, requested by the Social Welfare Board and submitted to the County Administrative Court, Dr E.V., a child psychiatrist, expressed the opinion that the children should be permanently cared for by the foster parents and that the applicants’ visits should, for the time being, be discontinued so as to protect the children and the foster parents. According to the applicants, Dr E.V. had not met them or the children, nor had he consulted the other psychiatrists before making his proposal.

On 11 October 1994 the County Administrative Court upheld the access restriction issued on 17 May 1994. It noted that neither of the witnesses who had been heard orally had been willing to state any opinion as regards the children’s development. It reasoned, inter alia, as follows:

“... [By allowing] access to take place once a month and [by allowing contact through correspondence] it will be ensured that the children will retain knowledge about their biological parents. If the grounds for public care later cease to exist, a reunification of the family will thus be possible. ...”

The County Administrative Court dismissed the applicants’ request for exemption from costs, since the relevant legislation did not cover disputes concerning access restrictions. At the court’s hearing, the applicants were nevertheless assisted by Ms Suomela.

On 26 May 1994 the applicants requested that the Social Welfare Board discontinue the public care of M. and J.

On 18 September 1994 the Social Director allegedly told the applicants that any further children born to them would also be placed in public care. According to the Government, the Social Director only told them, when expressly asked, that it was possible that any further children born would be taken into public care.

In an opinion of 22 September 1994 submitted at the Social Welfare Board’s request, Dr K.P., a psychiatrist, commented on the possibility of revoking the public care orders. She concluded that K.’s mental state would not prevent her from having custody of the children. According to Dr K.P., K.’s efforts to have public care discontinued and access restrictions relaxed showed that she possessed psychological resources. She noted, inter alia, that T. was K.’s closest support in the care and upbringing of the children. In addition, K.’s mother, at the time her guardian ad litem, was ready to help in caring for them. Dr K.P., however, added that she could not, as a psychiatrist for adults, take any stand as regards the interests of the children. Dr K.P.’s opinion was also based on a report submitted by Dr K.Po., a psychologist, who had come to the same conclusion as regards K.’s ability to have custody of her children.

The Public Legal Adviser advised against requesting revocation of the care orders.

K. was hospitalised from 15 to 24 February and from 11 April to 29 May 1995, apparently on account of psychosis.

On 14 March 1995 the Social Welfare Board rejected the applicants’ request of 26 May 1994 that the care order be revoked, stating as follows:

“At the moment the health of the children’s mother, K., is better and the family situation has changed in other respects in comparison with the situation in 1993 when the decisions to take the children into care were made.

According to Dr K.P., a psychiatrist, K. still has ‘a lot of instability’ in her emotional life as well as fragility, brought about by the last five years’ experiences and the diagnosis of mental illness for which she needs – and will need for a long time to come – therapeutic support and treatment. A regular medication is also needed in order to guarantee her continued well-being and to make it possible for her to manage in open care and to have custody of her children. Dr K.P., however, did not give her more precise opinion as to K.’s ability to take care of and bring up her children even though Dr K.P. was explicitly asked to give such an opinion.

K. can have custody of her children. She cannot, however, be responsible for the needs and education of the children – not even with the support of T. and the open-care support measures. Their ability to act as educators taking care of the children’s needs is inadequate.

According to the statement given by the children’s clinic of the municipality of K., the ability of K. and T. to understand the needs of the children and to respond to them is very limited. Even though T. is capable of interaction with the children, he finds it difficult to respond to the children’s emotional needs. K. is also incapable of creating an emotional relationship with the children. At an earlier stage, Dr J.H., a psychologist at the local health care centre, reached the same conclusion in her statement given during the custody proceedings concerning K.’s oldest child. In his expert statement Dr E.V., a child and youth psychiatrist, reached a similar conclusion. Already in the spring of 1992 Dr J.H. realised that K.’s problem was related to the fading of the boundaries between her and her children. She stated that K. amalgamated herself and her children into a single entity without being able to see the unique and individual nature of the children. According to J.H., K. was also unable to take into account the children’s needs in relation to their age. Dr E.V. finds that the children do not seem to be objects independent of K. but that she sees them as ‘self-objects’. She finds it difficult to realise that children are individual human beings in need of love and care. Instead, she sees them as if they were meant for her own personal use.”

The applicants appealed on 5 April 1995, requesting that they be granted exemption from costs and afforded free legal representation. They also requested an oral hearing.

On 7 April 1995 a further child, R., was born to the applicants. Having given birth, K. left the hospital for a while on the same evening with the new-born baby wrapped in a blanket, walking barefoot in the cold weather until the hospital staff realised what had happened and intervened.

On 13 April 1995 K. was committed to compulsory psychiatric care and treated at the hospital of H. until 29 May 1995, while R. was being cared for by T. According to a psychiatrist’s observation of 10 April 1995, K. “must have been suffering from paranoid schizophrenia for some time”.

On 15 June 1995 the County Administrative Court granted the applicants exemption from costs and appointed Ms Suomela as their representative in the case concerning their appeal against the Social Welfare Board’s decision of 14 March 1995. It decided not to hold a hearing in respect of the applicants’ request for a revocation of the care orders and provided the parties with an opportunity to supplement their written observations.

On 28 September 1995 the County Administrative Court rejected the applicants’ appeals of 5 April 1995 without holding an oral hearing. The court noted, inter alia, that according to the medical certificates, K.’s state of health had improved but her emotional life was still unstable. She therefore continued to be in need of psychotherapy and medication. In addition, a further child had been born to the applicants and K. had again been treated at the hospital of H. These two factors had caused an additional strain militating against a revocation of the care orders.

On 17 November 1994 social welfare officials revised the public care plan, proposing that the children meet the applicants once a month on neutral premises at the Family Advice Centre of K., where the foster parents were living. The applicants objected to this proposal, considering that it would have entailed a further restriction of their access to the children. Instead, they requested two meetings a month, one of which was to be at their place of residence. On 22 December 1994 they asked for a separate written decision concerning their access request, so that they could appeal against it.

In a letter of 22 December 1994 the Social Director informed the applicants that there were no longer any grounds for the access restriction. Meetings between the applicants and the children were nevertheless only authorised for three hours once a month on premises chosen by the Social Welfare Board. They were also informed that the meetings would be supervised.

In his decision of 11 January 1995 the Social Director confirmed that there were no longer any grounds for the access restriction. On 31 January and 28 February 1995 the Social Welfare Board confirmed the decision of 11 January 1995. The applicants appealed.

As regards the applicants’ appeal against the Social Welfare Board’s decisions of 31 January and 28 February 1995, the County Administrative Court considered, on 15 June 1995, that the revised care plan drawn up on 17 November 1994 had already entailed an access restriction which had later been renewed by further decisions, without the applicants having been properly heard, in respect of their access request. The matter was referred back to the Social Welfare Board for further consideration.

In the light of the County Administrative Court’s decision the Acting Social Director, on 28 June 1995, formally restricted the applicants’ access to the children to one meeting a month up to 31 May 1996. The meetings were to take place in the foster home. In addition, the foster parents were to visit the applicants with the children every six months. The Director considered, inter alia, that it was important that the children settle themselves in the foster family environment in which they would grow up. Closer contacts with their parents would mean change and insecurity as well as the creation of a new crisis in their development. The process of settling which had started well would be jeopardised. For the children’s progress it was therefore necessary that their situation remain stable and secure. The Director’s decision was confirmed by the Social Welfare Board on 22 August 1995. The applicants appealed.

On 3 November 1995 the County Administrative Court rejected the applicants’ appeal against the access restriction confirmed on 22 August 1995.

On 25 May 1996 social welfare officials revised the public care plan, proposing that the children meet the applicants once a month on the premises of a school at the children’s place of residence. As the applicants were not present when the proposal was made, the care plan was again revised on 9 October 1996 in so far as the access restriction was concerned. The applicants then proposed that the children meet them without supervision once a month. The public care plan was, however, revised as proposed by the social welfare officials.

On 17 June 1996 the Social Director restricted both applicants’ access to the children, until 30 November 1997, to one monthly visit on the premises of a school at the children’s place of residence, where access was to take place under supervision for three hours. One of the foster parents was also ordered to be present at the time of the access. The Social Director’s decision was confirmed by the Social Welfare Board on 20 August 1996. The applicants’ appealed against the decision to the County Administrative Court, requesting an oral hearing. The court obtained a statement from a child psychiatrist, Dr J.P., who was also recommended by the applicants’ representative to the Social Welfare Board. Dr J.P.’s statement included the following observations:

“The right of access of M. and J. to the persons close to them must primarily be examined in the light of their psychological growth and development and their health. This requires an examination of the quality, permanence and durability of their human relationships, because psychological growth and development take place in interaction with human relationships. In my opinion, the human relationships are to be examined from the children’s point of view. ...

... In conclusion, I note that before M. was placed in the children’s home ... the mother had been in psychiatric hospital for treatment eight times, making a total of thirteen months. Thus, M. had lived with his mother for forty-five months, namely, three years and nine months. The longest that they spent together was two years and one month. ... T. has, as ‘stepfather’, helped to look after M. for at most ten months. ... the foster parents have so far looked after M. for three years and three months without interruption. ... In practice, M. has not had any kind of relationship with his biological father ...

In the light of the above, I note that the human relationships in M.’s early childhood have, owing to the circumstances, been non-continuous, short-term and changing. The most stable and continuous relationships have been with his foster parents ... Therefore, these relationships are the most relevant and important ones for M.’s psychological growth and development.

... J. was born in June 1993. She was taken into public care immediately after she was born. At first, she stayed in the district hospital for a short time, and later at a reception home for small children. T., as the biological father of J., looked after her for two weeks in June and August 1993. J. was placed in the foster family ... in January 1994, when she was some seven months old. So far, J. has stayed with her foster family for some three years and three months without interruption. J. is now a little over 3 years and 10 months old.

In the light of the above, I note that, due to the circumstances, J. has not had any significant and important relationships other than those with her foster parents. J.’s relationship with her foster parents is of primary importance for her psychological growth and development. ...

... From the children’s point of view, especially, but naturally also from that of the foster parents, the foster family is a family to which the principles concerning family life enshrined in the United Nations Convention on the Rights of the Child and in the European Convention on Human Rights can be applied in the same way as to biological families. This point of view is especially important when, due to the circumstances, the biological family has not lived together.

In the light of the above, I note that the arrangements for helping and supporting the foster parents of M. and J. are in the best interests of the children. The arrangement will, in the first place, ensure the important, continuous and safe human relationships of M. and J. with their foster parents ...

It is also important for M. and J.’s psychological growth and development that, in the safe and stable conditions provided by the foster family, they are able to form and maintain a good internalised picture of their biological parents ... from whom they have been separated because of the circumstances.

In my opinion, this can be done by complying with the decision of the Social Welfare Board of S. of 20 August 1996 concerning the right of access. At present, an unrestricted right of access or a right of access of the extent suggested by the applicants is not in the interests of the children, because K. and T. are not capable of meeting the emotional needs of M. and J. ... Such arrangements concerning the right of access would clearly endanger the health and development of M. and J. In my opinion, the question of an unrestricted right of access should be evaluated when the children have attained the age of 12.”

In a statement of 10 September 1996 Dr K.P. stated that in her opinion K.’s psychiatric state did not preclude K.’s having custody of her daughter R.

On 2 April 1997 the care plan was again revised by the social welfare authorities. The applicants had been informed of the time of the meeting concerning the revision of this care plan on home visits on 15 January and 10 March 1997. Their representative had also been informed of the meeting by a letter sent on 10 February 1997. The applicants did not attend the meeting, and neither did their representative. The applicants were thus not explicitly heard in this connection but, as they had expressed their opinion on other occasions, the authorities recorded their point of view in the plan.

On 12 June 1997 the County Administrative Court rejected the applicants’ appeal against the Social Welfare Board’s decision of 20 August 1996 to restrict the applicants’ access right (see paragraph 80 above). It refused the applicants’ request for an oral hearing.

Although the applicants had stated only in their reply that the appeal was also made on R.’s behalf, the County Administrative Court found in its decision that it was in part made in her name. The court stated that a person to whom a decision was directed, or upon whose right, duty or interest it had a direct effect, had the right of appeal. The court considered that the Board’s decision, which concerned R.’s siblings’ and parents’ right of access, was not such a decision.

On 28 November 1997 the Social Director restricted the applicants’, and consequently their youngest child R.’s, access to J. and M. to one monthly visit of three hours on the premises of a school at the children’s place of residence until the end of 1998. The applicants did not appeal.

The care plan was again revised on 1 December 1998.

According to a statement made on 3 July 1998 by Dr K.M. (formerly Dr K.P.), K. had not been hospitalised since May 1995 and her health had been stable since the beginning of 1995. There had been no problems concerning the care of R. (who had lived with her parents all the time and had not been taken into care). It was recommended by Dr K.M. that the social welfare authorities should reduce or discontinue control visits to the applicants’ home in order to give K. the possibility of settling down to normal life without constant supervision by the authorities.

The restriction orders were extended by the Social Director on 11 December 1998, until the end of 2000. The visits were to take place under supervision on the premises of a school at the children’s place of residence. However, one of the visits was to take place at the applicants’ home in the presence of the foster parents. The Social Director considered, inter alia, that the reunification of the family was not in sight as the foster family was now the children’s de facto home; that the applicants’ access to the children once a month and through correspondence was enough to maintain the children’s awareness of their biological parents; and that closer contacts with the applicants would endanger the children’s development, bring change and insecurity and create a new crisis in their development. The applicants appealed against this decision to the Social Welfare Board which, on 2 February 1999, rejected the appeal and upheld the Social Director’s decisions. In its reasoning, the Board quoted both the County Administrative Court and Dr J.P.

According to the reports drawn up by the supervisor who attended the meetings of the children and the applicants during the period from 25 May 1996 to 10 January 1999, the adults got on quite well together during the meetings. J. often played games with M. When R. was smaller, J. played by herself, but later it seemed that the girls, J. and R., spent more time together. On the other hand, it seemed that the first applicant made very little contact with J. and M. According to the supervisor’s description, especially in the earlier reports, the first applicant seemed to have concentrated on R.

M. visited K. and T. at their home for the weekend of 21 to 23 July 2000 without supervision.

The applicants appealed against the Social Welfare Board’s decision of 2 February 1999, concerning the right of access, to the Administrative Court (formerly the County Administrative Court). An oral hearing, at which M. was also heard, was held on 3 October 2000. In its decision of 13 October 2000 the administrative court upheld the Social Welfare Board’s decision.

The social authorities reviewed the care plan on 23 November 2000, having consulted the applicants, among others. It was decided that the children would remain in the foster home. According to the care plan, M. and J. are allowed to meet K. and T and others close to them, as from 1 January 2001 until 31 December 2001, without supervision once a month alternately at the applicants’ home and the foster parents’ home. The meetings at the applicants’ home will take place from Saturday 11 a.m. until Sunday 4 p.m., and the meetings at the foster parents’ home on Sundays, from 11 a.m. until 5 p.m. The children are also allowed to meet their other relatives freely during those meetings. In addition to the above, the children will also spend a day and a night with the applicants each Christmas, and two weeks each summer during their school holidays.

J. and M.’s foster mother died in May 2001.

Section 1 of the Child Custody and Right of Access Act (laki lapsen huollosta ja tapaamisoikeudesta, lag ang. vårdnad om barn och umgängesrätt 361/1983) defines what is meant by child custody and what is required from the person having custody.

The Child Custody and Right of Access Act requires both the parents and the authorities to ascertain the wishes and views of the child when making and implementing a decision concerning the child, if this is possible in view of the age and stage of development of the child (sections 4(2), 8, 9(4), 11, 34(1)(3); and sections 34(2), 39(1) and (2) and 46(2)). Court decisions concerning custody and access cannot be executed against the will of a child who has attained the age of 12.

According to the Child Welfare Act (lastensuojelulaki, barnskyddslag 683/1983 – “the 1983 Act”, as amended by Law no. 139/1990), a child who has attained the age of 12 is given an independent right to be heard in most important child welfare decisions related to his or her person and to appeal against them.

In situations where the child does not live with its parents or where they are separated because of the need for protection or some other relevant reason, the child has in principle the right to maintain personal relations and contacts with its parents. However, this right may be limited on specific grounds and by certain procedures prescribed by law, for example, where there is a danger or threat caused by contacts or on the basis of the best interests of the child (section 2 of the Child Custody and Right of Access Act; sections 19(2), 24 and 25 of the 1983 Act; Articles 9 and 10 § 2 of the Convention on the Rights of the Child).

According to section 1 of the 1983 Act, a child is entitled to a secure and stimulating growth environment and a harmonious and well-balanced development, and has a special right to protection. The objective of the 1983 Act is that a child will in all circumstances get such care and upbringing as is required by the Child Custody and Right of Access Act.

Where the parents or those who have custody of the child are not able to provide the child with sufficiently secure conditions for its growth and development, the social welfare board and its officials must take the necessary measures in accordance with the 1983 Act. These measures include the assistance in open care referred to in sections 12 to 14 and the duty to take a child into care and provide substitute care referred to in section 16.

According to section 13(1) of the 1983 Act (as amended by Law no. 139/1990), where the need for child welfare is caused primarily by inadequate income, deficient living conditions or lack of housing, or when these factors constitute a serious obstacle to the rehabilitation of a child and family, or a young person in the process of becoming independent who had been a recipient of social welfare assistance before attaining the age of 18, local authorities must provide adequate financial support without delay and correct deficiencies in housing conditions or provide housing according to need.

Assistance in open care, referred to in section 13(2) of the 1983 Act, includes general assistance in accordance with the Social Welfare Act (sosiaalihuoltolaki, socialvårdslag 710/1982). In addition to general assistance, special forms of assistance are mentioned. These include voluntary help or help from a supporting family; appropriate therapy; holiday and recreational activities; and assisting a child in his or her education and training, in job and home finding, and in his or her leisure activities and other personal needs, by providing financial and other support. The assistance must be provided in cooperation with the child or young person and the parents or other persons caring for him or her.

According to section 16 of the 1983 Act, the social welfare board must take a child into care and provide substitute care for him or her if (a) the child’s health or development is seriously endangered by lack of care or other conditions at home, or if the child seriously endangers his or her health and development by alcohol or drug abuse, by committing an illegal act other than a minor offence or by any other comparable behaviour; (b) the measures of assistance in open care are not appropriate or have proved to be inadequate; and (c) substitute care is considered to be in the best interests of the child.

If a child is in imminent danger for a reason stated in section 16 or is otherwise in need of an urgent care order and substitute care, the social welfare board may take him or her into care without submitting the decision to the county administrative court for approval (section 18 of the 1983 Act).

According to section 9(2) of the 1983 Act, substitute care must be provided without delay where it is needed and is in the best interests of the child.

An emergency care order expires within fourteen days of the decision unless a normal section 17 care order is applied for during that period. Such a care order must be made within thirty days or, on special grounds, within sixty days of the emergency order. A decision on emergency care can be appealed against in the normal way.

Taking into care differs from adoption in that the parents are able to keep limited rights and responsibilities regarding custody and guardianship.

Care in accordance with section 16 of the 1983 Act terminates when the child attains the age of 18 or marries. Public care may be terminated earlier where the conditions for the termination of care exist.

According to section 20 of the 1983 Act, the social welfare board must discharge a child from care when there is no longer any need for the care or substitute placement referred to in section 16, unless such discharge is clearly contrary to the best interests of the child.

On the custody of a child in care, section 19(1) of the 1983 Act stipulates:

“When the social welfare board takes a child into care, it shall be empowered to decide on the child’s care, upbringing, supervision, other welfare and residence. The board shall, however, make every effort to cooperate with the parents or other persons having custody of the child.”

Through a decision to take a child into care the social welfare board automatically takes over the power to decide on contacts between the child and its parents and other persons close to the child (section 19(2) of the 1983 Act).

According to section 24 of the 1983 Act, a child who is in substitute care must be guaranteed the continuous and secure human relations that are important for his or her development. The child is entitled to meet his or her parents and other persons close to him or her and to keep in touch with them. The social welfare board must support and facilitate the child’s access to his or her parents and to other persons close to him or her.

According to section 25 of the 1983 Act, the social welfare board or the director of a residential home may restrict the right of access of a child in substitute care to its parents or other persons close to him or her if (a) such access clearly endangers the development or safety of the child, or (b) such a restriction is necessary for the safety or security of the parents, the children or the staff in the residential home. On the above-mentioned grounds, the social welfare board may decide that a child’s whereabouts shall not be disclosed to its parents or custodians while the child is in care.

According to section 25 of the 1983 Act and section 9 of the Child Welfare Decree (lastensuojeluasetus, barnskyddsförordning 1010/1983), a decision concerning restriction of the right of access is valid for a specified time, and it must name the persons whose rights are restricted. In addition, the decision must specify what kind of contacts are restricted and the scope of the restriction.

A decision to restrict the right of access restricts the child’s right to meet its parents and other persons close to it. Such persons close to the child are the child’s guardian or other legal representative, relatives and those persons who have kept in touch with the child before and after he or she was taken into care.

A care plan must be made for each case of family-oriented and individual child welfare, unless the matter under consideration requires only temporary counselling or guidance. This plan must be adjusted when necessary.

In the case of a child taken into care (section 16 of the 1983 Act) or a child placed in residential care as a form of assistance in open care (section 14 of the 1983 Act) the care plan must specify (a) the purpose and objectives of the placement; (b) what kind of special support will be organised for the child, for the persons in charge of the child’s care and upbringing and for the child’s parents; (c) how the child’s access to its parents and other persons close to the child will be organised; and (d) how after-care will be organised.

According to section 4 of the Child Welfare Decree, the care plan must be drawn up in cooperation with those involved.

According to section 4 of the Social Welfare Act, a social welfare board, with several members elected by the municipality, is responsible for providing social welfare in its area, and is charged with the responsibilities assigned to social welfare boards in other Acts.

According to section 12 of the Social Welfare Act, the decision-making authority of a municipal social welfare board can be delegated to officials subordinate to the board, with the exception of decisions involving compulsory welfare for an individual.

According to section 17(2) of the 1983 Act, a decision made by the social welfare board on taking a child into care or placing him in substitute care, must be submitted within thirty days to the county administrative court for approval if a child who has attained the age of 12 or the persons having custody of him or her oppose the measure or if the hearing required by section 17(1) of the Act could not be arranged.

According to section 36, decisions concerning taking into care or placement in substitute care can be appealed against in the county administrative court within thirty days of notification of the decision. During that time, such an appeal may also be lodged with the local social welfare board, which must forward it to the county administrative court together with its own statement within fourteen days. The submission and the appeal shall in this case be dealt with and decided at the same time.

According to section 37(1) of the 1983 Act, appeals against a decision on care orders, on placement in substitute care, on termination of care or on a matter concerning housing, as specified in section 13(1) of the Act, made by the county administrative court in pursuance of this Act, may be lodged with the Supreme Administrative Court.

According to section 37(2) of the 1983 Act, decisions other than those contemplated in subsection (1), relating to family-oriented and individual child welfare rendered by the county administrative court in pursuance of the 1983 Act, cannot be appealed against.

According to section 35(2) of the 1983 Act, a child who has attained the age of 12, his or her parents, the persons having custody of him or her or the person responsible for his or her care and upbringing or who was responsible immediately prior to the case in question, may appeal in cases concerning the taking of a child into care, placement in substitute care or termination of the care.

A person challenging a decision made by an official subordinate to a municipal social welfare board has the right, under the Administrative Procedure Act (hallintomenettelylaki, lag om förvaltningsförfarande 598/1982), to have the decision reviewed by a municipal social welfare board within fourteen days of being informed of the decision. The social welfare board’s decision can be appealed against in the county administrative court.

According to section 46 of the Social Welfare Act, a decision made by the social welfare board is subject to appeal to a county administrative court within thirty days of service of the decision. Certain decisions by the county administrative court can be appealed against in the Supreme Administrative Court.

When the decision of an authority can be appealed against, the authority in question must attach to its decision information about the appeal procedure.

According to section 47 of the Social Welfare Act, a decision made by a municipal social welfare board is enforceable notwithstanding any appeal if (a) the decision requires immediate implementation; or (b) for reasons due to the arrangement of social welfare, the enforcement of the decision cannot be delayed; and (c) the social welfare board has ordered the decision to be enforced at once.

When an appeal has been lodged, the appellate authority can stay enforcement of the decision or order that enforcement be suspended.

Section 38(1) of the Administrative Judicial Procedure Act (hallintolainkäyttölaki, förvaltningsprocesslag 586/1996), which entered into force on 1 December 1996, contains rules on the right to an oral hearing before administrative courts.

According to the Child Custody and Right of Access Act, a person under 18 years of age is, as a minor, legally incompetent. A child who has attained the age of 12 is entitled to be heard in child welfare cases as stipulated in section 15 of the Administrative Procedure Act; he or she is also entitled to request the support of the social services and other support mentioned in section 13.

Section 17(1) of the 1983 Act lists the parties to be heard in matters concerning taking a child into care, placing a child in substitute care and termination of care. According to this section, the following persons have the right to be heard in accordance with section 15 of the Administrative Procedure Act: (a) the person having custody of the child; (b) a biological parent who does not have custody of the child; (c) a person currently in charge of the child’s care and upbringing or who was in charge immediately prior to the case in question; and (d) a child who has attained the age of 12. They must also be notified of a decision concerning the taking of a child into care and termination of care following the procedure for special notification. The authorities also have an obligation to inform them, where appropriate, of the possibility of an appeal.

Section 15(1) of the Administrative Procedure Act lays down a general obligation to hear the parties. Before any decision is made, a party must be afforded an opportunity to reply to the claims put forward by others as well as to any evidence that may affect the decision.

The county administrative board (lääninhallitus, länsstyrelsen), in the capacity of a regional State authority, has general powers to supervise the activities of municipalities. Following a procedural appeal, the county administrative board can also investigate whether a local authority has acted in accordance with the law.

In addition, the Ministry of Social Affairs and Health supervises and directs, in its capacity as the highest authority in social welfare and health matters, the activities of municipalities and, when necessary, also the activities of the county administrative board in child welfare. Appeals concerning individual cases addressed to the Ministry of Social Affairs and Health are sent to the county administrative board, which decides on the matter at first instance.

The Parliamentary Ombudsman and the Chancellor of Justice (oikeuskansleri, justitiekansler) are empowered to supervise the legality of the measures taken by any authorities.


Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court)

Anatoly Kovler;Elisabeth Steiner;Erik Møse;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Peer Lorenzen

The applicant was born in 1956 and lives in Georgiyevsk.

On 17 September 2001 the applicant brought civil proceedings against the joint stock company “Nov” (акционерное общество “Новь”), subsequently known as the collective farm “Nov” (сельскохозяйственная артель “Новь”), seeking recovery of 100 tons of sunflower seeds under a supply agreement.

On 17 October 2001 the Georgiyevskiy Town Court granted the applicant’s claim. The defendant was absent from the hearing.

On 24 December 2001 the writ of execution was returned to the Georgiyevskiy Town Court as it had not been possible to enforce it.

On 13 March 2002, following a request by the defendant, the Georgiyevskiy Town Court quashed the judgment of 17 October 2001 and resumed the proceedings.

On 22 October 2002 the applicant modified her claims and asked the court to order the defendant to pay her 800,000 Russian roubles.

On 17 December 2002 the Georgiyevskiy Town Court granted the applicant’s claim. The judgment was not appealed against and became final.

The judgment could not be enforced because the defendant had insufficient funds.

On an unspecified date in June 2003 the applicant lodged a claim against the Ministry of Finance seeking compensation for damages incurred through the inappropriate administration of justice, notably the excessive length of proceedings in respect of her claims against the company. She argued that the courts had failed to observe the time-limits prescribed by the Russian Code of Civil Procedure, which had undermined the possibility of enforcement of the final judgment in her favour.

On 21 July 2003 the Basmannyj District Court of Moscow dismissed the applicant’s claim without consideration on the merits. Referring to Ruling no. 1-P, adopted by the Constitutional Court on 25 January 2001 (see paragraph 18 below), the District Court noted that current laws did not determine the grounds or procedure for adjudicating a claim for damages on account of failure by the courts to comply with statutory time-limits. In particular, the court noted as follows:

“According to Article 1 of the Code of Civil Procedure of the Russian Federation, the rules of civil procedure in federal courts of general jurisdiction are determined by the Russian Constitution, the Judicial System Act, the Code of Civil Procedure and other federal laws.

The law has not determined the territorial and subject-matter jurisdiction over civil claims for compensation for damage incurred in civil proceedings in cases where a dispute has not been heard on the merits as a consequence of unlawful acts (or failure to act) of a court (a judge), including breach of a reasonable-time guarantee.

Pursuant to Article 134 § 1 (1) of the Code of Civil Procedure of the Russian Federation, the judge shall dismiss a statement of claim if the claim is subject to examination not in civil proceedings but in another judicial procedure.”

On 10 March 2004 the Moscow City Court upheld the decision of 21 July 2003 on appeal, finding as follows:

“In dismissing the claim with reference to Ruling no. 1-P of 25 January 2001 of the Constitutional Court of the Russian Federation, the court came to the correct conclusion that its examination by a district court of general jurisdiction would only be possible if a federal law determined that the district court of general jurisdiction had territorial and subject-matter jurisdiction over such claims.

At the present time, however, neither the Code of Civil Procedure of the Russian Federation nor any other federal law ... determines the territorial and subject-matter jurisdiction over claims concerning compensation for damage caused by judicial acts not touching upon the merits of the case.”

Article 1064 of the Civil Code contains general provisions on liability for the infliction of damage. It establishes that damage inflicted on the person or property of an individual must be reimbursed in full by the person who inflicted the damage (Article 1064 § 1).

Article 1070 of the Civil Code determines liability for damage caused by the unlawful actions of law-enforcement authorities or courts. In particular, it establishes that the federal or regional treasury shall be liable for damage sustained by an individual in the framework of the administration of justice provided that the judge’s guilt has been established by a final criminal conviction (Article 1070 § 2).

By Ruling no. 1-P of 25 January 2001, the Constitutional Court found that Article 1070 § 2 of the Civil Code was compatible with the Constitution in so far as it provided for special conditions in respect of State liability for damage caused in the framework of the administration of justice. It clarified, nevertheless, that the term “administration of justice” did not cover judicial proceedings in their entirety, but only extended to judicial acts touching upon the merits of a case. Other judicial acts – mainly of a procedural nature – fell outside the scope of the notion “administration of justice”. State liability for damage caused by such procedural acts or failures to act, such as a breach of the “reasonable length” requirement of court proceedings, could arise even in the absence of a final criminal conviction of a judge if the fault of the judge had been established in civil proceedings. The Constitutional Court emphasised, moreover, that the constitutional right to compensation by the State for damage should not be tied in with the personal fault of a judge. An individual should be able to obtain compensation for any damage incurred through a violation by a court of his or her right to a fair trial within the meaning of Article 6 of the Convention. The Constitutional Court held that Parliament should legislate on the grounds and procedure for compensation by the State for damage caused by the unlawful acts or failure to act of a court or judge and determine territorial and subject-matter jurisdiction over such claims.

Article 134 § 1 (1) of the Russian Code of Civil Procedure provides that a civil claim must be dismissed by a judge, in particular, if it is amenable to examination not in civil proceedings but in another judicial procedure.


No violation of Art. 6-1;No violation of Art. 3;No violation of Art. 8;No violation of Art. 12

Mr. Buchholz was born in 1918 and lives in Hamburg. From February 1949 onwards he worked for the dry-cleaning firm of J. H. Dependorf KG; he was mainly employed as a driver until the end of 1963 and thereafter as, in particular, controller of branch establishments. On 28 June 1974, he was given notice that he was dismissed with effect from 31 December of the same year as a result of rationalisation measures.

He took proceedings before the appropriate courts contesting the lawfulness of this notice; in his submission, those courts did not determine his case within "a reasonable time" as required by Article 6 par. 1 (art. 6-1) of the Convention.

On 10 July 1974, the applicant commenced an action before the Hamburg Labour Court claiming that his dismissal was "socially unjustified" ("sozial ungerechtfertigt") within the meaning of section 1 of the Unfair Dismissal Act (Kündigungsschutzgesetz). The other party ("the defendants") served a defence on 25 July, one day before the expiry of the time-limit granted for this purpose by the Labour Court.

At the first hearing on 16 August, Mr. Buchholz’s lawyer submitted new written pleadings. The Labour Court thereupon allowed an application by the defendants for time to reply and adjourned the case until 4 October.

In their written reply of 22 August, the defendants, as requested by the Labour Court, gave a detailed account of the reasons for the contested dismissal; they also described the economic situation of the firm and explained the rationalisation measures taken.

The applicant’s lawyer appended to his counter-reply of 19 September a note written to him by his client. This note contained the charge that the managers of the Dependorf firm had "negligently squandered the millions (business and private assets) properly earned by Robert Dependorf" but had "personally secured to themselves such a safe position that these people are no longer interested in whether or not the Dependorf firm gets even deeper into the red".

These accusations prompted the defendants on 30 September to send the applicant two further notices of dismissal, an extraordinary notice (ausserordentliche Kündigung) effective forthwith and, as an alternative or precautionary (vorsorglich) measure, an ordinary notice (ordentliche Kündigung) with effect from 31 March 1975. The extraordinary notice was based on Article 626 of the Civil Code (Bürgerliches Gesetzbuch) which requires a "serious reason" for a dismissal of this kind and the giving of notice within two weeks from the moment when the employers had knowledge of the facts judged by them to constitute such a reason.

On 2 October, Mr. Buchholz’s lawyer filed two further sets of written submissions dated 1 and 2 October respectively; appended to the former was a copy of the defendant’s letter of 30 September; the latter extended the plaintiff’s action to cover the two dismissal notices of 30 September.

At a hearing on 4 October 1974, the Labour Court adjourned the proceedings until 25 October as the defendants’ lawyer had only received the applicant’s latest written pleadings at that hearing.

On 14 October, the applicant’s lawyer submitted another memorandum.

At the adjourned sitting on 25 October, the Labour Court, acting in accordance with the applicable legislation, proposed a friendly settlement, but the proposal was not accepted.

The Labour Court delivered judgment on 8 January 1975 immediately after hearing the final submissions of the parties. It held that neither the notice of 28 June 1974 nor the extraordinary notice of 30 September 1974 had terminated the applicant’s contract, since the former was "socially unjustified" within the meaning of section 1 of the Unfair Dismissal Act and the latter was invalid for lack of a "serious reason" as required by Article 626 of the Civil Code. The Court also rejected an alternative request by the defendants for discharge (Auflösungsantrag) of the contract of employment in pursuance of section 7 of the Unfair Dismissal Act. It ordered the defendants to pay Mr. Buchholz DM 5,700 arrears of wages but dismissed the claim for future salary.

The judgment was notified in writing to the parties on 25 February 1975.

The defendants appealed to the Hamburg Labour Court of Appeal on 13 March 1975. In their submission, the accusations made by Mr. Buchholz constituted a "serious reason" warranting the extraordinary notice of 30 September 1974; the two ordinary notices of 28 June and 30 September 1974 were likewise valid, the former being "socially justified" for pressing reasons connected with the running of the business. They called on the Court to overrule the judgment appealed from and to dismiss the plaintiff’s action or, in the alternative, to discharge the contract of employment existing between the two parties.

The applicant in turn lodged a cross-appeal (Anschlussberufung) on 25 March, seeking payment of arrears of wages for the first three months of 1975.

The parties then filed written pleadings dated 2 April and 15 May 1975 (the defendants) and 22 April (Mr. Buchholz). The applicant maintained his accusations against the managers of the firm and asked the Court of Appeal to call for an expert’s opinion in order to corroborate the allegations made.

In the course of this written procedure both the applicant and the defendants had requested the Court of Appeal not to hold sittings during certain periods, namely from 25 May to 5 June for the applicant and from 11 April to 2 May and from 6 to 11 June for the defendants.

Taking due note of this, the Court of Appeal on 16 May 1975 set the case down for hearing on 22 July. On that date, the Court examined, amongst other matters, the exact circumstances surrounding the tendering in evidence of the applicant’s accusations which had been appended to his lawyer’s written pleading of 19 September 1974 (see paragraph 15 above). When questioned whether he had intended use to be made of these accusations in the lawsuit, he stated that he had relied on the judgment of his lawyer. The Court also raised the possibility of employing Mr. Buchholz in some other capacity; it directed the defendants to submit within one month a chart setting out the firm’s commercial staff structure, indicating for each post whether it was suitable for the applicant and, if not, the reason why.

The applicant was given one month to reply.

The defendants filed the chart, with accompanying explanations, on 31 July; then, on 6 August, they replied to a written pleading from Mr. Buchholz which, though presented on 16 July, had been communicated to them after the hearing of 22 July.

On 20 August 1975, the applicant put forward a proposal for a friendly settlement, but this was rejected by the defendants on 19 September. By letter of 3 October, Mr. Buchholz’s lawyer filed a memorandum, dated 28 September, containing comments by his client and asked the Court to set the case down for an early hearing, thereby renewing a request he had already made on 18 September, one day before the defendants had refused the offer of friendly settlement. He stated, amongst other things, that "the disproportionately long state of suspense [had] become physically and psychologically unbearable" for Mr. Buchholz.

On 9 October, the Court of Appeal decided to hold a hearing on 19 March 1976 and transmitted to the defendants the above mentioned written pleadings of 3 October.

On 12 November 1975, the applicant’s lawyer addressed to the Parliament (Bürgerschaft) of the Free and Hanseatic City of Hamburg a petition seeking measures to expedite proceedings before the labour courts.

Early in 1976, as an apparent sequel to this petition and following an increase in the number of judicial posts (see paragraph 39 below), the Court of Appeal was able to establish a Sixth Chamber. Almost 50 per cent of the cases pending before the Third Chamber were referred to the new Chamber, although the former continued to deal with the Buchholz action.

The Parliament advised the applicant in reply on 5 May 1976 that the authorities had immediately taken the necessary steps to ease the workload of the labour courts.

The legal and factual questions to be decided were debated by the two parties at the hearing held on 19 March 1976. At the close of the sitting, the Court of Appeal made an order setting out the various points in issue and their possible implications as seen by the Court; it then proposed a settlement whereby the contract of employment would be considered as having terminated on 31 December 1974 and the defendants would pay the applicant a lump sum of DM 34,200.

The Court called on the parties to state their views by 30 April.

By memorandum of 7 April, the defendants refused the settlement proposal; they referred to the "undisputed" fact that the two notices of 30 September 1974 had been served on the applicant on the same day.

For his part, Mr. Buchholz’s lawyer, in a written statement of 8 April in which he paid tribute to the Court of Appeal for its "thorough and prudent examination of the case", declined to accept the suggested settlement; he specified that he could only agree to such a solution if the contract were regarded as terminated on 31 December 1975.

In addition, on 28 April 1976 he filed a brief reply to the above-mentioned memorandum of 7 April. He contested the defendants’ affirmations "insofar as they deviate[d] from the explanations" given by his client, but he did not however specifically deal with the matter of the date of receipt of the two notices of 30 September 1974. He added that he would be absent from 30 May to 18 June and requested the Court of Appeal to fix a hearing in May.

On 3 May, the Court of Appeal directed that the hearings should resume on 27 August and so advised the parties on 1 June.

At the hearing on 27 August 1976, Mr. Buchholz denied that he had actually received the two notices of 30 September on that day and asked the Court to question on his wife on this point, which was material for the purposes of Article 626 of the Civil Code (see paragraph 15 above). The Court acceded to this request. Mrs. Buchholz, who was present in the court-room, confirmed the statements of her husband; she asserted that the notices had been served between 5 and 7 October 1974.

The defendants contested this testimony and asked for the counter-evidence of four witnesses to be heard. The applicant objected to such a move on the ground that it would tend to protract the proceedings. The Court nevertheless decided that Mr. Buchholz, as well as the chief executive of the Dependorf firm and the four witnesses nominated by the defendants, should be heard on 11 January 1977. At the same time it invited the applicant, who had applied for free legal aid in the appeal proceedings, to supply the necessary certificate for that purpose.

The certificate was submitted under cover of a letter of 28 August from Mr. Buchholz’s lawyer. Consequently, on 29 September the Court granted free legal aid for the applicant’s defence against the main appeal; it reserved its decision as regards his cross-appeal (see paragraph 31 below).

Earlier, on 21 September 1976, the applicant had challenged the above-mentioned decision of 27 August before the Federal Constitutional Court. Complaining of the duration of the litigation and relying on Articles 2, 3, 12 and 20 of the Basic Law as well as Article 6 (art. 6) of the Convention, he had sought from the Constitutional Court an order requiring the Court of Appeal to bring its consideration of the matter to an immediate close.

The case-file was sent to the Federal Constitutional Court which, sitting as a panel of three judges (section 93 (a) of the Federal Constitutional Court Act, Bundesverfassungsgerichtsgesetz), gave judgment on 2 November. The Court refused leave for the constitutional application to proceed: even supposing the application to be admissible, it did not offer sufficient prospects of success since there was nothing in the evidence to show that the Court of Appeal had protracted the proceedings; having regard to the extreme complexity of the facts of the case, the length of the lawsuit had been caused primarily by the applicant who had continuously supplemented his submissions and called for the taking of further evidence.

The presiding judge of the Third Chamber of the Labour Court of Appeal, which was dealing with the applicant’s case, retired on 19 November.

On 11 January 1977, the Court of Appeal heard four witnesses in connection with the date of receipt of the dismissal notices. It reserved until 28 January its decision whether, despite the objections of Mr. Buchholz’s lawyer, it should hear evidence from an additional witness nominated by the defendants and from Mr. Lentfer, the chief executive of the Dependorf firm.

On 28 January, the Court of Appeal granted the applicant free legal aid for his cross-appeal (see paragraph 27 above) and directed that Mr. Lentfer be called to give evidence on 22 March.

By letter of 31 January, the defendants’ lawyer, pleading a prior commitment, asked for adjournment of the hearing of Mr. Lentfer; he further specified that both he and Mr. Lentfer would be on leave from 15 April until 4 May. The Court of Appeal granted this request on 2 February and postponed the hearing until 6 May.

The applicant wrote on 5 February to the Secretary to the Commission - his petition to the Commission having been lodged on 18 December 1976 - to complain of this decision, but according to the Government there is no trace in the record of the case of his having entered any such objection before the Court of Appeal.

On 6 May, the representatives of both parties declared that the two disputed dismissal notices had indeed been received by Mr. Buchholz on 30 September 1974.

On 13 May, the Court of Appeal ordered that an expert opinion should be obtained on the question whether or not the applicant’s accusations against the managers of the Dependorf firm were justified (see paragraph 15 above). The Hamburg Chamber of Commerce, on being so requested, nominated an expert on 14 June; after hearing the parties, the Court appointed the expert on 30 June.

The expert’s report was filed on 2 December 1977; the Court communicated it to the applicant and the defendants for comment by 5 January 1978.

The last hearing was held on 3 February. The parties made their final submissions, following which the Labour Court of Appeal delivered its judgment. It allowed the defendants’ appeal and dismissed the applicant’s cross-appeal, awarding the costs of the proceedings against him.

The Court of Appeal held that the extraordinary notice of 30 September 1974 was valid for the following reasons. The charges made by the applicant constituted a serious reason for dismissal within the meaning of paragraph 1 of Article 626 of the Civil Code and the dismissal notice had been served within the period of two weeks laid down by paragraph 2 of that Article. The thorough and convincing explanations furnished by the expert made it clear that Mr. Buchholz’s accusations were without foundation (haltlos): apart from being extremely defamatory, they were inappropriate and quite unnecessary for his cause of action contesting the ordinary notice of 28 June 1974 (see paragraph 15 above).

The judgment was notified in writing to the parties on 5 April.

With a view to bringing a petition for a review on a point of law (Revision), Mr. Buchholz applied on 13 April to the Federal Labour Court for free legal aid; his application was granted on 12 September.

On 20 September, he asked the Federal Court for leave to petition notwithstanding expiry of the legal time-limit; the Court gave leave on 10 October.

The petition which had been filed earlier on 22 September, was transmitted to the defendants who replied in writing on 29 December.

On 26 April 1979, the Federal Court, after hearing the parties, proposed a settlement whereby the contract of employment would be considered as having terminated on 31 December 1974 and the defendants would pay the applicant a lump sum of DM 24,000 in addition to the DM 5,700 already paid as arrears of wages in compliance with the Labour Court’s judgment.

The proposal was rejected by the defendants; by judgment of the same day, the Federal Court dismissed the petition for review as unfounded.

On 10 May 1979, Mr. Buchholz challenged this decision before the Federal Constitutional Court alleging violation of several basic rights. He complained of the length of the proceedings before the various labour courts, citing this factor as the cause of the contested decision. He further criticised the Federal Labour Court for having terminated a lawsuit "which in normal circumstances should not have been terminated yet"; in view of his application to the Commission, so he contended, the Federal Labour Court had "clearly not wished to make the breach of the Convention more evident by continuing the proceedings". In addition, the applicant claimed that the judgment being challenged was unsustainable as far as its reasoning was concerned (sachlich unhaltbar) and constituted an unacceptable domestic sanction intended to punish him for having taken his case to the Commission.

On 19 July, the Constitutional Court refused leave for the constitutional application to proceed on the ground that it was inadmissible. The applicant had not, it was stated, identified with sufficient clarity any possible violation of his basic rights. In particular, his complaint regarding the length of the proceedings did not warrant a finding that the outcome of the action was incompatible with any of his basic rights; this was likewise true of his submission that the reasoning of the judgment being challenged did not bear examination.

As in 1976 (see paragraph 28 above), the Court had sat in judgment as a panel of three judges.

For a year after his dismissal, Mr. Buchholz was paid weekly unemployment benefits (Arbeitslosengeld) under the Promotion of Employment Act (Arbeitsförderungsgesetz), that is to say, DM 202.20 from 9 October to 31 December 1974, DM 228 from 1 January to 30 September 1975 and DM 250.80 until 7 October 1975. The Hamburg Employment Office (Arbeitsamt) refused, on 23 December 1975, to grant him unemployment welfare assistance (Arbeitslosenhilfe) thereafter on account of his wife’s earnings. Since 1 August 1978, the applicant has been in receipt of a social security retirement pension (Sozialversicherungsrente), the amount of which – originally DM 1,462 per month - has been periodically adjusted.

According to the Government, from October 1974 onwards the Hamburg Employment Office endeavoured in vain to find the applicant some other employment, even offering financial help to potential employers.

As the result of an economic recession in the Federal Republic of Germany, the labour courts of appeal experienced a significant increase in their workload between 1974 and 1976. According to the statistics supplied by the Government at the request of the Court, the incidence of appeals from labour court judgments rose, as compared with the previous year, by 23.1 per cent in 1974, by 20.8 per cent in 1975 and by 9.7 per cent in 1976. In order to cope with this state of affairs, the relevant authorities increased the number of judicial posts by 9.6 per cent in 1974, by 12.5 per cent in 1975 and by 11.1 per cent in 1976. There were 17.3 per cent more cases dealt with in 1974, 27.5 per cent in 1975 and 13.4 per cent in 1976.

As regards the Hamburg Court of Appeal in particular, 689 appeals were entered in 1974, 758 in 1975, 786 in 1976 and 756 in 1977; 716 appeals were decided in 1974, 700 in 1975, 798 in 1976 and 788 in 1977. The average length of proceedings progressed from 2.88 months in 1974 to 3.20 months in 1975, but then fell to 2.98 months in 1976, 2.79 months in 1977 and 2.53 months in 1978. In this respect, the Hamburg Court of Appeal was more favoured than the labour courts of appeal of the other Länder where, nevertheless, a downward trend was also registered. Examination of the 255 cases decided in 1975 and 1976 by the Third Chamber, which dealt with the Buchholz appeal, showed, according to the Government, that 163 cases were disposed of after one hearing, 59 cases after two hearings, 23 cases after three hearings and 10 cases after four to six hearings.

Faced with the backlog of labour court business in the 1970’s, the Government tabled in the legislative assemblies in 1978 a Bill designed, amongst other things, to expedite proceedings before the labour courts. The resultant Act entered into force on 1 July 1979.