No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy)

On 25 June 2004 the applicant was arrested on suspicion of theft of documents and death threat and later charged with several counts of murder and robbery. While in police custody, he was allegedly subjected to beatings.

On 9 July 2004 the applicant was placed in remand prison IZ-27/1 in Khabarovsk.

After an initial period of detention in ordinary cells of the prison, on 18 July 2005 the applicant was transferred to a special section designed for detention of persons sentenced to life imprisonment. The applicant stayed in several cells of that section until his departure to a correctional colony on 19 December 2007.

The parties disagreed on many aspects of the material conditions of the applicant’s detention during that period.

In the Government’s submission, the applicant was accommodated in four cells:

cell 182, from 18 July 2005 to 21 September 2006;

cell 176, from 21 September 2006 to 10 August 2007;

cell 178, from 10 to 22 August 2007;

cell 181, from 22 August to 19 December 2007.

All cells measured 8.1 sq. m and had 2 sleeping places. The applicant stayed in them either alone or with another detainee, but the design capacity was never exceeded.

Each cell had a window covered by metal bars which allowed sufficient access to natural light and fresh air. Two light bulbs, one for daytime and another for night-time lighting were installed in the cells. Running water was available at all times. Toilet pans were located at between 1 and 1.3 m from beds and dining tables and separated from the rest of the cells by a 1.5 meter-high brick partition. The applicant was allowed daily hour-long outdoor exercise. He could take a shower and wash his clothing once a week.

In support of their position, the Government produced a number of certificates and statements issued by the director of remand prison IZ-27/1 on 7 July 2010 showing the numbers of the cells where the applicant stayed, the frequency of outdoor exercise and visits to the shower, as well as descriptions of the cells, their equipment and sanitary installations. The certificates were accompanied by copies of the applicant’s cell record, the prison population register and the schedules of outdoor exercise and sanitary measures covering the entire period of the applicant’s detention.

Further to the Court’s request, the Government submitted a floor plan of the facility, containing indications of the cell surface.

The applicant disputed the Government’s submissions concerning the cells. He provided the following information in that regard:

cell 182, held from 18 to 30 July 2005;

cell 183, held from 30 July 2005 to 3 October 2006;

cell 173, held from 3 October 2006 to 12 July 2007;

cell 176, held from 12 to 30 July 2007;

cell 178, held from 30 July to 28 August 2007;

cell 181, held from 28 August to 8 September 2007.

According to the applicant, the cells presented the following characteristics:

cell 182 measured 4.5 sq. m. The applicant stayed there alone;

cell 183 measured 5 sq. m and housed up to 3 inmates;

cell 173 measured 3 sq. m and accommodated 2 persons;

cell 176 measured 3 sq. m. The applicant stayed there alone;

cell 178 measured 3 sq. m and accommodated 2 inmates;

cell 181 measured 4 sq. m and hosted 2 detainees.

The applicant did not provide any information about the number of sleeping places in the cells.

All cells were located in the semi-basement of the remand prison. They were poorly lit and ventilated. Metal shutters on the windows blocked access to natural light and fresh air. Heating did not function. Drinking water was available only on request from the prison guards. The toilet pan was not separated from the living area. The courtyard for outdoor exercise was very small.

To corroborate his claims, the applicant submitted statements by two detainees from the adjacent cells who also stated that the applicant had been ill-treated by prison guards.

On 25 July 2006 the Supreme Court of Russia found the applicant guilty as charged and sentenced him to life imprisonment.

On 30 May 2006 the applicant’s mother complained to the regional prison authority about the conditions of his detention. In response to the complaint, on 27 June 2006 the authority admitted that the cell where the applicant was held had to be repaired and directed the management of the prison to transfer the applicant to another cell.

On 2 August 2006 the applicant complained to the regional prosecutor about the conditions of his detention. He claimed, in particular, that there were metal shutters on windows, that the toilet pan was not separated from the rest of the cell and that the heating was too weak. Following an inquiry into the applicant’s allegations, on 19 August 2006 the district prosecutor concluded that “the [remand prison] cells [were being] renovated and properly maintained” and refused to open a criminal investigation into the matter. The applicant complained to a court.

On 18 September 2006 the Kirovskiy District Court of Khabarovsk dismissed the applicant’s complaint against the prosecutor’s decision of 19 August 2006. The applicant appealed against the decision of 18 September 2006, but provided no further information about the outcome of these proceedings.

On 9 October 2006 the applicant’s mother lodged another complaint with the regional prison authority, claiming, in particular, that the conditions of his detention had not improved. On 13 November 2006 the authority replied that the applicant’s cell had been recently renovated and satisfied the legal standards and that the applicant had no complaints in that regard.


Violation of Article 6+P1-1-1 - Right to a fair trial (Article 6 - Enforcement proceedings;Article 6-1 - Access to court) (Article 1 of Protocol No. 1 - Protection of property;Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions)

The list of applicants and the relevant details of the applications are set out in the appended table.

The applicants complained of the non-enforcement of domestic decisions and of the lack of any effective remedy in domestic law.


George Nicolaou;Guido Raimondi;Krzysztof Wojtyczek;Nona Tsotsoria;Päivi Hirvelä;Yonko Grozev

The applicant, Mr Asen Todorov Sabev, is a Bulgarian national who was born in 1977 and is currently serving a life sentence in Sofia Prison. He was represented before the Court by Ms P. Todorova from Pernik.

In 2001 the applicant was sentenced to whole life imprisonment for robbery and murder. His sentence became final on 17 December 2003, when it was upheld by the Supreme Court of Cassation. The applicant has been serving his sentence in Sofia Prison.

On 3 September 2014 the Vice-President of Bulgaria, exercising the constitutional prerogative to grant clemency, commuted the applicant’s whole life sentence to a “simple” life sentence.

The law relating to whole life sentences, acts of clemency and adjustment of a sentence, and their applicability to that type of sentence has been set out in detail in Harakchiev and Tolumov v. Bulgaria (nos. 15018/11 and 61199/12, §§ 51-107, ECHR 2014 (extracts)).


Violation of Article 3 - Prohibition of torture (Article 3 - Expulsion) (Kazakhstan);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);Violation of Article 5 - Right to liberty and security (Article 5-2 - Information on reasons for arrest);Violation of Article 5+5-5 - Right to liberty and security (Article 5-4 - Review of lawfulness of detention) (Article 5 - Right to liberty and security;Article 5-5 - Compensation);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Prohibition of torture;Degrading treatment)

Jon Fridrik Kjølbro;Ledi Bianku;Paul Lemmens;Robert Spano;Stéphanie Mourou-Vikström

The applicant was born in 1989 and is detained in Atyrau, Kazakhstan.

According to the applicant’s submissions, he lived in Atyrau, Kazakhstan until 2010. Between January and November 2010 the applicant was constantly harassed by the police, taken into police custody and ill-treated. In January 2010 he was asked to go to a police station as a friend of his had informed the police that the applicant had witnessed a fight between him and another friend of the applicant. On that day a statement was taken from him by the police. The next day he was once again invited to the police station, where, this time, he was beaten by the police. Subsequently, he was also accused of forcing a girl to worship in the Muslim manner and of raping her. He was eventually released from police custody. The applicant considered that he had been subjected to ill-treatment because he was a practising Muslim who worshipped and who wore a beard. On 27 November 2010 the applicant left Kazakhstan and arrived in Turkey. He then went to Syria twice and also to Georgia. On 21 May 2011 the applicant re-entered Turkey on a tourist visa.

On 9 June 2011 with a view to requesting a residence permit in Turkey, the applicant went to the Istanbul police headquarters, where he was arrested. The Government submitted that (i) subsequent to his arrival in Turkey 21 May 2011, an entry ban was issued in respect of the applicant, as he was considered to constitute a threat to national security, and (ii) he was detained with a view to his deportation.

On the same day the applicant was transferred to the Kumkapı Foreigners’ Removal Centre.

On unspecified dates the applicant applied to the national authorities and to the United Nations High Commissioner for Refugees (UNHCR), asking to be recognised as a refugee.

On 15 June 2011 a police officer conducted an interview with the applicant in the context of his application to be granted asylum.

On 28 June 2011 the applicant was notified by the police that his asylum application had been rejected.

On 29 June 2011 the UNHCR issued an asylum-seeker certificate to the applicant.

On 5 July 2011 one of the applicant’s representatives, Mr A. Yılmaz, lodged an objection to the decision to reject the applicant’s asylum application with the police department responsible for foreigners, borders and asylum attached to the Istanbul police headquarters. The lawyer asked the authorities to review their decision and to conduct a second interview with the applicant.

On 11 July 2011 Mr A. Yılmaz lodged an application with the Istanbul Magistrates’ Court for his client’s release. The applicant’s lawyer also stressed that the applicant was being kept in poor detention conditions. He received no response to his application.

On 16 August 2011 the police conducted a second interview with the applicant, during which he claimed that he would be exposed to a real risk of death and duress at the hands of the police if deported to Kazakhstan. In his statement, the applicant claimed that he had already been ill-treated by the police in Kazakhstan and that the authorities had imprisoned religious people like him on false accusations.

On 22 and 25 August 2011 Mr A. Yılmaz lodged two further applications with the police for his client to be released. He submitted that the applicant was being sought for by the Kazakhstan authorities for political reasons and that he would be persecuted on the basis of his religious convictions and subjected to torture and ill-treatment if deported to his country. In support of his petition dated 22 August 2011, the applicant’s lawyer submitted a document showing that the applicant was being sought for by the public authorities in Atyrau on suspicion of having committed the offence of “hooliganism”, proscribed by Article 257 § 3 of the Kazakhstan Criminal Code, as in force at the material time. He also submitted a copy of a page of a newspaper published in Kazakhstan in April 2011 according to which an arrest warrant had been issued in respect of the applicant.

On 13 September 2011 the applicant was released from the Kumkapı Foreigners’ Removal Centre. The applicant was ordered to go and live in the province of Sakarya pending the determination of his asylum application.

On 29 September 2011 the applicant went to Sakarya, where he lived until 15 March 2012.

On 24 October 2011 the applicant was granted a residence permit, valid until 20 May 2012.

On 3 November 2011 the InterpolEuropol Department attached to the General Police Headquarters requested the Foreigners, Borders and Asylum Department (also attached to the General Police Headquarters) to provide information regarding the applicant, noting that he was sought for by the prosecuting authorities and the Interpol bureau of Kazakhstan as he was suspected of having committed an offence in that country. On 1 December 2011 the deputy head of the Foreigners, Borders and Asylum Department informed the InterpolEuropol Department that the applicant had requested asylum and was residing in Sakarya and that on 24 October 2011 a further entry ban had been issued in respect of him after the applicant had been prosecuted for “hooliganism”. The Foreigners, Borders and Asylum Department requested the InterpolEuropol department not to provide any information to the Kazakhstan authorities, in the interests of the safety of the applicant and his family members in Kazakhstan.

On 15 March 2012 the applicant was served with a document informing him that his asylum application had been rejected on 2 March 2012 and that he could not benefit from subsidiary protection either. The document informed him that he was banned from entering Turkish territory and that if he attempted to enter Turkish territory, he would be deported. On the same day the applicant was detained.

On 16 and 19 March 2012 Mr A. Yılmaz lodged two applications with the Ministry of the Interior requesting that his client be released. The lawyer noted that he had received a phone call from the applicant, who had stated that he would be deported to Kazakhstan, where he would be subjected to torture.

On 19 March 2012 the applicant was deported to Kazakhstan.

In a letter dated 27 May 2013, Mr Yılmaz submitted that the applicant had been transferred to the custody of Kazakhstan’s security forces upon his return to Kazakhstan and had then been remanded in custody in Atyrau Prison. The lawyer stated that he did not have information supported by any document as to whether the applicant had been subjected to ill-treatment in Kazakhstan.

On 22 March 2012 Mr A. Yılmaz lodged an application with the Ankara Administrative Court for the annulment of the decisions of the Ministry rejecting the applicant’s asylum application and to deport the applicant from Turkey. He requested a stay of execution of the decision to deport the applicant, pending the proceedings before the Ankara Administrative Court. In support of his petition, the applicant’s lawyer submitted a number of documents to the Ankara Administrative Court, including a document downloaded from the Atyrau police department website, according to which an arrest warrant had been issued in respect of the applicant. The document, which was also submitted to the Court, contained the applicant’s name, photograph and the charge brought against him (“hooliganism”, under Article 257 § 3 of the Kazakhstan Criminal Code). He also submitted the newspaper page (see paragraph 17 above), which he had already submitted to the police on 22 August 2011 and according to which an arrest warrant had been issued in respect of the applicant.

On 11 May 2012 the Ankara Administrative Court rejected the request for a stay of execution in respect of the applicant’s deportation.

On 13 February 2013 the Ankara Administrative Court dismissed the application lodged by the applicant on 22 March 2012. In its judgment, the administrative court noted that according to information obtained from the National Intelligence Organisation (Milli İstihbarat Teşkilatı), the applicant was involved in international terrorism and had carried out terrorist activities when he had been in Turkey. The Ankara Administrative Court further noted that the applicant’s asylum application had been rejected as the administrative authorities had found that there had not been any basis for the applicant’s fear of persecution and that he had not met the conditions for being considered a refugee. On the basis of the documents in the case file, the Administrative Court concluded that the administrative decision to reject the applicant’s asylum application and to deport the applicant from Turkey had been lawful.

Following an appeal by the applicant, on 27 April 2016 the Supreme Administrative Court upheld the judgment of 13 February 2013.

Between 9 June and 13 September 2011 the applicant was detained at the Kumkapı Foreigners’ Removal Centre. The applicant claimed that the centre had been overcrowded at the time of his detention. He had not been allowed exercise outdoor or any other type of social activity throughout his detention. The applicant further alleged that there had been hygiene problems at the centre and that the quantity of the food provided had also been poor.

The Government submitted that the Kumkapı Foreigners’ Removal Centre where the applicant had been held had a capacity of 300 persons and that a total of between 100 and 150 persons had been held during the period between 9 June and 13 September 2011. Detainees were accommodated on three floors: the first two floors were reserved for male detainees, and the third floor for females. There were four dormitory rooms on the first floor, measuring 50, 58, 76 and 84 sq. m. On the second floor there were five dormitories measuring 50, 58, 69, 76 and 84 sq. m. There was a total of 120 bunk beds in the ten rooms reserved for male detainees and all rooms received natural light. There were also five showers and six toilets per floor, as well as a cafeteria measuring 69 sq. m, where breakfast, lunch and dinner were served daily on each floor. The detainees had the right to outdoor exercise if the physical conditions and the number of staff available allowed. A doctor was present on the premises every week and the detainees also had access to medical care in cases of emergency. As for the hygiene in the facility, there were six cleaning staff working full time and cleaning products, such as soap, were provided on a regular basis.


Remainder inadmissible;No violation of Article 6+6-3-d - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3-d - Witnesses)

Jon Fridrik Kjølbro;Julia Laffranque;Paul Lemmens;Stéphanie Mourou-Vikström;Georges Ravarani

The applicant was born in 1987 and lives in Tallinn.

He was charged with causing serious health damage. According to the charges, at 4.30 a.m. on 22 April 2006, he, together with I.J., had repeatedly hit L. on the head outside a nightclub on Harju Street. L. had fallen to the ground and had then been kicked several times. He had sustained serious head injuries which had been life-threatening and caused him permanent health damage.

Criminal proceedings in respect of I.J. were discontinued after his death in a car accident on 25 February 2007.

The Harju County Court (“the County Court”) heard evidence from the applicant and nine witnesses and examined certain other evidence such as a written forensic expert opinion on L.’s injuries, a telephone activity report concerning the time and location of the applicant’s communications, identification reports based on photographs and a video-recording from a closed circuit television camera near the scene. It also examined I.J.’s statements given during the preliminary investigation.

The County Court found that the witness statements were incoherent and that some were contradictory. The witnesses had given different accounts of the events, regarding the number of persons who had been at the scene and attacked L., as well as the attackers’ actions during the scuffle and after L. had fallen to the ground. The court noted that according to I.J.’s statements given during the preliminary investigation, he had hit L. twice, L. had fallen to the ground, and the applicant had arrived afterwards. The court had no reason to doubt what I.J. had said. It also noted that it could not give less credit to the statements of S.G. – according to whom the fight had been between L. and I.J. – merely because he was a friend of the applicant.

The court rejected witness statements from K.A., K.S. and K.M. as evidence, as well as identification reports drawn up during the pre-trial investigation identifying the applicant as one of the (probable) attackers of the victim, as their statements in the identification reports did not match their statements before the court. It also pointed to the lack of credibility of some of the witness statements, such as K.M.’s statement, which said that she had recognised the applicant’s eye colour and the look in his eyes, but that she had not seen the colour of his jacket.

The County Court considered that there was only indirect evidence against the applicant and concluded that it could not be established beyond doubt that he had committed the offence he was charged with. By a judgment of 30 April 2007 the County Court acquitted him.

The prosecutor appealed to the Tallinn Court of Appeal (“the Court of Appeal”). He mainly challenged the County Court’s assessment of the evidence. He did not request a re-examination of the witnesses. He requested that the Court of Appeal quash the County Court judgment and adopt a new judgment convicting the applicant. A copy of the prosecutor’s appeal was sent to the applicant and his lawyer.

The Court of Appeal summoned the applicant, his counsel and the prosecutor to a hearing. However, the applicant informed the court in writing that he did not wish to take part and asked for the case to be examined in his absence.

At the Court of Appeal hearing, which took place on 4 September 2007, the applicant’s counsel confirmed that he was aware that the applicant did not wish to take part. The prosecutor did not object to examination of the case in the applicant’s absence. The Court of Appeal disclosed the records of the County Court hearings at the prosecutor’s request, to which the applicant’s counsel did not object. Subsequently, the court heard the parties’ arguments. No requests to summon witnesses were made and no witnesses were examined.

The Court of Appeal assessed the evidence differently, based on the material in the case file, and found that the applicant’s guilt was established. It considered that it was incorrect to describe the witness statements as contradictory; rather, the witnesses’ attention had been focused on different details and the scope and precision of the information contained in their statements varied. The court provided a comprehensive analysis of the evidence in its judgment, delivered on 18 September 2007, and explained in detail why, and to what extent, it assessed the statements given in the County Court differently from the lower court.

Notably, the Court of Appeal considered that the County Court had not been justified in rejecting K.A.’s, K.S.’s and K.M’s statements and identification reports as evidence. In respect of K.S., it noted that at the identification procedure she had recognised the applicant by his eyes and eyebrows. The fact that she could not describe his clothing did not discredit her evidence. The court found that it could not be required of a witness to note everything necessary for criminal proceedings. A person could only focus on a single detail rather than on the full picture. Nor was her evidence discredited by her failure to recognise the applicant at the court hearing, as at court hearings witnesses were in a particularly stressful situation. Similar considerations were applied to K.M., who, moreover, had recognised the applicant at the County Court hearing. The fact that K.M. and T.S. (another witness) – who had been together at the time of the events – had taken note of different aspects of the events did not render those statements unreliable; rather, it reflected the fact that the perception and memory of different people differed. Nor did the different expressions used by K.M. at the identification procedure and in court render her statements unreliable. Furthermore, the Court of Appeal found no radical differences between K.A.’s statements in the identification report and in court, and therefore considered that the rejection of his statements as evidence had been not justified either. In conclusion, the Court of Appeal considered that K.A.’s, K.S.’s and K.M.’s statements, as well as their identification reports, had to be taken into account and assessed together with the other evidence.

The Court of Appeal also disagreed with the County Court’s position concerning the reliability of S.G.’s statements. It pointed to the fact that his statements, according to which the applicant had arrived at the scene after L. had already fallen to the ground, did not match any of the other witness statements. It also noted that the applicant, S.G. and I.J. had been friends, whereas the other witnesses had had no connection with them. Considering a number of statements by independent witnesses, the court found that I.J. had not been credible in assuming full responsibility and noted that there was no way of finding out why he had done so. It also noted that the applicant’s statements had been inconsistent. He had said during the preliminary investigation that he had seen I.J. hitting L., whereas in court he had said that he had been further away from the scene and denied having seen anything. The court also referred in that connection to the words heard by witnesses from a person whose appearance corresponded to that of the applicant: “Why then did he come to start a quarrel?” If the applicant had arrived at the scene after L. had been knocked down, he would have known nothing about the reasons and initial stages of the conflict and would have had no reason to express himself in such a way.

The Court of Appeal noted that since the applicant had acted jointly with another person, it was legally irrelevant which of them had struck L., causing him to fall, although it also referred to K.S.’s statements according to which the last blow had been given by the applicant. The court further analysed at length the subjective element of the offence and concluded that the applicant had acted with the indirect intent of causing serious health damage. Both the intellectual and volitional aspects of intent required under the pertinent case-law had been present in the applicant’s behaviour.

The Court of Appeal convicted the applicant as charged and sentenced him to five years’ imprisonment, of which he immediately had to serve two months, the remainder of the sentence being suspended. In sentencing, the court had regard to the fact that the applicant had no previous convictions and that he was a young person in his formative years. A short immediate prison sentence gave him a serious warning for the future.

The applicant appealed to the Supreme Court. He challenged the Court of Appeal’s assessment of the evidence and argued that it had not convincingly substantiated its different conclusion from that of the County Court. He pointed out that the Court of Appeal had not directly verified the evidence; he referred in that respect to the conduct of the witnesses, which was of paramount importance in assessing their credibility but which was not reflected in the record of the court hearing. In particular, he referred to K.M.’s hesitant behaviour at the hearing. He considered that the Court of Appeal had assessed the evidence in a selective and arbitrary manner and had given the benefit of the doubt to the prosecution.

On 14 November 2007 the Supreme Court decided not to examine the applicant’s appeal.


Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Reasonable time);Violation of Article 13+6-1 - Right to an effective remedy (Article 13 - Effective remedy) (Article 6 - Right to a fair trial;Criminal proceedings;Article 6-1 - Reasonable time)

The relevant details of the application are set out in the appended table.

The applicant complained of the excessive length of criminal proceedings and of the lack of any effective remedy in domestic law.


Violation of Article 4 of Protocol No. 7 - Right not to be tried or punished twice-{general} (Article 4 of Protocol No. 7 - Right not to be tried or punished twice;Criminal offence);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Alena Poláčková;Branko Lubarda;George Nicolaou;Helen Keller;Helena Jäderblom;Luis López Guerra;Pere Pastor Vilanova

The applicant was born in 1969 and lives in Leskovac.

On 17 October 2006 the Leskovac police informed the local minor-offence judge and the public prosecutor’s office about a violent incident between the applicant and a certain R.C. that had occurred on 12 October 2006 in a neighbourhood of Leskovac.

By a decision of 6 November 2007 the misdemeanour court judge in Leskovac (sudija Opštinskog organa za prekršaje u Leskovcu) found that at about 5.30 p.m. on 12 October 2006 in Leskovac R.C. had verbally insulted the applicant’s children, and the applicant had then punched him several times on the head and injured him. The judge concluded that these actions had been in breach of public order and peace and had thus been contrary to Article 6(3) of the Public Order Act 1992 (see paragraph 21 below under Relevant domestic law and practice). The relevant part of the decision reads:

“Defendant[s] R.C. ... and Momčilo Milenković are guilty in that at about 5.30 p.m. on 12 October 2006, in Subotička street in Leskovac, [the former first swore and insulted the applicant’s children], while the latter punched R.C. several times on the head and injured him ...”

Each of them was ordered to pay a fine in the amount of 4,000 Serbian dinars (RSD) plus RSD 700 for costs (at that time equivalent to approximately 60 euros (EUR) in total), which in the event of non-compliance would be converted into a prison term of eight days.

After an investigation had been conducted, on 4 April 2007 the Leskovac Public Prosecutor’s Office (“the LPPO”) charged the applicant with the criminal offence of inflicting grievous bodily harm on R.C. in connection with the above incident, contrary to Article 121 § 2 of the Criminal Code 1998. The LPPO, as well as the applicant and his family in the capacity of private prosecutors, lodged separate indictments against R.C. for several offences. All the indictments were joined in the same proceedings before the Leskovac Municipal Court.

In a judgment of 13 April 2011 the Leskovac Municipal Court found the applicant guilty as charged and sentenced him to three months’ imprisonment. R.C. was found guilty and fined for insulting the applicant’s family and causing minor bodily injuries to the applicant’s mother. The court ordered the applicant to pay RSD 14,739 in court costs, while each party was to cover its own costs and expenses.

“Defendant Milenković Momčilo ... is guilty in that

at about 4.00 and 4.30 p.m on 12 October 2006 in Subotička Street ... he punched [R.C.] on the left side of the face and, after knocking R.C. down, he continued punching him in the head, thereby causing him a number of grievous bodily injuries dangerous for life, such as: bruising of both eyelids (black eye), bruising of the left cornea, and nose abrasions ...”

The applicant appealed, arguing, inter alia, that he had already been punished in respect of the same incident by the Leskovac misdemeanour judge, with the result that the principle of ne bis in idem had been violated (see paragraph 18 below).

On 20 March 2012 the Niš Appeals Court upheld the judgment in respect of the applicant and dismissed the charges against R.C. as statute-barred. As regards the principle of ne bis in idem, the court held that the applicant had been found guilty of a misdemeanour against public order and peace in the misdemeanour proceedings, whereas he had been convicted of the criminal offence of grievous bodily harm in the criminal proceedings. According to the court, the descriptions of the acts sanctioned therefore clearly differed.

On 19 September 2012, the Leskovac Basic Court converted the prison sentence to house arrest without electronic monitoring.

On 29 November 2012 the Leskovac Basic Court amnestied the applicant at his request, finding that the conditions for a statutory amnesty were applicable (see paragraph 22 below).

In a subsequent constitutional appeal lodged on 25 May 2012 the applicant reiterated that he had been tried and punished twice for the same offence, in breach of Article 34 § 4 of the Constitution (see paragraph 13 below).

On 20 May 2013 the Constitutional Court, referring to the reasoning of the Niš Appeals Court as “fully acceptable from the constitutional point of view” (see paragraph 12 above), dismissed the applicant’s appeal as ill-founded. The decision of the Constitutional Court was served on the applicant’s representative on 29 May 2013.


Alena Poláčková;Dmitry Dedov;Georgios A. Serghides;Helena Jäderblom;Pere Pastor Vilanova

The applicant, Mr Peter Dominka, is a Slovak national who was born in 1988. At the time he lodged his application he was serving a sentence in Leopoldov Prison. He was represented before the Court by Mr P. Gračík, a lawyer practising in Nitra.

The Government of the Slovak Republic (“the Government”) were represented by their Agent, Ms M. Pirošíková.

The facts of the case, as submitted by the parties, may be summarised as follows.

On the evening of 21 February 2009, while walking home together from the centre of the city of Nitra, two individuals, A and B, were assaulted by C and another person. The assailants pepper-sprayed A and B and unsuccessfully attempted to rob them.

On 12 June 2009 C was taken to an investigator for questioning. After he had been charged, the investigator questioned him again on 13 June 2009 while a remand judge examined him on 15 June 2009.

In the questionings of 13 and 15 June 2009 C was assisted by a lawyer. He confessed in all three of the questionings that he himself had attempted to rob B while the applicant had allegedly assaulted A.

C stated on the record each time he was questioned that he had not been subjected to any form of physical or psychological pressure by the authorities. The records of the questionings contain no mention of the influence of any drugs or any discussion on that matter. However, neither the applicant nor anybody on his behalf was present.

Following C’s allegations the police searched for the applicant on four occasions between 12 and 17 June 2009 but were unable to find him.

In a further questioning on 25 June 2009, C changed his account of events and denied any involvement in the incident by him or the applicant. He submitted that during his arrest on 12 June 2009 police officers had presented him with an account of the incident of 21 February 2009 that had stated that he and the applicant had been involved and that they had made his release dependant on his acceptance of that version of events. As he had wished to go home, he had simply responded by agreeing to it. The questioning of 25 June 2009 took place in the presence of C’s lawyer and a lawyer for the applicant, who had been charged in connection with the assault in the meantime.

In response to these allegations, on 26 June 2009 another investigator questioned two arresting officers and the investigator who had had contact with C on 12 and 13 June 2009. C’s lawyer was present, although the applicant’s was not, despite having been duly summoned. The arresting officers and the investigator denied putting any physical or psychological pressure on C, leading him in any other way to present any particular version of the events, or witnessing the use of any such pressure or influence.

Meanwhile, on 12 June 2009, the applicant himself had been charged with robbery in connection with the incident of 21 February 2009 and with another, unrelated offence. However, the charge sheet was served on him only on 22 June 2009 when he was arrested during a road traffic control.

On 30 June 2009 a face-to-face confrontation was carried out between C and a certain D, who stated that C had previously confessed to him that he had committed the attempted robbery of 21 February 2009 together with the applicant. C’s defence counsel was present at the confrontation while neither the applicant nor his counsel were, although the latter had been properly requested to attend.

On 25 August 2009 the applicant was indicted to stand trial on the charges along with C, who faced a charge of robbery in the same proceedings.

On 11 May 2010 the District Court found the applicant and C guilty and imposed prison sentences on them. The applicant was sentenced to ten years and four months’ imprisonment.

The court observed that the applicant had at all times denied any involvement in the robbery, while C had denied his involvement from 25 June 2009 onwards.

As for C, in particular, the court noted that he had maintained his allegation of police coercion into making his initial confession. In addition, he had stated that he had been intoxicated while making the confession and that he had confirmed the confession later as he had been concerned about changing his original statement. However, having heard the officers involved in C’s arrest, the court found that the allegation of coercion had not been confirmed. It did not find C’s changed version credible as his participation in the robbery had been proven by his statements of 12, 13 and 15 June 2009 and by B and D.

As regards the applicant, the District Court noted that neither A nor B had identified him. However, he had been incriminated by the early statements of C and by D, as mentioned above.

The applicant challenged the judgment of 11 May 2010 by way of an appeal to the Nitra Regional Court. He argued that his conviction had been based on C’s initial statements, that those statements had been unlawful as evidence and that his conviction had accordingly been arbitrary. However, the District Court had completely ignored his arguments on that point.

In particular, the applicant referred to a position taken by the criminal law bench of the Supreme Court (no. Tpj 63/2009 of 7 December 2009) that if witness evidence was the only or decisive incriminating evidence, the witness had to be heard or, as the case may be, re-heard after the accused had been charged in order to safeguard the accused’s rights of defence and to adversarial proceedings. He argued that, although formally speaking C was his co-accused and not a witness, mutatis mutandis, the precedent fully applied to his case. Accordingly, C’s initial statements had not been admissible as evidence and the only admissible submissions he had made about the applicant had been those of 25 June 2009 and afterwards.

The prosecution also appealed, alleging that the first-instance court had erred in the determination of the applicant’s sentence.

On 31 August 2010 the Regional Court decided on the appeals by increasing the applicant’s sentence to eleven years and seven months. It held that C’s early statements were not excluded as evidence because two of them had been made in the presence of his lawyer and that one of those two had actually been made before a judge, which meant any coercion was excluded. The Regional Court also found that the statements had not been the only evidence against the applicant, that he had also been incriminated by D and by the fact that the general description of the incident by A and B had corresponded to that in C’s early testimony.

In a subsequent appeal on points of law and constitutional complaint the applicant raised similar arguments to those above. He added specifically that he was not relying on any coercion of C when the latter made his initial statements since any such coercion or lack of it was of relevance for the admissibility of those statements as evidence in relation to C, but was irrelevant in relation to the fact that he himself had been unable to exercise his rights of defence during those statements.

The appeal and constitutional complaint were dismissed on 29 June and 29 September 2011. In their respective decisions, the Supreme Court and the Constitutional Court referred to the reasoning behind the lower courts’ decisions, considered that the applicant had merely disagreed with their assessment of the evidence, and found no unlawfulness or arbitrariness in the decisions.

On 27 March 2013 the applicant applied to have his trial reopened, relying on a Constitutional Court judgment of 28 November 2012 which had declared unconstitutional some statutory provisions that had played a role in his sentencing.

A reopening of the trial was allowed and on 22 April 2014 the District Court reduced the applicant’s prison term to seven years. The ruling became final and the applicant finished serving his sentence on 22 July 2016.


Ineta Ziemele;Ledi Bianku;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney;Zdravka Kalaydjieva

The applicants, Ms Derya Ercan, Ms Kardelen Ercan, Ms Nazmiye Ercan, Mr Zeki Ercan, Ms Nurcan Taçar, Ms Fatma Tutuk, Mr Ali Ercan, Mr Engin Ercan and Mr Zayim Ercan are Turkish nationals who were born in 1982, 2001, 1936, 1961, 1971, 1963, 1959, 1970, and 1965 respectively and live in Kırklareli, Turkey. They were represented before the Court by Mr M. Demir, a lawyer practising in Istanbul.

The Bulgarian Government (“the Government”) were represented by their Agent, Ms A. Panova, of the Ministry of Justice.

The Turkish Government, who intervened in the case in accordance with Article 36 § 1 of the Convention, were represented by their Agent.

The applicants are relatives of Yalçın Ercan, who died on 17 April 2008 while resisting arrest by Bulgarian coastguards. Mr Ercan was the first applicant’s husband, the second applicant’s father, the third applicant’s son and the remaining applicants’ brother. He was working as a fisherman off his home village of Beğendik, which is located on the seafront at the north-westernmost point of Turkey, close to the border with Bulgaria.

Early in 2008 the Regional Border Service in Burgas (“the RBS”) registered numerous incursions into Bulgarian waters in the Black Sea by Turkish fishermen’s vessels. In all cases it informed the Turkish border authorities, and the problem was discussed during a bilateral meeting on 13 February 2008. Data collected at the observation and radiolocation station in the border village of Rezovo showed that one of the most frequent trespassers was the fishing vessel Ömer Reis-2 domiciled at the mouth of the Rezovska River (Mutludere).

By order of the Bulgarian Minister of Agriculture the fishing of turbot in Bulgarian territorial waters was prohibited between 15 April and 15 June 2008. In order to prevent possible poaching by Turkish fishermen, on 14 April 2008 the head of the RBS detached to the border area a “Mobile Border Control Group”, which included four coastguards under the command of Chief Inspector N.K.

At 6.39 a.m. on 17 April 2008 the observation station in Rezovo registered a fishing vessel, which had penetrated about one nautical mile into Bulgarian territorial waters. The fishermen on board were observed pulling fishing nets out of the water; it appeared that the nets had been placed there earlier.

At 6.50 a.m. the Mobile Border Control Group was sent to intercept the vessel. Once the officers approached it, on board an inflatable motorboat, they recognised it as the Ömer Reis-2. There were three people on board – Yalçın Ercan and two of his brothers, Engin and Zayim Ercan (the eighth and ninth applicants).

When they spotted the coastguard boat, Yalçın and Zayim Ercan, who were on deck, started cutting off the nets, and Engin Ercan, at the helm, directed the Ömer Reis-2 towards Turkish territorial waters. The coastguard boat caught up with their vessel. Using gesture, and once they were nearer, vocally in Bulgarian and English, the coastguards gave orders to the fishermen to stop. The Ömer Reis-2 did not stop. Instead, Ergin Ercan steered it towards the coastguard boat, which was smaller, attempting to overturn and sink it. At the same time, using long wooden boathooks, and once the two boats were close enough, Yalçın and Zayim Ercan repeatedly attempted to hit the coastguards and puncture their boat’s inflatable sides.

On seeing this, Chief Inspector N.K. gave his officers the order to fire warning shots. More than twenty shots were fired. Although they were aimed into the air and not at anyone, some of them hit the Ömer Reis-2’s port side and the cabin at the helm. They did not injure anybody on board.

As this did not make the Ömer Reis-2 stop, and seeing that its crew continued behaving aggressively, attempting to puncture and sink the coastguard boat, Chief Inspector N.K. ordered his officers to board the fishing vessel.

The coastguards were wearing armoured life jackets, which did not permit them to also wear holsters. That is why, upon boarding the Ömer Reis-2, they attached their weapons, Scorpio sub-machine guns, to special metal rings on their jackets. As ordered by Chief Inspector N.K., the guns had their safety catches on. None of the guards had a gun in their hand.

Officer M.T. was the first one to board the fishing vessel, followed by Officer N.P. Their task was to immobilise and handcuff Yalçın Ercan. They managed to wrestle him to the ground, after which Officer N.P. advanced towards the helm to attempt to stop the vessel. Officer M.T. and Yalçın Ercan continued struggling on a pile of fishing nets. On several occasions during the fight Yalçın Ercan attempted to grab Officer M.T.’s gun, which had come unfastened from the ring on his jacket and was hanging by a short cord. Finally, Officer M.T. managed to immobilise Yalçın Ercan and handcuff him. By that time another officer, Z.P., had immobilised Zayim Ercan, and Officer N.P. was struggling with Ergin Ercan at the helm, attempting to stop the vessel. Chief Inspector N.K. had remained in the coastguard boat. At this point Chief Inspector N.K. received information that the two boats were about to enter Turkish territorial waters, and ordered his men to release the fishermen.

While Officer M.T. was removing Yalçın Ercan’s handcuffs, the latter made sudden abrupt movements, pushing the officer back on to the fishing nets. M.T. immediately jumped forward. At the exact moment when he put his hands on Yalçın Ercan, three gunshots were heard. Officer M.T. heard Yalçın Ercan groan and looked at his gun. It was between his legs (he was kneeling), entangled in the fishing nets, its muzzle pointing towards Yalçın Ercan’s back. He took it and saw that it was set at automatic fire. He switched the safety catch back on. He stood up and went to the cabin, where he helped Officer N.P. immobilise Ergin Ercan and stop the fishing vessel.

Immediately after that the officers took Yalçın Ercan on to their boat and called Rezovo to say that a man had been injured. Once on land, they transferred Yalçın Ercan into the ambulance which had arrived. However, he died on the way to hospital.

Later that day the Ömer Reis-2 was towed by a coastguard cutter to the port of Tsarevo.

Criminal proceedings in connection with Yalçın Ercan’s death were opened on 17 April 2008.

On the same day the investigator in charge of the case inspected the two boats involved in the incident. It was noted that the Ömer Reis-2 was 7.4 metres long and 2.4 metres wide. Two dark-red stains were found on the deck. There was also a pile of turbot fishing nets; when they were moved, two cartridge cases fell out of them. On the walls of the small cabin at the helm there were eight bullet holes. Another bullet was found embedded in the vessel’s port deck.

The coastguard boat was 4.5 metres long and 2 metres wide. Several traces of the impact of hard objects were observed on its left inflatable side.

The coastguards who had participated in the operation were interviewed on 17 April 2008. Officer M.T. stated that when the lethal shots were fired he had not initially been aware that they had come from his gun.

Officer Z.P. said that after the fatal shots he had seen M.T.’s gun caught in the fishing nets.

Officer N.P. stated that before boarding the fishing vessel he had been hit by one of the fishermen with a boathook. He had not heard the shots which had injured Yalçın Ercan because at that moment he had been wrestling with Yalçın’s brother Ergin. He explained that he and his colleagues had been trained to respond to similar situations. Lastly, he said that he was very familiar with Scorpio sub-machine guns.

The group’s commander, Chief Inspector N.K., said that he had judged Scorpio sub-machine guns the most appropriate weapons to take for the operation because of their versatility. He explained that all members of the group had also been carrying smaller guns and that in the boat they had had an electroshock Taser. He said that during the operation he had been in constant contact with the observation station in Rezovo and the RBS. He had sought and obtained the RBS’s prior approval before ordering his men to fire warning shots.

Officer M.T. was once again examined on 23 June 2008, and Chief Inspector N.K. and Officers N.P. and Z.P. were examined on 2 July 2008. They reiterated the statements they had made earlier. Chief Inspector N.K. said in addition that he had ordered the warning shots because the fishermen were directly endangering his men’s lives. Officer Z.P. explained that he was not very familiar with Scorpio sub-machine guns. He said that he, N.P. and M.T. had found these guns awkward to carry, as it had been impossible to wear holsters and they had had to attach the guns to their jackets.

Zayim and Engin Ercan were interviewed on 17 April 2008. They stated that they had not obeyed the coastguards’ order to stop because they believed that they were still in Turkish territorial waters.

They were interviewed again on 22 May 2008. Zayim Ercan stated that he and his brother Yalçın had not attempted to resist arrest. Engin Ercan said once again that he believed that the vessel had not left Turkish territorial waters. Once the coastguard boat had approached, he had aimed to prevent a clash with it. He had not known what his brothers were doing in the rear part of the boat. Like his brother Zayim, he stated that the three of them had done nothing to resist arrest.

The two officers who had been on duty at the observation station in Rezovo in the early hours of 17 April 2008 were interviewed on 5 May 2008. They explained that they had observed the Ömer Reis-2’s movements, and had kept Chief Inspector N.K. informed of them. They said that they had transferred to the RBS his request to be authorised to order warning shots, had some time later been told by him that a Turkish fisherman had been wounded, and had then called an ambulance.

A post-mortem examination of Yalçın Ercan’s body was carried out on 17 April 2008. It found three gunshot wounds, situated close to each other, in the middle part of the back. The bullets had touched the heart, the liver, the lungs and the small intestines, thus causing death. There was another wound on Yalçın Ercan’s head, caused by a hard object, which was unrelated to the cause of death.

Zayim and Engin Ercan were examined by a doctor on 22 April 2008. He observed a number of small bruises on their bodies. In addition, Zayim Ercan had a black eye and a small cut close to the left eyebrow.

Officer N.P. was examined on 18 April 2008. Both his hands were bruised and swollen.

A ballistics report was drawn up on 12 June 2008. It confirmed that the shots which had fatally wounded Yalçın Ercan had been fired by the gun used by Officer M.T., and concluded that they had been fired at a distance of between 30 and 60 cm. A combined medico-ballistic expert report dated 28 August 2008 showed in addition that at the moment of the fatal shots Yalçın Ercan had been lying on his right side, with the upper part of his body bent forwards. The report concluded further that the lethal shots had been fired within a very short time frame.

Several reconstructions of the scene of the incident staged on board the Ömer Reis-2 showed that Officer M.T.’s gun could have fired a shot without anyone touching the trigger, if it was entangled in the fishing nets and at the moment when Officer M.T. was thrusting his body abruptly forwards. It was also shown to be possible, when the gun was being rubbed against a human body, for its switch to move to automatic mode. Lastly, it was shown that a shot could also be fired when the participant playing the role of the victim in the reconstruction attempted to grab the gun with his left arm stretched behind his back.

On 19 June 2008 the prosecutor in charge of the case brought charges against Officer M.T. for causing death through negligence.

On 16 October 2008 he decided to discontinue the criminal proceedings, considering that Officer M.T. had not committed any offence and that Yalçın Ercan’s death had been a fortuitous event. The prosecutor pointed out, in particular, that Officer M.T. had been unable to foresee or prevent the firing of the shots.

The first and third applicants (Yalçın Ercan’s wife and mother), with the assistance of their legal representative in Bulgaria, lodged an appeal. They argued that Officer M.T. had acted with criminal negligence. Upon their appeal, on 3 November 2008 the decision of the prosecution was upheld by the Sliven Military Court. However, upon a further appeal by those applicants, on 23 December 2008 the decision was quashed by the Military Court of Appeal, which considered that it had not been sufficiently reasoned and that further evidence needed to be collected.

The prosecutor resumed the investigation of the case and in a new decision of 3 July 2009 discontinued the criminal proceedings. On the basis of the evidence described above he concluded that Officer M.T. had not himself pulled the trigger of his gun, and that the lethal shots had been fired when Yalçın Ercan had touched it while wrestling with the officer during his repeated attempts to take hold of the gun, or after the trigger had become entangled in the fishing nets. Either way, Yalçın Ercan’s death had been a fortuitous event, which Officer M.T. could not have foreseen or prevented. He had abided by the relevant safety rules, most notably by switching the gun’s safety catch on before boarding the Ömer Reis-2. It was also significant that Yalçın Ercan and his brothers had violently resisted arrest.

The first and third applicants appealed, contesting in particular the conclusion that Yalçın Ercan could have pulled the trigger himself. On 12 October 2009 the Sliven Military Court quashed the prosecutor’s decision, finding that it was not sufficiently reasoned, and remitted the case.

Upon an appeal by the prosecution against the Military Court’s decision, on 13 November 2009 the Military Court of Appeal finally upheld the discontinuance of the criminal proceedings. It found that the prosecutor’s decision was well reasoned and that there was no indication that Officer M.T. had committed an offence. It also dismissed the first and third applicants’ argument that Officer M.T. had been negligent because he had not been wearing a holster and, while struggling with Yalçın Ercan, had left his gun hanging in front of him. It pointed out that Officer M.T.’s health and life were in danger at the material time. Furthermore, he could not be held responsible for the fact that his gun had become unfastened from the ring on his jacket. The main responsibility for the incident was to be borne by Yalçın Ercan, who had failed to obey the coastguards’ lawful orders.

The bringing of charges against Officer M.T. on 19 June 2008 sparked a wave of protests by nationalists, who called the prosecutor in charge of the case “a traitor” and Officer M.T. “a hero”. Journalists in Burgas created an “initiative committee” in defence of the officer and adopted a declaration, stating that the bringing of charges against him “would have a demotivating effect” on the border police. On unspecified dates in July 2008 this declaration was sent to the Chief Public Prosecutor, the President of the Republic, the Speaker of Parliament, and other bodies. The “initiative committee” also started collecting signatures in support of Officer M.T. According to reports in the local media more than 200,000 people signed the petition. According to the same reports, the mayors of Burgas and Tsarevo and the president of the municipal council of Burgas also signed the document.

In July 2008 the municipal council of Burgas made Officer M.T., as well as his colleagues who had participated in the operation of 17 April 2008, honorary citizens of the city.

In January 2009, following the Military Court of Appeal’s decision of 23 December 2008 remitting the case for further investigation (see paragraph 35 above), members of Parliament representing the Burgas constituency sent a letter to the Inspectorate of the Supreme Judicial Council, urging it to intervene in the criminal proceedings. Also in January 2009 the local newspaper Chernomorski Far claimed that the President of the Republic had met Officer M.T.’s father and had promised to do whatever was in his power to ensure that his son would not be brought to trial.

The Tsarevo District Court, in a judgment of 2 October 2008, upheld by the Burgas Regional Court on 12 January 2009, convicted Zayim and Engin Ercan of disorderly conduct and poaching on 17 April 2008. Zayim Ercan was also convicted of causing a minor bodily injury to Officer N.P., whom he had hit with a wooden boathook. Both brothers were sentenced to one year’s imprisonment, suspended for three years. Zayim Ercan was ordered to pay Officer N.P. 1,000 Bulgarian levs (BGN) in compensation for non-pecuniary damage.


CASE OF MĂTĂSARU AND SAVIȚCHI v. THE REPUBLIC OF MOLDOVA

Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);Violation of Article 11 - Freedom of assembly and association (Article 11-1 - Freedom of peaceful assembly)

The applicants, who are husband and wife, were born in 1970 and live in Chișinău.

On 29 January 2008 the applicants were involved in a street protest as a result of which they were arrested and detained for six hours and fortyfive minutes. On 18 December 2008 the first applicant was again involved in a street protest, as a result of which he was arrested and detained for approximately four hours and a half. Later both applicants were acquitted and the actions of the police were found to be unlawful. The facts concerning those protests were described in detail in Mătăsaru and Saviţchi v. Moldova, no. 38281/08, §§ 6-58, 2 November 2010.

On 29 January 2009 the first applicant organised again a street protest and was arrested again and detained for some six hours. Later the applicant was acquitted and the actions of the police were found to be unlawful.

On 2 November 2010 the Court adopted a judgment in the case of Mătăsaru and Saviţchi (cited above), in which it declared inadmissible the applicants’ complaints concerning the alleged breaches of their rights guaranteed by Articles 5 and 11 of the Convention on the ground of their failure to exhaust domestic remedies (see Mătăsaru and Saviţchi (cited above, § 75).

After that, the applicants brought a civil action under Law 1545 (on compensation for damage caused by illegal acts of the criminal investigation bodies, the prosecution authorities or the courts) seeking compensation in respect of the breach of their rights guaranteed by Articles 5 and 11 of the Convention in regard to all three street protests of 2008 and 2009.

By a final judgment of 6 February 2013 the Supreme Court of Justice acknowledged the breach of the applicnts’ rights guaranteed by Articles 5 and 11 of the Convention and awarded them the equivalent of 900 and 270 euros (EUR), respectively.


Preliminary objection dismissed (Article 34 - Victim);Preliminary objection dismissed (Article 35-1 - Exhaustion of domestic remedies);Remainder inadmissible;Violation of Article 6 - Right to a fair trial (Article 6 - Enforcement proceedings;Article 6-1 - Access to court);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions);No violation of Article 11 - Freedom of assembly and association (Article 11-1 - Freedom of peaceful assembly);Non-pecuniary damage - award

Dmitry Dedov;Elisabeth Steiner;Erik Møse;Isabelle Berro-Lefèvre;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Ksenija Turković

The applicants live in Vladikavkaz.

The applicants are former policemen. They were all involved in the conflict-resolution and peace-keeping operation in the zone of the armed Ossetian-Ingush conflict in October and November 1992. As a consequence they were entitled to certain social payments.

The applicants sued the Severnaya Osetiya-Alaniya Regional Department of the Ministry of Internal Affairs (hereafter “the regional internal-affairs department”) for social-payments arrears. On various dates in 2001 or 2002 the Leninskiy District Court of Vladikavkaz allowed their claims and ordered that the regional internal-affairs department pay the arrears. The dates of the judgments and the amounts of the awards are listed in the Annex.

The applicants submitted the writs of execution to the Ministry of Finance. However the Ministry returned the writs of execution on the ground of lack of funds to pay the judgment debts.

The judgments in favour of all the applicants were eventually enforced between September 2004 and April 2005. The dates of payment in respect of each applicant are listed in the Annex.

All the applicants except Mr Varziev sued the regional internal-affairs department for pecuniary damage incurred through the belated enforcement of the judgments in their favour. On various dates in 2005 the Leninskiy District Court of Vladikavkaz acknowledged that the delays in enforcement had violated the applicants’ rights and awarded each of them a sum to cover inflation losses sustained as a result. The awards were paid on various dates in 2005. One of the applicants, Mr Tsallagov, did not submit the writ of execution to the Ministry of Finance and did not therefore receive his award.

On 15 September 2003 the applicants notified the Vladikavkaz Town Administration of their intention to hold a demonstration in Svoboda Square in Vladikavkaz to protest against the regional internal-affairs department’s failure to settle the social-payments debt. The demonstration was scheduled to start on 30 September 2003 and was announced as being of unlimited duration.

On 24 September 2003 the Town Administration refused to approve the venue and suggested that the demonstration be held in front of the Tkhapsayev theatre.

On 30 September 2003 the applicants began their demonstration in Svoboda Square in front of the Severnaya Osetiya-Alaniya Regional Government building. About one hundred people participated in it. They put up tents and remained in the square day and night. They displayed placards and banners stating their criticisms and demands.

On 3 October 2003 the Vladikavkaz Town Legislature annulled the decision of 24 September 2003 at the request of the regional internal-affairs department “in connection with a risk of terrorist acts in the places of mass gatherings of people”. It asked the regional internal-affairs department to take measures to break up the demonstration and restore public order in Svoboda square.

On 11 October 2003 the Leninskiy District Court of Vladikavkaz declared the demonstration unlawful because it violated the rights of others. The court found that it hampered citizens’ access to public transport and to the cinema and officials’ access to the administrative buildings situated in Svoboda Square. The chanting of slogans by the applicants also disturbed the officials’ work. Moreover, the regional internal-affairs department had information about an expected outbreak of terrorist activities in the region. The mass gathering of people in the vicinity of the administrative buildings increased the risk of terrorist acts and other offences being committed and impeded the conduct of preventive operations by the law-enforcement agencies. The court further noted that the Vladikavkaz Town Administration had ordered that all meetings and assemblies be held in front of the Tkhapsayev theatre; therefore the demonstration in Svoboda Square was in breach of that order. Lastly, the court found that public gatherings of unlimited duration were not authorised by Russian law.

It appears from the videotape and press articles submitted by the applicants that on the same day the police ordered the protesters to disperse. As the protesters refused to stop the demonstration, the police dismantled the tents they had erected. The protesters, however, put the tents back up and continued their demonstration.

On 18 November 2003 the Supreme Court of the Severnaya Osetiya-Alaniya Republic upheld the judgment of 11 October 2003 on appeal.

On 27 November 2003 the Parliament of the Severnaya Osetiya-Alaniya Republic decreed that Svoboda Square in Vladikavkaz was reserved for meetings, assemblies and demonstrations organised at the initiative of the authorities of the Severnaya Osetiya-Alaniya Republic and the town of Vladikavkaz. Other public gatherings were to be held at a venue to be determined by the Vladikavkaz Town Administration.

On an unspecified date in December 2003 the protesters ended the demonstration.


Violation of Article 6 - Right to a fair trial (Article 6 - Enforcement proceedings;Article 6-1 - Access to court);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions)

Branko Lubarda;Georgios A. Serghides;Pere Pastor Vilanova

The applicant was born in 1957 and lives in Bela Crkva.

He was employed by “Betonjerka”- DP, a socially-owned company based in Bela Crkva (hereinafter “the debtor”).

On 20 May 2003 the Bela Crkva Municipal Court ordered the debtor to pay the applicant specified amounts on account of salary arrears and social insurance contributions, plus the costs of the civil proceedings. On the same day this judgment became final.

On 14 October 2003 upon the applicant’s request to that effect, the Bela Crkva Municipal Court ordered the enforcement of the said judgment and further ordered the debtor to pay the applicant the enforcement costs.

The Government in its observations maintained that the said judgment had been fully enforced by the domestic decisions of 2 December 2004, 4 November 2005 and 19 May 2006 respectively. The applicant did not contest this submission.

On 10 February 2009 the Bela Crkva Municipal Court ordered the debtor to pay the applicant other specified amounts on account of salary arrears and social insurance contributions. In addition the domestic court ordered each party to pay its own costs of the civil proceedings. This judgment became final on 18 February 2009.

On 30 April 2009 upon the applicant’s request to that effect, the Bela Crkva Municipal Court ordered the enforcement of the said judgment and further ordered the debtor to pay the applicant the enforcement costs.

The said decision remains unenforced to the present date.

On 12 May 2009 the Pančevo Commercial Court opened insolvency proceedings in respect of the debtor.

On 22 September 2009, upon a submission to that effect, the Pančevo Commercial Court recognized the applicant’s respective claims.

On 27 August 2012 the Pančevo Commercial Court terminated the insolvency proceedings against the debtor, having decided to continue with the insolvency action against the debtor’s estate.

The insolvency proceedings are still pending.

On 8 August 2013 the applicant lodged a constitutional appeal complaining firstly about the fairness of the insolvency proceedings. Further, he requested the Constitutional Court to adopt a decision obliging the respondent State to pay from its own funds his unpaid salaries. In particular, the applicant had referred only to the judgment which had been adopted in his favour on 10 February 2009. In so doing, the applicant also relied on the Court’s case-law related to the non-enforcement of domestic court decision rendered against socially-owned companies in Serbia.

On 31 March 2015 the Constitutional Court dismissed the applicant’s appeal finding that it is not vested with the power of the insolvency court to enable the payments of the claims recognized in the insolvency proceedings.


André Potocki;Angelika Nußberger;Carlo Ranzoni;Erik Møse;Mārtiņš Mits;Síofra O’Leary

The applicant, Ms I.D., is a Norwegian national, who was born in 1989 and lives in F. The President granted the applicant’s request for her identity not to be disclosed to the public (Rule 47 § 4). She was represented before the Court by Ms R. Arnesen, a lawyer practising in Bergen.

The applicant is the mother of X, a girl born in August 2011. The child was born out of wedlock and the parents do not live together. Prior to giving birth to X, the applicant moved to L, in the county of Nord-Trøndelag, where her mother lived.

On 13 September 2011, the family clinic (“familieklinikken”) at the hospital in L notified the child welfare authorities that the mother needed help beyond what could be offered by the health services. On 19 September 2011, the child welfare authorities received a notification from the psychiatric clinic at the same hospital, being worried about the applicant’s mental health and urging the authorities to give priority to the matter. On 29 September 2011, the public health nurse contacted the child welfare authorities, expressing concerns as to the applicant’s mental functioning and her ability to understand X’s signals and needs. The public health nurse also asked the authorities to give priority to the matter.

Upon these notifications, the child welfare authorities were in contact with the applicant, they held consultations with her, and observed the interplay between her and X. During this period, the applicant and X were also treated in hospital; first the applicant at the psychiatric clinic and subsequently both of them at the child clinic (“barneklinikken”), because X had lost weight. They were discharged on 23 December 2011. On 4 January 2012, the child welfare authorities offered the applicant a place with X at a family centre. She declined the offer.

In January 2012, X had again lost weight, and she and the applicant were referred to hospital. The applicant was for the second time offered a place at a family centre, but declined the offer. When X was to be discharged from the hospital, on 13 January 2012, the child welfare authorities made an emergency decision to take the daughter into public care. On 16 January 2012, the applicant accepted the offer to stay at the family centre, where she stayed with X from 26 January 2012 until 26 April 2012. After the stay, the authorities offered further assistance, but the applicant declined. The applicant was called in for a meeting with the authorities, but did not appear. In a letter of 24 May 2012 from the applicant’s lawyer, it was stated that she did not want assistance measures from the authorities.

On 5 July 2012, the child welfare authorities in L petitioned the County Social Welfare Board (fylkesnemnda for barnevern og sosiale saker) in Trøndelag for an order to place X in public care.

In August 2012, the applicant and her mother moved together to R, in the county of Oppland.

On 25 January 2013, the Trøndelag County Social Welfare Board decided to place X in public care and granted the applicant the right to visit her four times a year, each time for three hours. It noted that X was a vulnerable child, who had experienced disorder (“uro”) and change of carers. The Board held that the first months of a child’s life are paramount for the connection that is to be established between the child and the care provider. Insufficient connection may put the child’s further development at risk, and this includes risks of developing psychiatric problems.

Weight issues no longer posed a problem. The concerns related to X’s functioning with the applicant. X had developed positively during the stay at the family centre, but negatively in the period that followed the discharge.

Even if X was a vulnerable child, she was not considered to be a child with care needs which were out of the ordinary. However, the applicant was so immature and insecure as an adult, and so passive as a carer, that X’s fundamental needs of personal contact and security were not met. If the current situation were to continue, it would be detrimental to X’s further development.

According to staff at the family centre, whilst clearly loving X, the applicant showed little understanding of the child’s spectre of feelings and had major difficulties in reflection on and understanding of X’s different signals. In sum, the applicant’s own functioning was characterised as vulnerable. The Board considered that she had suffered from considerable mental health problems, but had declined recommended treatment of the underlying causes. The applicant had no education or work and a limited support network. She had had considerable problems relating to appointments and had appeared rigid and immature to the Board. Throughout all of X’s life, she had shown that she had difficulties with taking advice. Although the applicant had periodically shown willingness to accept advice, she had lacked the capacity to follow it.

The County Social Welfare Board found that further assistance measures would be insufficient to remedy the deficiencies in X’s care. The applicant had received comprehensive assistance measures over a period of time. The family centre had represented the most extensive assistance offer at the child welfare authorities’ disposal, and the applicant had been unable to follow even very specific advice. She did not appear to be particularly motivated for future co-operation with the authorities, and was considered as a young and immature mother. Whilst the Board recognised that her abilities to provide care might develop, it considered that achieving this would be a demanding and long-lasting process.

In conclusion, the County Social Welfare Board found that it would be in X’s best interest to be placed in public care. She needed carers who could offer a secure, predictable and stable daily life, and who were clear and consistent. It was decisive for X to be given carers who could offer social, linguistic, motor and cognitive stimulation, which would require that they could see and give priority to her needs. The applicant was not able to do so.

After the decision, the applicant and X lived in hiding from the child welfare authorities.

The applicant brought the Trøndelag County Social Welfare Board’s decision before the District Court (tingrett), which appointed a psychologist as an expert. This expert was, however, released from his appointment when it became clear that he was unable to establish contact with the applicant, as she was living in hiding.

At the oral hearing before the District Court, on 26 June 2013, the applicant was present. On the second day of the hearing, the court decided to postpone the proceedings as an agreement was reached that a new psychologist should be appointed as expert and further assess the care situation. The District Court also, on 28 June 2013, suspended the implementation of the County Social Welfare Board’s decision.

In August 2013, the applicant moved to F, in Sogn and Fjordane county, where she had two brothers.

The new expert delivered his written opinion to the District Court on 3 October 2013.

From the expert opinion, the child welfare authorities learnt of X’s whereabouts, and, on 4 October 2013, took an emergency decision to place her in foster care. The County Social Welfare Board approved the decision on 7 October 2013 and X was placed at a location without the applicant being made aware of her whereabouts.

The proceedings before the District Court were resumed on 15 October 2013.

In its judgment of 25 October 2013, the District Court, composed of one professional judge, one psychologist as expert judge and one lay person, in accordance with section 36-4 of the Dispute Act (see paragraph 53 below), upheld the decision of the County Social Welfare Board.

The District Court stated that X appeared to have developed adequately, but still found it likely that she was vulnerable due to her experiences with moving and a mother with limited parenting abilities. There were shortcomings in the applicant’s capacity to provide care. Although she had no clear medical diagnosis, she had personal problems and her ability to reflect was weak (“svak refleksjonsevne”). Professional assistance would be required if the applicant were to develop into a person with good care skills, who would also be able to handle challenging situations. The applicant had shown little understanding of her need for such assistance. In conclusion, the District Court found that there were serious deficiencies in the applicant’s parenting skills as far as the personal contact and security required for X were concerned.

As to assistance measures, the court-appointed expert had concluded that these would not remedy the challenges the applicant faced in her care of X. During the court proceedings, the applicant had declared that she did not need assistance, but that she would not oppose it. Although the District Court considered that the applicant would be able to develop, it concluded that she did not at that time have the necessary capacity for introspection and understanding of her need of help (“selvinnsikt og erkjennelse”). Against that background, it concluded that further assistance measures would not be in X’s best interests.

The applicant did not appeal against the District Court’s judgment.

In 2015, the applicant requested that X be returned to her. The case was heard by the County Social Welfare Board on 21 and 22 April 2015. The applicant met with her counsel and gave testimony. Nine witnesses were heard.

On 4 May 2015, the County Social Welfare Board rejected the request for X’s return, but increased the contact rights to five times per year, each time for three hours.

With respect to X’s needs, the Board noted that when the initial decision to place X in public care had been adopted, the Board had found that X was a vulnerable small child that had experienced disorder and changes of carers in her short life, but that she did not have special care needs. The District Court had at that time similarly found that X did not have special care needs, even though she was vulnerable. However, the Board assessed that subsequent to the care decisions, clear signs that X had been marked of living in serious neglect when cared for by the applicant, had come to light. She went up to strangers and called them “mummy”; had no protests against leaving the applicant; and did not give any signals when she was awake or woke up at night. Moreover, she was rocking (“rugget”) (for instance when the doorbell rang, she would hide under a table and rock), and it was difficult to obtain contact with her when it occurred. The foster mother had additionally described how X had been liable to knock herself on the head.

In a medical discharge summary from the local Children’s and Young People’s Psychiatric Out-Patient Clinic (Barne- og ungdomspsykiatrisk poliklinikk, BUP), dated 4 February 2015, X had been diagnosed with “other reactions to severe stress”. Her kindergarten had additionally described her as roaming (“flakkende”) and difficult to keep calm during meals and to involve in playing. The kindergarten had given X specific follow-up and offered her special pedagogical help ten hours per week.

In the Board’s view, X had, at the time when she had been placed in public care, beyond doubt shown clear symptoms of abnormal development (“skjevutvikling”) and clear signs of attachment problems (“tilknytningsproblematikk”). One of the psychologists had been of the view that X would probably have developed an attachment disorder (“tilknytningsforstyrrelse”), had she not been placed in public care. After the placement, however, X had developed positively in all areas. Despite the positive development she was still a vulnerable child with special needs for appropriate care. Consequently, her carers would need more than ordinary caring skills.

The applicant had also developed positively, she was older and her life had become more orderly. She appeared somewhat more mature, and she had had positive and promising recent experiences with work, albeit only for a very short time.

However, this development concerned primarily external structural conditions such as a more stable living situation and adaptation to social life. The applicant’s functioning still had to be characterised as vulnerable. For a number of years she had had issues with adaptation (“tilpasningsvansker”) and problems with her mental health. She was to a large degree evasive and distrustful and suffered periodically from depression issues. Although the applicant had become less isolated and no longer suffered from anxiety problems, the stability of her mental health was still uncertain.

Further, the Board reiterated that when the decision to place X in public care had been adopted, the Board had considered that the problems had primarily been at the level of emotional care. The applicant had major difficulties as to reflection and understanding of X’s different signals.

The appointed psychologist had described that when the applicant had to take care of X on her own, she was incapable both as concerned physical and psychological care and stimulation. As the applicant did not understand that she needed help, it would be difficult to defend the appropriateness of her having the care. In many ways, the applicant was herself in need of help, as she had a relatively weak general functioning and ability to adapt.

Moreover, the appointed psychologist had observed the interplay between the applicant and X during two visits and compared his own observations to information given by the child welfare authorities, the municipal health service and the family centre. The information gave a relatively unambiguous picture of the applicant as a person with low stamina and tolerance of frustration, and who showed little reflection about herself as a carer as she had difficulties in seeing the child and its needs.

The Board found that the prior evaluations of the applicant’s caring skills indicated that she had fundamental shortcomings in her care abilities that were likely connected to her personality and her difficult background.

Only a short time had passed since the decision of public care had been made, and the Board noted the difficulty inherent in attempting to change shortcomings that were connected to fundamental personality traits. The applicant’s emotional caring skills did not show signs of improvement and it was difficult to see that she had a greater understanding of the care issues; she continued to be of the opinion that her care had been appropriate when X lived with her. The applicant had still a considerably reduced ability for reflection and mentalisation concerning X’s needs and signals, and she demonstrated little insight as to the challenges X’s return would pose. The need for assistance measures would be so comprehensive that the applicant would need a person to assist her most of the day. This went beyond what the child authorities could offer.

The County Social Welfare Board additionally concluded that X had become so attached to the foster home that it would be detrimental to her further possibilities of developing if she were to be returned at that time. Although she had developed normally and well, another move would imply a clear risk for her and the danger of new attachment problems.

The decision of the County Social Welfare Board was brought before the District Court, which appointed a psychologist as expert. The expert delivered her report on 26 August 2015.

The District Court, again composed of one law judge, one psychologist and one lay person (see paragraphs 22 above and 53 below), heard the case from 7 to 9 October 2015. The applicant met with her counsel and gave testimony. The court-appointed expert gave oral testimony. Nine other witnesses were heard.

In its judgment of 23 October 2015, the District Court confirmed the Board’s decision of 4 May 2015. It observed at the outset that the Board, when deciding on the public care in 2013, had found that X did not have care needs out of the ordinary (see paragraph 11 above). However, she had been described as a child who had received marginal care and was therefore vulnerable.

The psychologist appointed as court expert (see paragraph 39 above) had described X as adequate for her age in spite of the insecurity and vulnerability she had developed when staying with the applicant in the beginning of her life. When she had arrived in the foster home in 2013, she had not asserted her needs and the foster parents had to teach her how to do so. She had been uncritical of strangers, she whimpered to get attention, and hit herself on the head when she was tired. In order to establish attachment to the foster home, it had only been the foster mother who had changed her diapers, fed her, put her to bed and comforted her. When the expert delivered her report in August 2015, X functioned very well in the foster home, and she was able to distinguish between the foster mother and the applicant as different mothers to her. In the kindergarten, special arrangements were made for X as new situations could be difficult for her. Apart from this, she functioned well in the kindergarten. The expert concluded that X was well-functioning in many ways, but that she, based on the difficulties and symptoms of development disorder she had shown, was still a vulnerable child who had special needs for an adapted care.

The foster mother’s testimony before the District Court had supported the description of the facts that had formed the basis of the expert’s evaluation of X and her needs. Similarly to the Board, the City Court further took account of X’s treatment at the Young People’s Psychiatric Out-Patient Clinic, and her diagnosis of “other reactions to severe stress” that had been given there, as well as the descriptions from the kindergarten on how X had developed positively but still needed particular supervision.

In conclusion, the District Court found that X appeared normal for her age, but that she was still a vulnerable child with an extra need for security and fixed routines. She was for that reason considered as dependent on carers with more than ordinary good care skills – adults who would be able to reflect on her reactions and behaviour.

It was likely that X’s symptoms of mal-development and attachment problems, that had been present during the first period after she had been placed in public care, had their major cause in neglect from the applicant during the two first years of X’s life. The fact that the applicant, after the decision on placement had been made in 2013, “fled” with X – i.e. relocated to other parts of the country without the authorities’ knowledge – in order to evade the implementation of the decision, not only supported the assessment that the applicant had been immature and with little understanding of the consequences of her own acts at that time but had also been a considerable strain and source of insecurity for X.

The applicant’s mental health situation had improved during the spring and summer of 2014, and this might indicate that they were partly linked to the placing of X in public care. However, the court found additional reason to point out that the applicant’s mental health had been troublesome also before that measure had been adopted. First, the court-appointed psychologist had in his report noted that the applicant understood that she had had a childhood and upbringing unfortunate for her personal development. She had herself been followed up by the Children’s and Young People’s Psychiatric Out-Patient Clinic for five years. Secondly, it had been the applicant’s mental health that had triggered the notifications of concern that led to the engagement of the child welfare authorities in 2011.

The applicant had undergone a considerably positive development with respect to practical arrangements. She had obtained her own apartment and an employment internship position supported by the social welfare authorities that she followed up well. Her finances were orderly; she had contact with her brothers and friends. She would thus be capable of providing appropriate material care.

However, it was doubtful whether the applicant would be able to offer X satisfactory emotional care. Whilst the applicant herself was of the opinion that she had no mental health issues, it had emerged that she had been depressed and had been followed up by the municipal authorities in order to activate. Although she had had a positive personal and social development, she was still vulnerable, and the court-appointed expert had concluded that she did not have the prerequisites and resources necessary to give X the emotional care that would support the child’s development. In the expert’s view, it was a positive matter that the applicant managed to follow up on the initiatives by the municipal and social security authorities, and she should be given some more time to establish as an independent adult. Over some time, she should be able to show that she had been stably well-functioning and could take over the care for her child.

The District Court agreed with the expert’s assessment and pointed particularly to the fact that the applicant’s positive development was thus far mostly connected to factors that impacted on the abilities to give material care. Ultimately, the court did not deem it necessary to decide whether the applicant was capable of offering X care that would meet the conditions for her return. X had developed ties to the foster home that provided a safe environment for her, and there were risks attached to an eventual return to the uncertain conditions in the applicant’s home. X had shown symptoms of considerable attachment problems when she was placed in the foster home in the autumn of 2013. These problems had had their major cause in the neglect X experienced during her first two years, when living with the applicant. Whilst X had had a significantly positive development during the time in foster care and had become close to adequate in development for her age, she was still vulnerable and needed care beyond what a normal child in her age needed. The good and stable care situation in the foster home had been the primary reason for the positive development. Returning the care of X to the applicant would at that time be capable of implying serious problems for X. It would imply returning to the environment in which X had been when the care was insecure, an environment which had formed the major reason for the attachment problems visible at the time when she had been placed in public care in 2013.

Whilst finding that the public care of X should not be discontinued, the District Court increased the contact rights to six times a year, each time for three hours. It observed in that regard that a balance had to be struck between, on the one hand, the child’s interest in stability and the possibility to develop bonds to the foster home. On the other hand, the contact with her biological parents had to be taken care of. When assessing the extent of the visiting rights, the District Court found that based on the information currently available, the placement had to be considered as long-term. In this connection it recalled that it had concluded that X could not be returned to the mother at that point in time because of her attachment to the foster home. The court considered it likely that this attachment would increase. Moreover, the court had to take account of the fact that X’s father also had similar rights, four times a year. However, the visits by the applicant had appeared positive. If the totality of the visits by both parents turned out to be troublesome to X, it would be more reasonable to reduce the father’s visiting rights than those of the applicant.

The High Court (lagmannsrett) refused leave to appeal on 22 January 2016. The Supreme Court (Høyesterett) rejected an appeal against that refusal on 31 March 2016.

The relevant sections of the Child Welfare Act of 17 July 1992 (barnevernloven) read as follows:

“Section 4-12 Care orders

A care order may be issued

(a) if there are serious deficiencies in the daily care received by the child, or serious deficiencies in terms of the personal contact and security needed by a child of his or her age and development,

(b) if the parents fail to ensure that a child who is ill, disabled or in special need of assistance receives the treatment and training required,

(c) if the child is mistreated or subjected to other serious abuse at home, or

(d) if it is highly probable that the child’s health or development may be seriously harmed because the parents are unable to take adequate responsibility for the child.

An order may only be made under the first paragraph when necessary due to the child’s current situation. Hence, such an order may not be made if satisfactory conditions can be created for the child by assistance measures under section 4-4 or by measures under section 4-10 or section 4-11.

An order under the first paragraph shall be made by the county social welfare board under the provisions of Chapter 7.

Section 4-21 Revocation of care orders

The county social welfare board shall revoke a care order when it is highly probable that the parents will be able to provide the child with proper care. The decision shall nonetheless not be revoked if the child has become so attached to persons and the environment where he or she is living that, on the basis of an overall assessment, removing the child may lead to serious problems for him or her. Before a care order is revoked, the child’s foster parents shall be entitled to state their opinion.

The parties may not demand that a case concerning revocation of a care order shall be dealt with by the county social welfare board if the case has been dealt with by the county social welfare board or a court of law in the preceding twelve months. If a demand for revocation of the previous order or judgment was not upheld with reference to section 4-21, first paragraph, second sentence, new proceedings may only be demanded when documentary evidence is provided to show that significant changes have taken place in the child’s situation.”

The relevant sections of the Dispute Act of 17 June 2005 (tvisteloven) read as follows:

“Section 36-1 Scope

(1) The provisions of this Chapter apply to legal actions which pursuant to special statutory provisions may be brought for judicial review of administrative decisions on coercive measures against individuals. Other claims cannot be included in the action.

Section 36-4 The composition of the court. Expert panel

(1) The district court shall sit with two lay judges, of whom one shall be an ordinary lay judge and the other shall be an expert. In special cases, the court may sit with two professional judges and three lay judges, of whom one or two shall be experts.