CASE OF MAGYAR KERESZTÉNY MENNONITA EGYHÁZ AND OTHERS v. HUNGARY

Preliminary objections joined to merits and dismissed (Article 35-1 - Exhaustion of domestic remedies);Remainder inadmissible;Violation of Article 11 - Freedom of assembly and association (Article 11-1 - Freedom of association) read in the light of Article 9 - (Art. 9) Freedom of thought conscience and religion (Article 9-1 - Freedom of religion);Non-pecuniary damage - finding of violation sufficient;Just satisfaction partially reserved

András Sajó;Egidijus Kūris;Guido Raimondi;Helen Keller;Nebojša Vučinić;Robert Spano

The applicants are religious communities and individuals. The applicant communities originally existed and operated lawfully in Hungary as Churches registered by the competent court in conformity with Act no. IV of 1990 (“the 1990 Church Act”).

In application no. 70945/11, Magyar Keresztény Mennonita Egyház (Hungarian Christian Mennonite Church) is a religious community active in Hungary since 1998. Mr J. Izsák-Bács is a Hungarian national who was born in 1959 and lives in Budapest. He is a minister of Magyar Keresztény Mennonita Egyház.

In application no. 23611/12, Evangéliumi Szolnoki Gyülekezet Egyház (Evangelical Szolnok Congregation Church) is a religious community active in Hungary since 1998. Mr P.J. Soós is a Hungarian national who was born in 1954 and lives in Budapest. He is a minister of Evangéliumi Szolnoki Gyülekezet Egyház.

This applicant community was involved in social activities outsourced by the municipality of Szolnok and had concluded an agreement with the State Treasury on the provision of services for homeless people. In 2011 the Treasury cancelled this agreement and granted the relevant subsidy only until 30 June 2011. As a consequence the applicant had to terminate the corresponding contract with the municipality, but was obliged to continue to perform its social services up to and including July 2011, thereby allegedly sustaining damage in the amount of 691,407 Hungarian forints.

In application no. 26998/12, Budapesti Autonóm Gyülekezet (Budapest Autonomous Congregation) is a religious community active in Hungary since 1998. Mr T. Görbicz is a Hungarian national who was born in 1963 and lives in Budapest. He is a minister of Budapesti Autonóm Gyülekezet.

In application no. 41150/12, Szim Salom Egyház (Sim Shalom Church) is a religious community active in Hungary since 2004. Mr G.G. Guba is a Hungarian national who was born in 1975 and lives in Budapest. He is a member of Szim Salom Egyház.

In application no. 41155/12, Magyar Reform Zsidó Hitközségek Szövetsége Egyház (Alliance of Hungarian Reformed Jewish Communities Church) is a religious community active in Hungary since 2007. Ms L.M. Bruck is a Hungarian national who was born in 1931 and lives in Budapest. She is a member of Magyar Reform Zsidó Hitközségek Szövetsége Egyház.

In application no. 41463/12, the European Union for Progressive Judaism is a religious association with its registered office in London. It acts as an umbrella organisation for progressive Jewish congregations in Europe. Szim Salom Egyház (see application no. 41150/12) and Magyar Reform Zsidó Hitközségek Szövetsége Egyház (see application no. 41155/12) are among its members.

In application no. 54977/12, Magyarországi Evangéliumi Testvérközösség (Hungarian Evangelical Fellowship) is a religious community active in Hungary since 1981.

In application no. 56581/12, Magyarországi Biblia Szól Egyház (“The Bible Talks” Church of Hungary) is a religious community active in Hungary for over twenty years.

In application no. 41553/12, the applicants (ANKH Az Örök Élet Egyháza (ANKH Church of Eternal Life), Árpád Rendjének Jogalapja Tradícionális Egyház (Traditional Church of the Legal Basis of Árpád’s Order), Dharmaling Magyarország Buddhista Egyház (Dharmaling Hungary Buddhist Church), Fény Gyermekei Magyar Esszénus Egyház (“Children of Light” Hungarian Essene Church), Mantra Magyarországi Buddhista Egyháza (Mantra Buddhist Church of Hungary), Szangye Menlai Gedün A Gyógyító Buddha Közössége Egyház (Szangye Menlai Gedun, Community of Healing Buddha Church), Univerzum Egyháza (Church of the Universe), Usui Szellemi Iskola Közösség Egyház (Usui Spiritual School Community Church), Út és Erény Közössége Egyház (Community of Way and Virtue Church)) are religious communities active in Hungary since 1999, 2008, 2005, 2001, 2007, 1992, 1998, 2008 and 2007 respectively.

On 30 December 2011 Parliament enacted Act no. CCVI of 2011 on the right to freedom of conscience and religion and the legal status of Churches, denominations and religious communities (“the 2011 Church Act”). It entered into force on 1 January 2012 and was subsequently amended on several occasions, most recently on 1 August and 1 September 2013.

Apart from the recognised Churches listed in the Appendix to the 2011 Church Act (see paragraph 22 below), all other religious communities previously registered as Churches lost their status as Churches but could continue their activities as associations. If intending to continue as Churches, religious communities were required to apply to Parliament for individual recognition as such.

In decision no. 6/2013 (III. 1.), the Constitutional Court found certain provisions of the 2011 Church Act to be unconstitutional and annulled them with retrospective effect.

Meanwhile, several applicants filed requests to have the minister responsible register them as Churches, but these applications were refused on the ground that – despite the decision of the Constitutional Court – the 2011 Church Act precluded the registrations requested.

After the Constitutional Court’s decision, several applicants applied to the National Taxation and Customs Agency seeking to be reissued with the number which is necessary in order to remain entitled to the 1% of income tax which taxpayers may donate to Churches. The National Taxation and Customs Agency suspended the procedure and invited the applicants to initiate a recognition procedure before Parliament. In the applicants’ submission, this demonstrated further disregard for the Constitutional Court’s decision.

Several applicants regained their status as Churches pursuant to the Constitutional Court’s decision.


Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect)

Marko Bošnjak;Vincent A. De Gaetano;Georges Ravarani

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

The applicants complained of the inadequate conditions of their detention. In applications nos. 484/16 and 20974/16, the applicants also raised other complaint under the provisions of the Convention.


Egidijus Kūris;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer

The applicants complained of the inadequate conditions of their detention.


Violation of Article 6 - Right to a fair trial (Article 6 - Civil 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)

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


Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Deprivation of property)

The applicant was born in 1968 and lives in Budapest.

The applicant was employed at a State institution. His employment was terminated in 2013. Upon the termination of his employment, a certain part of his severance payment was taxed at a 98% rate, in the amount of 5,648,101 Hungarian forints (HUF) (approximately 18,800 euros (EUR)).


Preliminary objection joined to merits and dismissed (Art. 35) Admissibility criteria;(Art. 35-1) Exhaustion of domestic remedies;Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 of Protocol No. 1 - Positive obligations;Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Jon Fridrik Kjølbro;Julia Laffranque;Ledi Bianku;Paul Lemmens;Robert Spano

The applicant was born in 1953 and lives in Enfield (United Kingdom).

The complaints raised in this application arise out of the Turkish military intervention in northern Cyprus in July and August 1974. The general context of the property issues arising in this connection is set out in the cases of Cyprus v. Turkey ([GC], no. 25781/94, §§ 13-16 and 28-33, ECHR 2001IV), and Demopoulos and Others v. Turkey (dec.) ([GC], nos. 46113/99 and 7 others, §§ 4-16, ECHR 2010).

In 1997 the applicant was gifted five plots of land, or shares in them, by her aunt, who died in 1998. In 2008 she was also gifted an additional share of one of the plots of land by her mother. According to the certificates of ownership provided by the Department of Lands and Surveys of the Republic of Cyprus, the applicant is the sole owner of four plots of land and owns a 9/16 share of the fifth plot.

The land lies in the village Koma Tou Yialou (Kumyali) in the “TRNC”. The total area of the land is some 18 dönüm.

In 2007 the applicant instructed a law firm in Nicosia, which duly obtained a valuation report on the land from a Turkish Cypriot chartered surveyor. The valuation report of 3 December 2007 assessed each of the five plots of land and provided valuations for them, which ranged from 500 pounds sterling (GBP) per dönüm to GBP 10,000 per dönüm.

In October 2011 the applicant obtained a further valuation report by a chartered surveyor from the Republic of Cyprus. This report valued the five plots of land, including the economic loss and interest (all calculated for the period between 1974 and 2011), at 2,690,962 euros (EUR) in total.

In February 2017 the applicant obtained a new valuation report from the Land Registration Office of the Republic of Cyprus which assessed the value of the property in question, including economic loss and interest accrued since 1997 (when the applicant became owner of the property) to December 2016, at EUR 2,088,366 in total.

In May 2008 the applicant, through her Turkish Cypriot representatives, filed a claim with the IPC under Law no. 67/2005 (see paragraphs 41-43 below) ‒ supported by an affidavit ‒ claiming restitution of her property and/or compensation at the property’s current market value and damages for loss of use of the land in question. The total compensation sought was GBP 100,000 per dönüm (GBP 1,800,000 or approximately EUR 2,285,000).

In her affidavit the applicant attested that the property in question had been transferred to her after 1974 by her aunt, who had owned it since before 1974. The affidavit also attested that there were no mortgages, liabilities or restrictions on the property in question, that the applicant lived in South Cyprus in a house owned by a Turkish Cypriot, and that she was paying rent to the Republic of Cyprus. The file also contained the applicant’s identity documents (British passport and Cypriot identity card), certificates from the Republic of Cyprus Land Registry and Surveys Department concerning the ownership and legal status of the applicant’s plots of land (indicating no mortgages, liabilities or other restrictions), and a document issued by the relevant Cypriot authority showing that the applicant lived in a house owned by a Turkish Cypriot and had been billed 270 Cypriot pounds (CYP) by way of rent for the period 1 April 2003 to 30 June 2004.

The applicant’s claim was communicated to the “TRNC” Attorney General as provided under Law no. 67/2005 and the relevant IPC Rules (see paragraph 43 below).

On 5 May 2010, the Attorney General’s Office submitted an opinion to the IPC in reply to the applicant’s claim. It relied on an affidavit by the “TRNC” Director of the Land Registry and Surveys Department, who explained that their records showed that one of the registered owners of the property in question was Chrystollou Nicola Stavrinou (the applicant’s aunt), that Maria Nicola Stavrinou (the applicant’s mother) was the owner of part of one of the plots of land, and that the applicant had failed to demonstrate that she was the legal heir of the two registered owners. He also considered that the applicant’s compensation claim was excessive and unfounded.

A directions hearing before the IPC took place on 25 May 2010. The applicant’s representative stated that they had received the Attorney General’s opinion only on the day of the hearing and thus asked for an adjournment in order to prepare their case. The Attorney General’s representative did not object and the hearing was adjourned until 1 June 2010.

At a directions hearing on 1 June 2010 the applicant’s representative undertook to obtain a valuation report and a document showing that the plots of land had been transferred to the applicant by way of donation. The Attorney General’s representative requested that documents showing that the applicant was the legal heir of Chriystolleuo Nicola Stavrou [sic.] should be provided, as well as proof of the amount of rent she was paying for the Turkish Cypriot house where she lived in the South, or alternatively the lease agreement by which the house had been allocated to her. The Attorney General’s representative also undertook to submit a search document from the “TRNC” Land Registry and Surveys Department, and indicated that he reserved his right to submit and request further documents. The hearing was adjourned so that the parties could obtain the relevant documents.

On 3 June 2010 the Attorney General submitted the search document of the “TRNC” Land Registry and Surveys Department relating to the plots included in the applicant’s claim.

On 6 June 2012, through her representative, the applicant asked permission to amend her initial claim. She submitted that she had in the meantime become the sole owner of the plot of which she had previously owned a 5/6 share and that in October 2011 she had obtained a valuation report indicating that the value of her properties was EUR 2,690,962 (see paragraph 8 above).

At a preliminary hearing on 18 June 2012, after the Attorney General’s representative stated that he had no objections with regard to the amendment of the applicant’s claim; the President of the IPC accepted the amendment and instructed the applicant to submit her amended claim and the Attorney General’s Office to submit an opinion in that regard.

On 6 July 2012 the applicant complied with the order and amended her claim, seeking compensation in accordance with the new findings and developments concerning her property title.

On 20 November 2012 the applicant submitted the documents requested by the Attorney General’s representative on 1 June 2010 (see paragraph 18 above). In particular, the applicant submitted certificates issued by the head of the local community (mukhtar) explaining that there were inconsistencies in the spelling of the applicant’s aunt’s name in different documents. The mukhtar explained that the latter had held Cypriot identity document no. 327090 and had been variously known as: Christallou Nikola Stavrinou, Chriystallou Nicola Stavrinon, Christallou Nicola Stavrinou, Christalla Nikola and Chrystallou Nicola, but these were one and the same person. The mukhtar further certified that she had never married and that before her death she had gifted her immovable property to her sister’s daughter, the applicant (Andriani Ioannou, holder of a Cypriot identity card). In support of the mukhtar’s certificates, the applicant submitted her aunt’s identity documents (including a Cypriot identity document). The applicant also submitted documents showing the transfer of title from her aunt to her in respect of the plots of land in question. She also submitted documents showing that she had been allocated a Turkish Cypriot house in the South and had paid CYP 342 by way of rent for the period 1 June 2000 to 31 December 2001 and CYP 270 for the period 1 April 2003 to 30 June 2004.

A preliminary hearing before the IPC scheduled for 10 January 2013 was adjourned due to the absence of the Attorney General’s representative, who could not attend the hearing for family reasons.

At a preliminary hearing on 25 January 2013 the “TRNC” authorities were represented by the Attorney General’s representative and the undersecretary of the Housing Affairs Department. They asked the applicant to submit the birth certificates of her aunt and her mother and a title deed for the property which she now owned in its entirety. The hearing was adjourned to enable the applicant to obtain the documents in question.

On 19 February 2013 the applicant submitted the requested documents, which also included documents confirming that her aunt had never been married.

At a preliminary hearing on 25 April 2013 the “TRNC” representatives asked the applicant to submit certificates from the mukhtar showing that the names Andriani Joannou, Andriani Ioannou and Andriani Georgiou Antoniou all referred to the applicant, and further certificates showing that her aunt had been variously known as Chrystollou Nicola Stavrinou, Chrystolleuo Nicola Stavriou, Chrystolleui Nicolou Stavriou, Nikola Hristallu (Nicola Hrystallou), Hristalla Nicola and Hrystallou Nicola (Nikola), and that her mother had been variously known as Maria Nicola Stavrinou, Maria Stavrinou, Maria Georgiou and Maria Georgios, and that their antecedent Nikolas Stavrinou (Nicolas Stavrinou), had also been known as Nicola Stavrinou and Nicola Stavrinu. The hearing was adjourned to permit the applicant to obtain the requested documents.

On 9 May 2013 the applicant submitted certificates from the mukhtar showing that the aforementioned different names referred to the same individuals, namely the applicant, her mother, her aunt and their antecedent, respectively. The mukhtar’s certificates also identified these individuals on the basis of their identity card numbers. A certificate dated 8 May 2013 indicated that the applicant’s mother was variously known as Maria Nicola (Nicolas, Nikola, Nikolas) Stavrinou and her aunt as Chrystolleui Nicolou Stavriou.

At a preliminary hearing on 24 October 2013, at which the applicant was also present, the “TRNC” representatives argued that the mukhtar’s certificates were incomplete and that the names Maria Nicola (Nicolas, Nikola, Nikolas) Stavrinou, for the applicant’s mother, and Chrystolleui Nicolou Stavriou, for the applicant’s aunt, should be added. The representative further argued that an official document should be submitted showing that the applicant’s aunt had not married and did not have any other heirs. He also requested a document showing that there were no liabilities attaching to the property in question. Upon production of these documents, the Attorney General’s representative would be prepared to settle the case by paying GBP 60,000 to the applicant.

In reply, the applicant’s representative stated that they would obtain the requested documents. However, he pointed out that they had already produced documents showing that the applicant’s aunt had never married and this was anyway apparent from the fact that she had never changed her last name. The applicant’s representative also pointed out that the applicant’s aunt had transferred the property in question to the applicant while she was still alive. He asked for an adjournment in order to consider the Attorney General’s settlement offer.

On 16 January 2014 the applicant’s representative asked that a hearing be held before the IPC.

A further examination of the case before the IPC took place on 1 March 2016. The President and members of the IPC questioned the applicant’s representative with regard to the instructions he had received from the applicant concerning the case. As the applicant was not present and could not be reached at that time to give clear instructions concerning the case, the hearing was adjourned.

On 9 March 2016 the applicant’s Turkish Cypriot representatives informed her representative in the Republic of Cyprus that the fact that an application had been lodged with the Court had caused them upset. They also stated that they would not represent the applicant in further proceedings.

A hearing before the IPC was held on 28 June 2016. The applicant’s Turkish Cypriot representative explained that she had informed the applicant of her wish to withdraw from the case. However, she was unable to provide an official document to that effect and the hearing was therefore adjourned in order for the representative to complete the formalities for withdrawal.

On 19 August 2016 the applicant took over the files from her Turkish Cypriot representatives.

At a hearing on 28 September 2016 the IPC accepted the applicant’s Turkish Cypriot representatives’ withdrawal from the case and decided that the applicant should be contacted directly during the future course of the proceedings. Another hearing was scheduled for 12 October 2016.

On 15 October 2016 the applicant informed the IPC that she had not received the summons to the hearing of 12 October 2016 until 13 October 2016.

A further meeting for the examination of the case, at which the applicant was personally present, was held on 2 March 2017. The “TRNC” representatives argued that the applicant should provide further documents showing the exact dates of birth of her mother and her aunt as well as the respective death certificates. Furthermore, they argued that the applicant could not be considered to be a legal heir of her aunt for the purpose of Law no. 67/2005 as she had obtained the property at issue from her aunt while the latter was still alive. The applicant contended that these arguments were being raised for the first time now and she therefore asked for a formal hearing to be openedThe proceedings before the IPC are still pending.


No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life)

André Potocki;Angelika Nußberger;Erik Møse;Mārtiņš Mits;Nona Tsotsoria;Síofra O’Leary;Gabriele Kucsko-Stadlmayer

The applicant, born in 1987, is the mother of two children, who are half-brothers. Her older son, born in 2008, was taken into permanent public care by the authorities in 2010 and placed with the applicant’s mother and stepfather. Her younger son, X, was born in February 2012. The applicant has been diagnosed as having a hyperkinetic disorder and has had a history with psychiatric treatment.

On 15 June 2012, after receiving notifications from the authorities and a private individual regarding the applicant’s inability to take care of X, the municipal child welfare authorities decided to place him in emergency foster care. On 29 June 2012, that decision was upheld by the County Social Welfare Board (fylkesnemnda for barnevern og sosiale saker).

The emergency placement was followed up by the child welfare authorities with a petition of 6 July 2012 to the Board for a public care order. The authorities requested that X be placed in a foster home and that the applicant be granted supervised access rights. Concerning the question of where he should be placed, the authorities essentially stated that the applicant’s mother and stepfather had previously been approved as foster parents for the applicant’s older son (see paragraph 5 above). However, the ability to cooperate was necessary for those wanting to be foster parents and there had been some conflict between the applicant’s mother and the authorities. Moreover, the applicant’s mother and stepfather were considered to be relatively old (having been born in 1962 and 1955, respectively) to serve as foster parents to a small child, and the applicant’s mother had recently been ill. Furthermore, the applicant’s mother had not made visiting the applicant’s younger son her priority. In these circumstances, it would not be in X’s best interest to be placed with his maternal grandmother and her husband – the applicant’s mother and stepfather.

The applicant objected to the request for an order of public care in respect of her younger son X and maintained that, if such an order be granted, he should be placed with her mother and stepfather. In her view, the child welfare authorities had not properly evaluated that possibility. Her mother’s alleged inability to cooperate had in fact merely been a question of disagreement. The applicant’s mother and stepfather had been aware of the applicant’s difficulties and had helped her. They had also been approved as foster parents to the older son, who had developed well and had positive references from his kindergarten. Their age was not in itself of importance, given that other circumstances were in favour of their acting as his foster parents. To place X with them would be more stable and less stigmatising than an external placement.

On 26 October 2012, after hearing the parties and ten witnesses, the County Social Welfare Board granted the request for an order of public care. It decided that X should remain in the home in which he had already been placed as an emergency measure.

In its reasoning regarding the issue of the choice of foster home, the Board firstly noted that it was accepted that the applicant’s mother and stepfather had been generally approved as foster parents in connection with the care order in respect of the older son in 2010, but that this issue had to be assessed in view of the current situation, taking into account the best interest of the younger son X. On the specific question as to whether it would be in his best interest to be placed with them, the Board stated the following:

“The Board sees that there are many positive sides to a placement within the family network, which justifies that such a placement be considered. The Board considers that the grandmother and her husband in many respects are well suited as foster parents for [X]. [According to] the grandmother, they have been asked whether they [are willing to] adopt [the older son]. Placing [X] with his maternal grandmother and her husband would mean that [the two sons] would grow up together.

As the Board has previously mentioned, [X] may be inherently vulnerable. This is reinforced by the fact that the Board finds that it cannot be ruled out that the boy may have attention-related difficulties. Reference is made to the emergency foster mother’s description of the boy’s restlessness. In addition to the mother’s diagnosis and her considerable difficulties, it has emerged that her brother has also been diagnosed with attention deficit hyperactivity disorder (ADHD) and has considerable difficulties. This means that there is a risk of the boy having the same type of difficulties.

The Child Welfare Service has referred to problems concerning cooperation between the maternal grandmother and agencies such as the Child Welfare Service and health workers. The Child Welfare Service in [the municipality] has also reported difficulties regarding cooperation. On the basis of the statements of the Child Welfare Service and the [younger son’s] health visitor, the Board finds that there have been challenges as regards their cooperation with the grandmother. However, the Board finds no grounds for concluding that these problems have been as serious as they might have initially seemed, and the grandmother’s explanations are to a certain extent plausible. The Board nonetheless finds reason to conclude that there have been some difficulties regarding cooperation.

The grandmother has seen that [the applicant] has not been capable of caring for [the older son], and she has also been concerned about [the applicant]’s ability to look after [X]. In her statement to the Board, she still seemed to be uncertain about [the applicant]’s ability to care for the boy. She nevertheless largely left [the applicant] and the child to themselves shortly after the birth while they were staying with her. The Board further remarks that the grandmother had not arranged with the Child Welfare Service in [the municipality] that [the applicant] and [X] were to move in with her and [the applicant’s older son]. [The applicant] moved out of her mother’s house, together with [X] after a short period, even though the grandmother realises that [the applicant] faces challenges as regards running a home. The Board has noted that the grandmother has not attended the contact sessions and thus not seen [X] since he was placed in care.

The grandmother and her husband are relatively old to be foster parents to such young children. [The applicant]’s mother was born in 1962 and her husband in 1955. The Board considers it likely that [X]’s placement in care will be long-term. Although age alone is not decisive in relation to the choice of foster home, it is a factor in the assessment. The maternal grandmother and her husband already have a foster child who is four years old, and it will require a lot of energy on their part to have another foster child ... who is also younger than the one they [already] have. Taking care of [X] could also affect the situation of [the older son], who they already have care of and must look after.

The Board has found that its doubts about placing [X] with his grandmother and her husband are so serious that the disadvantages outweigh the advantages. The reason is the uncertainty relating to the boy’s vulnerability and the strain that another foster child would entail, regardless of whether or not this child has special needs, the grandmother’s and her husband’s age and certain difficulties regarding cooperation.”

On the basis of the above, the Board arrived at the conclusion that X should not be placed with his grandmother and her husband. On 27 January 2013 X was transferred from the emergency home to a foster home.

The applicant appealed to the local City Court (tingrett), which held an oral hearing from 4 until 6 June 2013. In accordance with section 36-4 of the Dispute Act (see paragraph 22 below), the court’s bench comprised one professional judge, one psychologist and one lay person. It heard fourteen witnesses in addition to the parties. The applicant was present, was represented by counsel, and gave testimony.

In its judgment of 22 July 2013, the City Court upheld the County Social Welfare Board’s decision in full.

With respect to the applicant’s caring skills and X’s care needs, the City Court reiterated the findings of the County Social Welfare Board and the court-appointed expert. It concluded that there were beyond doubt serious deficiencies in the applicant’s daily care of and personal contact with X, and that it was necessary to place him in public care.

Turning next to the question of whether he could be placed with the applicant’s mother and stepfather, the City Court observed that they had been approved as foster parents when the applicant’s older son had been placed with them in 2010. It further noted that there were advantages to a child moving to a foster home comprising family members. X would in that case be placed within the family network. It had moreover been documented that the applicant’s mother and stepfather might well be suitable foster parents for him. Furthermore, it would be an advantage that the two sons would be allowed to grow up together.

The City Court nonetheless found that, in this case, there were no grounds for deciding that the applicant’s younger son should be placed in foster care with his maternal grandmother and her husband. In addition to referring to the Board’s assessment (see paragraph 10 above), the court quoted excerpts from the court-appointed expert, T.B., a specialist in psychology.

The expert did not recommend the placement of X with the applicant’s mother and stepfather. In the report she stated, inter alia:

“Several factors have emerged that may have a bearing on the assessment of whether [X]’s grandparents can be his foster parents:

Firstly, the grandparents’ age has been taken into account in the assessment. The undersigned does not see this as a decisive factor.

Furthermore, it has been emphasised that [X]’s step-grandfather has himself mentioned that he is getting older, and that this may be perceived as an expression of doubt on his part. This has not had a decisive bearing on the undersigned’s assessment, either. The child’s step-grandfather comes across as an honest, responsible and reflective man who would be an excellent foster father for [X], even though he expresses some doubts himself.

In addition, it has also been suggested that the Child Welfare Service has had difficulties in cooperating with the foster mother in respect of [the applicant’s older son]. To the undersigned, these so-called ‘cooperation difficulties’ seem to be nothing more than disagreements/challenges that the parties are capable of handling and working out. That is how the challenges are described by both the representative of the Child Welfare Service in [the municipality] and the grandmother herself. It must also be added that [the applicant]’s mother and stepfather cooperated with the undersigned in an impeccable manner during the investigation. They have had many difficult challenges over the years, and it would almost be strange if there had been no ‘friction’ during all this time. This has therefore not had any bearing on the undersigned’s assessment of the question of [X]’s foster home placement.

What has been important to the undersigned’s assessment of this question, however, is, first of all, that [the applicant] has very different emotional ties to her two sons ..., in the sense that she seems to have renounced her role as mother of the [older son], while she must still be expected to make an effort to have as much contact as possible with [X]. This will necessarily be a problem for both boys if they are to live in the same foster home.

Furthermore, there is good reason to believe that, if [X] is placed in foster care with [the applicant]’s parents, this situation will ... represent an opportunity for the contact between mother and child to constantly increase in scope, and thus be a hindrance to [X] in his development of a good attachment to his foster home. For the undersigned, this concern is based, not least, on the fact that [X]’s grandmother has clearly expressed to the undersigned that she primarily wants to be a mother to [the applicant].

However, the argument in favour of letting [X]’s grandmother and step-grandfather be his foster parents is of course the fact that [he] will then get to grow up together with his (half) brother. The undersigned is nonetheless of the view that this cannot carry more weight than the concerns mentioned above.

This means that placing [X] in foster care with his grandparents is not recommended.”

Expert T.B. had upheld these assessments in her report during the main hearing, but also stated that there were “dilemmas” if the applicant’s mother and stepfather were to be chosen as foster parents. The City Court shared the expert’s concerns. Moreover, it pointed out that the two children had different needs and challenges. Although the older brother, according to the information received, was happy in his foster home with the applicant’s mother and stepfather, X, despite his young age, had experienced two broken relationships – firstly with his biological mother and then with his emergency foster mother. He had now formed an attachment with his new foster mother after he had moved into his latest foster home in January 2013. There would be a risk of “contact injury” (kontaktskade) – that is to say a serious impairment to his ability to form attachments – if he were to experience another broken relationship. From the foster mother’s testimony it was clear that he was developing well in the foster home and that he was happy and thriving. The City Court moreover emphasised the challenges associated with having two small boys of pre-school age living with people of the age of the applicant’s mother and stepfather. In addition, there was the issue of the applicant’s very different respective emotional relationships with the two boys, which also entailed special challenges, particularly if X were to be placed in foster care in the same home as that of his older brother. Overall, the City Court agreed with the County Social Welfare Board and the court-appointed expert that the applicant’s mother and stepfather should not be the foster parents of the applicant’s younger son.

The applicant lodged an appeal against the City Court’s judgment in so far as it concerned the choice of foster home. The High Court (lagmannsrett) refused leave to appeal on 15 October 2013, and on 3 December 2013 the Supreme Court’s Appeals Leave Committee (Høyesteretts ankeutvalg) rejected the applicant’s appeal against the High Court’s decision.


Ineta Ziemele;Krzysztof Wojtyczek;Ledi Bianku;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney

The applicants, Mr T. and his wife and two minor children, are Russian nationals who were born in 1965, 1971, 1997 and 2002 respectively. The President granted the applicants’ request for their identity not to be disclosed to the public (Rule 47 § 4). They were represented before the Court by Ms Kirsi Hytinantti, a lawyer practising in Helsinki.

The Finnish Government (“the Government”) were represented by their Agent, Mr Arto Kosonen of the Ministry for Foreign Affairs.

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

The applicants are a family from the Ingushetia region of Russia. They belong to the Ingush ethnic minority and are Muslims by religion. The first applicant, the father of the family, worked as a taxi driver and also had a car repair shop. The couple have not been politically, socially or religiously active. However, in 2007 they started to have problems. The first applicant claims that for one week in July-August 2007, he worked as a driver for two men who were apparently involved in insurgency acts. One of the men was killed in 2008 and the other managed to escape the country.

At the beginning of 2009 the first applicant claims that masked men in army clothes came to his car repair shop to look for his client, whose car was in the shop. As the client was not there, the men took him instead and kept him in some sort of cellar for three days and ill-treated him. He was questioned about his client and about the two men he had driven around in 2007. The applicant was threatened with charges for having participated in armed attacks He was allegedly asked also to pay 600,000 roubles in order not to be charged. He paid half of the sum when he was released. After that his wife and children went to live with other relatives. The first applicant was in hiding for the rest of the year and escaped in January 2010 to Finland through Moscow and St. Petersburg, with a tourist group holding a Schengen visa.

While the rest of the family stayed with relatives, the armed men came to search for information about the first applicant from their neighbours and at the house of the second applicant’s mother. They did not know where the first applicant had gone, so they fled to Poland. Through other asylum seekers they obtained information that the first applicant was in Finland and they travelled there to seek asylum.

The second applicant submitted to the Finnish authorities two faxed documents in Russian with their Finnish translations. Those documents were addressed to the first applicant in January and February 2010 by the investigative department of the Ministry of the Interior and he was summoned for questioning as a crime suspect. The crime of which he was suspected was not, however, mentioned in the documents. The first applicant claims that he does not know why he is wanted, but claims that sometimes ethnicity and religion suffice to arouse the suspicion of the security authorities in Ingushetia.

The first and the second applicants both suffer from somewhat severe post-traumatic stress disorder and depression. The first applicant has also been suffering from headaches, insomnia and prostate problems which have been treated at the reception centre. Only in March 2013 he sought help for his psychological problems. He was subsequently examined and treated at the Centre for Torture Survivors (Kidutettujen kuntoutuskeskus, Centret för rehabilitering av tortyroffer) in Finland. The Deputy Chief Physician of the Centre recommended both private and group therapy together with medication for his trauma. No physical signs of ill-treatment were, however, reported. The second applicant has had symptoms of amnesia attacks and uncontrollable behaviour. She has been treated since 2012 and referred to the Centre for Torture Survivors in Finland for further examination and treatment.

On 9 September 2013 the applicants submitted information to the Court that the third applicant, the son of the family born in 1997, had gone missing on 7 September 2013. The third applicant was found on 18 September 2013 and subsequently reunited with the other applicants. On 23 September 2013 the second applicant gave birth to a third child who is suffering from a kidney pelvis extension.

The first applicant arrived in Finland on 11 January 2010 and immediately sought asylum. On 16 March 2011 the Finnish Immigration Service (Maahanmuuttovirasto, Migrationsverket) rejected the application, considering it not probable that the Russian authorities would be especially interested in the applicant as he had not been politically, socially or religiously active. It furthermore considered that, as the security situation was indeed relatively poor in Ingushetia, the applicant could in any event always relocate internally inside the Russian Federation.

The second, third and fourth applicants had sought asylum in Poland on 12 June 2010 but their applications were rejected on 29 April 2011 and their appeal was rejected on 22 July 2011. They arrived in Finland on 15 August 2011 and sought asylum on 18 August 2011.

Meanwhile, the first applicant had appealed against the negative asylum decision. On 16 November 2011 the Administrative Court (hallinto-oikeus, förvaltningsdomstolen) referred the first applicant’s case back to the Immigration Service in order for them to consider the applications of the whole family together.

On 24 April 2012 the Immigration Service rejected the asylum applications of the whole family and ordered their removal to Russia. It considered firstly that in the first applicant’s first asylum application he mentioned the problems in Ingushetia only in very general and vague terms and without specifying any personal threats. The story became personal only in the first asylum interview. Also the authenticity of the copies of “summonses” submitted by the applicant was impossible to verify. Moreover, the Immigration Service went on to consider that, as the applicants had not been in any way active or profiled persons, it was unlikely that the Russian authorities would be interested in them if returned to Russia. The applicants could in any event relocate internally.

By letter dated 22 June 2012 the applicants appealed, requesting that the decision of the Immigration Service be quashed and that they be granted asylum, or alternatively, secondary protection or a residence permit due to individual humanitarian circumstances, taking into consideration also the best interest of the children and the unreasonableness of the expulsion. They also requested that an oral hearing be held.

On 14 January 2013 the Administrative Court rejected the applicants’ appeal and refused their request for an oral hearing as unnecessary. It considered, like the Immigration Service, that the authenticity of the faxed documents named “summons” was impossible to verify and they did not appear exactly credible. It was impossible to draw any conclusions from those summonses regarding the events about which the applicants were complaining. On the other hand, there were no reasons to doubt the applicants’ story or their credibility overall. However, the sole fact that the first applicant had been a driver for some insurgents in 2007 did not seem the sort of activity which would arouse the interest of the Russian authorities. The acts directed against him in 2009 were aimed at obtaining information from him about the others, but he was not personally suspected of any illegal activism himself. As the applicants had not been otherwise active and had no other contact with the insurgents, the Administrative Court concluded that it was unlikely that the Russian authorities would persecute the applicants if returned to Russia. It furthermore considered that the security situation was indeed unstable in the region but that it alone did not give rise to a need for international protection.

By letter dated 31 January 2013 the applicants appealed to the Supreme Administrative Court (korkein hallinto-oikeus, högsta förvaltningsdomstolen), requesting also a stay on the execution of their expulsion order, which was not granted.

On 4 December 2013 the Supreme Administrative Court refused the applicants leave to appeal.

According to Article 9, paragraph 4, of the Constitution of Finland (Suomen perustuslaki, Finlands grundlag; Act no. 731/1999), the right of foreigners to enter Finland and to remain in the country is regulated by an Act. A foreigner shall not be deported, extradited or returned to another country, if in consequence he or she is in danger of a death sentence, torture or other treatment violating human dignity.

According to section 87, subsection 1, of the Aliens Act (ulkomaalaislaki, utlänningslagen; Act no. 301/2004), aliens residing in the country are granted asylum if they reside outside their home country or country of permanent residence owing to a well-founded fear of being persecuted for reasons of ethnic origin, religion, nationality, membership of a particular social group or political opinion and if they, because of this fear, are unwilling to avail themselves of the protection of that country.

Section 88, subsection 1, of the Act (as amended by Act no. 323/2009) provides that an alien residing in Finland is issued with a residence permit on grounds of subsidiary protection if the requirements for granting asylum under section 87 are not met, but substantial grounds have been shown for believing that the person, if returned to his or her country of origin or country of former habitual residence, would face a real risk of being subjected to serious harm, and he or she is unable, or owing to such risk, unwilling to avail himself or herself of the protection of that country. Serious harm means: 1) the death penalty or execution; 2) torture or other inhuman or degrading treatment or punishment; or 3) serious and individual threat as a result of indiscriminate violence in situations of international or internal armed conflicts.

Under section 88a of the Act (as amended by Act no. 323/2009), an alien residing in Finland is issued with a residence permit on the basis of humanitarian protection, if there are no grounds under section 87 or 88 for granting asylum or providing subsidiary protection, but he or she cannot return to his or her country of origin or country of former habitual residence as a result of an environmental catastrophe or a bad security situation which may be due to an international or internal armed conflict or a poor human rights situation.

According to section 88b of the Act (as amended by Act no. 323/2009), the well-founded fear of being persecuted referred to in section 87b or the real risk of being subjected to serious harm referred to in section 88 may be based on incidents after the applicant’s departure from his or her home country or country of permanent residence or on acts that the applicant has participated in since his or her departure.

Section 98, subsection 2, of the Act (as amended by Act no. 432/2009) provides that the requirements for issuing a residence permit are assessed individually for each applicant by taking account of the applicant’s statements on his or her circumstances in the State in question and of real time information on the circumstances in that State obtained from various sources. After obtaining the statement, the authorities shall decide on the matter in favour of the applicant on the basis of his or her statement if the applicant has contributed to the investigation of the matter as far as possible, and if the authorities are convinced of the veracity of the application with regard to the applicant’s need for international protection.

According to section 147 of the Act, no one may be refused entry and sent back or deported to an area where he or she could be subject to the death penalty, torture, persecution or other treatment violating human dignity or from where he or she could be sent to such an area.

Section 147b of the Aliens Act (as amended by Act no. 1214/2013) incorporates into the Finnish legal system the Council Decision 2004/573/EC of 29 April 2004 on the organisation of joint flights for removals from the territory of two or more member States, of third-country nationals who are subjects of individual removal orders. The annex to the Decision contains common guidelines on security provisions for joint removals by air including, inter alia, an obligation for the member States to ensure that the returnees for whom they are responsible are in an appropriate state of health, which allows legally and factually for safe removal by air.

According to the U.S. State Department’s Country Report on Russia for 2013:

“The government failed to take adequate steps to prosecute or punish most officials who committed abuses, resulting in a climate of impunity. Rule of law was particularly deficient in the North Caucasus, where conflict among government forces, insurgents, Islamist militants, and criminal forces led to numerous human rights abuses, including killings, torture, physical abuse, and politically motivated abductions.”

The World Health Organisation’s (WHO) Mental Health Atlas from 2005 provides the following information on the mental health care situation in the Russian Federation:

“Mental health is a part of primary health care system. Actual treatment of severe mental disorders is not available at the primary level. The practice of recognition and treatment of depression in primary care is developing in several regions. ... There are community care facilities for patients with mental disorders. A social rehabilitation system including workshops, rehabilitation units in industrial firms and residential homes (for about 125 000 persons) exists. Day care facilities are available for almost 15 000 persons. Home care is also provided in some cases.

The system of Russian Ministry of Health consists of 278 mental hospitals, 164 psycho-neurological outpatient clinics (dispensaries) that include day-hospitals as separate wards in their structure (each dispensary provides sectorised coverage to a population of approximately 25 000 people); 2010 psychoneurological consulting rooms in rural areas; 1117 psychotherapeutic rooms, mostly in primary care facilities. There are also beds in 442 hostels, nursing homes and ‘internats’ under the authority of the Ministry of Social Protection.

The country has specific programmes for mental health for refugees, disaster affected population and elderly. Programmes on refugees and disaster victims are carried out by the Ministry of Emergency Situations (EMERCOM). Elderly population are looked after by the Ministry of Social Protection.

The following therapeutic drugs are generally available at the primary health care level of the country: carbamazepine, ethosuximide, phenobarbital, phenytoin sodium, sodium valproate, amitriptyline, chlorpromazine, diazepam, fluphenazine, haloperidol, lithium, biperiden, carbidopa, levodopa. The Ministry of Health and Social Assistance approved the list of mentally ill who would receive free medication in 1993, the funds for which were to be allocated by local institutions.”


Violation of Article 14+P1-1-1 - Prohibition of discrimination (Article 14 - Discrimination) (Article 1 para. 1 of Protocol No. 1 - Possessions;Article 1 of Protocol No. 1 - Protection of property);Pecuniary and non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Pecuniary damage;Just satisfaction)

András Sajó;Krzysztof Wojtyczek;Nona Tsotsoria;Paulo Pinto De Albuquerque;Vincent A. De Gaetano

The applicant was born in 1953 and lives in Budapest.

The applicant, already in receipt of an old-age pension, took up employment with Budapest XIII District Municipality as a civil servant, as of 1 July 2012.

On 1 January 2013 an amendment to the 1997 Pension Act entered into force, according to which the disbursement of those old-age pensions whose beneficiaries are simultaneously employed within certain categories of the public sector will be suspended for the duration of their employment. No such restriction was put in place in respect of those who are in receipt of an old-age pension while being employed within the private sector.

In application of this new rule, on 2 July 2013 the disbursement of the applicant’s pension was suspended. The applicant’s administrative appeal to the National Pension Board was to no avail.


Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for correspondence;Respect for private life);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - finding of violation sufficient (Article 41 - Non-pecuniary damage;Just satisfaction)

András Sajó;André Potocki;Angelika Nußberger;Armen Harutyunyan;Dmitry Dedov;Egidijus Kūris;Guido Raimondi;Iulia Motoc;Jon Fridrik Kjølbro;Ledi Bianku;Luis López Guerra;Marko Bošnjak;Mārtiņš Mits;Mirjana Lazarova Trajkovska;Nebojša Vučinić;Nona Tsotsoria;Paul Lemmens;Paulo Pinto De Albuquerque;Stéphanie Mourou-Vikström;Vincent A. De Gaetano;Georges Ravarani

The applicant was born in 1979 and lives in Bucharest.

From 1 August 2004 to 6 August 2007 he was employed in the Bucharest office of S., a Romanian private company (“the employer”), as a sales engineer. At his employer’s request, for the purpose of responding to customers’ enquiries, he created an instant messaging account using Yahoo Messenger, an online chat service offering real-time text transmission over the internet. He already had another personal Yahoo Messenger account.

The employer’s internal regulations prohibited the use of company resources by employees in the following terms:

“Any disturbance of order and discipline on company premises shall be strictly forbidden, in particular:

– ... personal use of computers, photocopiers, telephones or telex or fax machines.”

The regulations did not contain any reference to the possibility for the employer to monitor employees’ communications.

It appears from documents submitted by the Government that the applicant had been informed of the employer’s internal regulations and had signed a copy of them on 20 December 2006 after acquainting himself with their contents.

On 3 July 2007 the Bucharest office received and circulated among all its employees an information notice that had been drawn up and sent by the Cluj head office on 26 June 2007. The employer asked employees to acquaint themselves with the notice and to sign a copy of it. The relevant parts of the notice read as follows:

“1. ... Time spent in the company must be quality time for everyone! Come to work to deal with company and professional matters, and not your own personal problems! Don’t spend your time using the internet, the phone or the fax machine for matters unconnected to work or your duties. This is what [elementary education], common sense and the law dictate! The employer has a duty to supervise and monitor employees’ work and to take punitive measures against anyone at fault!

Your misconduct will be carefully monitored and punished!

Because of repeated [disciplinary] offences vis-à-vis her superior, [as well as] her private use of the internet, the telephone and the photocopier, her negligence and her failure to perform her duties, Ms B.A. was dismissed on disciplinary grounds! Take a lesson from her bad example! Don’t make the same mistakes!

Have a careful read of the collective labour agreement, the company’s internal regulations, your job description and the employment contract you have signed! These are the basis of our collaboration! Between employer and employee! ...”

It also appears from the documents submitted by the Government, including the employer’s attendance register, that the applicant acquainted himself with the notice and signed it between 3 and 13 July 2007.

In addition, it transpires that from 5 to 13 July 2007 the employer recorded the applicant’s Yahoo Messenger communications in real time.

On 13 July 2007 at 4.30 p.m. the applicant was summoned by his employer to give an explanation. In the relevant notice he was informed that his Yahoo Messenger communications had been monitored and that there was evidence that he had used the internet for personal purposes, in breach of the internal regulations. Charts were attached indicating that his internet activity was greater than that of his colleagues. At that stage, he was not informed whether the monitoring of his communications had also concerned their content. The notice was worded as follows:

“Please explain why you are using company resources (internet connection, Messenger) for personal purposes during working hours, as shown by the attached charts.”

On the same day, the applicant informed the employer in writing that he had used Yahoo Messenger for work-related purposes only.

At 5.20 p.m. the employer again summoned him to give an explanation in a notice worded as follows:

“Please explain why the entire correspondence you exchanged between 5 to 12 July 2007 using the S. Bucharest [internet] site ID had a private purpose, as shown by the attached forty-five pages.”

The forty-five pages mentioned in the notice consisted of a transcript of the messages which the applicant had exchanged with his brother and his fiancée during the period when he had been monitored; the messages related to personal matters and some were of an intimate nature. The transcript also included five messages that the applicant had exchanged with his fiancée using his personal Yahoo Messenger account; these messages did not contain any intimate information.

Also on 13 July, the applicant informed the employer in writing that in his view it had committed a criminal offence, namely breaching the secrecy of correspondence.

On 1 August 2007 the employer terminated the applicant’s contract of employment.

The applicant challenged his dismissal in an application to the Bucharest County Court (“the County Court”). He asked the court, firstly, to set aside the dismissal; secondly, to order his employer to pay him the amounts he was owed in respect of wages and any other entitlements and to reinstate him in his post; and thirdly, to order the employer to pay him 100,000 Romanian lei (approximately 30,000 euros) in damages for the harm resulting from the manner of his dismissal, and to reimburse his costs and expenses.

As to the merits, relying on Copland v. the United Kingdom (no. 62617/00, §§ 43-44, ECHR 2007I), he argued that an employee’s telephone and email communications from the workplace were covered by the notions of “private life” and “correspondence” and were therefore protected by Article 8 of the Convention. He also submitted that the decision to dismiss him was unlawful and that by monitoring his communications and accessing their contents his employer had infringed criminal law.

With regard specifically to the harm he claimed to have suffered, the applicant noted the manner of his dismissal and alleged that he had been subjected to harassment by his employer through the monitoring of his communications and the disclosure of their contents “to colleagues who were involved in one way or another in the dismissal procedure”.

The applicant submitted evidence including a full copy of the transcript of his Yahoo Messenger communications and a copy of the information notice (see paragraph 15 above).

In a judgment of 7 December 2007 the County Court rejected the applicant’s application and confirmed that his dismissal had been lawful. The relevant parts of the judgment read as follows:

“The procedure for conducting a disciplinary investigation is expressly regulated by the provisions of Article 267 of the Labour Code.

In the instant case it has been shown, through the written documents included in the file, that the employer conducted the disciplinary investigation in respect of the applicant by twice summoning him in writing to explain himself [and] specifying the subject, date, time and place of the interview, and that the applicant had the opportunity to submit arguments in his defence regarding his alleged acts, as is clear from the two explanatory notices included in the file (see copies on sheets 89 and 91).

The court takes the view that the monitoring of the internet conversations in which the employee took part using the Yahoo Messenger software on the company’s computer during working hours – regardless of whether or not the employer’s actions were illegal in terms of criminal law – cannot undermine the validity of the disciplinary proceedings in the instant case.

The fact that the provisions containing the requirement to interview the suspect (învinuitul) in a case of alleged misconduct and to examine the arguments submitted in that person’s defence prior to the decision on a sanction are couched in imperative terms highlights the legislature’s intention to make respect for the rights of the defence a prerequisite for the validity of the decision on the sanction.

In the present case, since the employee maintained during the disciplinary investigation that he had not used Yahoo Messenger for personal purposes but in order to advise customers on the products being sold by his employer, the court takes the view that an inspection of the content of the [applicant’s] conversations was the only way in which the employer could ascertain the validity of his arguments.

The employer’s right to monitor (monitoriza) employees in the workplace, [particularly] as regards their use of company computers, forms part of the broader right, governed by the provisions of Article 40 (d) of the Labour Code, to supervise how employees perform their professional tasks.

Given that it has been shown that the employees’ attention had been drawn to the fact that, shortly before the applicant’s disciplinary sanction, another employee had been dismissed for using the internet, the telephone and the photocopier for personal purposes, and that the employees had been warned that their activities were being monitored (see notice no. 2316 of 3 July 2007, which the applicant had signed [after] acquainting himself with it – see copy on sheet 64), the employer cannot be accused of showing a lack of transparency and of failing to give its employees a clear warning that it was monitoring their computer use.

Internet access in the workplace is above all a tool made available to employees by the employer for professional use, and the employer indisputably has the power, by virtue of its right to supervise its employees’ activities, to monitor personal internet use.

Such checks by the employer are made necessary by, for example, the risk that through their internet use, employees might damage the company’s IT systems, carry out illegal activities in cyberspace for which the company could incur liability, or disclose the company’s trade secrets.

The court considers that the acts committed by the applicant constitute a disciplinary offence within the meaning of Article 263 § 2 of the Labour Code since they amount to a culpable breach of the provisions of Article 50 of S.’s internal regulations ..., which prohibit the use of computers for personal purposes.

The aforementioned acts are deemed by the internal regulations to constitute serious misconduct, the penalty for which, in accordance with Article 73 of the same internal regulations, [is] termination of the contract of employment on disciplinary grounds.

Having regard to the factual and legal arguments set out above, the court considers that the decision complained of is well-founded and lawful, and dismisses the application as unfounded.”

The applicant appealed to the Bucharest Court of Appeal (“the Court of Appeal”). He repeated the arguments he had submitted before the first-instance court and contended in addition that that court had not struck a fair balance between the interests at stake, unjustly prioritising the employer’s interest in enjoying discretion to control its employees’ time and resources. He further argued that neither the internal regulations nor the information notice had contained any indication that the employer could monitor employees’ communications.

The Court of Appeal dismissed the applicant’s appeal in a judgment of 17 June 2008, the relevant parts of which read:

“The first-instance court has rightly concluded that the internet is a tool made available to employees by the employer for professional use, and that the employer is entitled to set rules for the use of this tool, by laying down prohibitions and provisions which employees must observe when using the internet in the workplace; it is clear that personal use may be refused, and the employees in the present case were duly informed of this in a notice issued on 26 June 2007 in accordance with the provisions of the internal regulations, in which they were instructed to observe working hours, to be present at the workplace [during those hours and] to make effective use of working time.

In conclusion, an employer who has made an investment is entitled, in exercising the rights enshrined in Article 40 § 1 of the Labour Code, to monitor internet use in the workplace, and an employee who breaches the employer’s rules on personal internet use is committing a disciplinary offence that may give rise to a sanction, including the most serious one.

There is undoubtedly a conflict between the employer’s right to engage in monitoring and the employees’ right to protection of their privacy. This conflict has been settled at European Union level through the adoption of Directive no. 95/46/EC, which has laid down a number of principles governing the monitoring of internet and email use in the workplace, including the following in particular.

- Principle of necessity: monitoring must be necessary to achieve a certain aim.

- Principle of purpose specification: data must be collected for specified, explicit and legitimate purposes.

- Principle of transparency: the employer must provide employees with full information about monitoring operations.

- Principle of legitimacy: data-processing operations may only take place for a legitimate purpose.

- Principle of proportionality: personal data being monitored must be relevant and adequate in relation to the specified purpose.

- Principle of security: the employer is required to take all possible security measures to ensure that the data collected are not accessible to third parties.

In view of the fact that the employer has the right and the duty to ensure the smooth running of the company and, to that end, [is entitled] to supervise how its employees perform their professional tasks, and the fact [that it] enjoys disciplinary powers which it may legitimately use and which [authorised it in the present case] to monitor and transcribe the communications on Yahoo Messenger which the employee denied having exchanged for personal purposes, after he and his colleagues had been warned that company resources should not be used for such purposes, it cannot be maintained that this legitimate aim could have been achieved by any other means than by breaching the secrecy of his correspondence, or that a fair balance was not struck between the need to protect [the employee’s] privacy and the employer’s right to supervise the operation of its business.

Accordingly, having regard to the considerations set out above, the court finds that the decision of the first-instance court is lawful and well-founded and that the appeal is unfounded; it must therefore be dismissed, in accordance with the provisions of Article 312 § 1 of the C[ode of] Civ[il] Pr[ocedure].”

In the meantime, on 18 September 2007 the applicant had lodged a criminal complaint against the statutory representatives of S., alleging a breach of the secrecy of correspondence. On 9 May 2012 the Directorate for Investigating Organised Crime and Terrorism (DIICOT) of the prosecutor’s office attached to the Supreme Court of Cassation and Justice ruled that there was no case to answer, on the grounds that the company was the owner of the computer system and the internet connection and could therefore monitor its employees’ internet activity and use the information stored on the server, and in view of the prohibition on personal use of the IT systems, as a result of which the monitoring had been foreseeable. The applicant did not avail himself of the opportunity provided for by the applicable procedural rules to challenge the prosecuting authorities’ decision in the domestic courts.


Remainder inadmissible (Art. 35) Admissibility criteria;(Art. 35-1) Six-month period;(Art. 35-3-a) Manifestly ill-founded;No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 5 - Right to liberty and security (Article 5-3 - Reasonableness of pre-trial detention);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

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

The applicant was born in 1987 and lives in Moscow.

The background facts relating to the planning, conduct and dispersal of the public event at Bolotnaya Square are set out in more detail in Frumkin v. Russia (no. 74568/12, §§ 7-65, 5 January 2016), and Yaroslav Belousov v. Russia (nos. 2653/13 and 60980/14, §§ 7-33, 4 October 2016). The parties’ submissions on the circumstances directly relevant to the present case are set out below.

On 6 May 2012 a public demonstration entitled the “March of Millions” was held in central Moscow to protest against allegedly rigged presidential elections. The event had been approved by the city authorities in the form of a march followed by a meeting at Bolotnaya Square, which was supposed to end at 7.30 p.m. The march was peaceful and held without any disruptions, but when the marchers arrived at Bolotnaya Square it turned out that barriers installed by the police had narrowed the entrance to the meeting venue, allegedly restricting the space allocated for the meeting. To control the crowd the police cordon forced the protestors to remain within the barriers. There were numerous clashes between the police and protesters. At 5.30 p.m. the police ordered that the meeting finish early and began to disperse the participants. It took them about two hours to clear the protestors from the square.

On the same day the Moscow city department of the Investigative Committee of the Russian Federation opened criminal proceedings to investigate suspected acts of mass disorder and violence against the police (Articles 212 § 2 and 318 § 1 of the Criminal Code). On 18 May 2012 the file was transferred to the headquarters of the Investigative Committee for further investigation. On 28 May 2012 an investigation was also launched into the criminal offence of organising acts of mass disorder (Article 212 § 1 of the Criminal Code). The two criminal cases were joined on the same day.

The applicant took part in the demonstration of 6 May 2012 at Bolotnaya Square. He was arrested on the date indicated below and charged with participation in mass disorder. The applicant was detained and tried on those charges but subsequently exempted from liability under the Amnesty Act.

The applicant is a political activist and a member of an opposition movement called Levyy Front. On 6 May 2012 he arrived at Bolotnaya Square to participate in the demonstration and, according to him, did not take part in any disorder or clashes with the police. After the events in question the applicant continued to live at his usual address and pursue his customary activities, including taking part in authorised public events.

On 10 June 2012 the applicant was detained on suspicion of participation in acts of mass disorder and committing violent acts against the police on 6 May 2012. On 11 June 2012 the Basmannyy District Court of Moscow held a hearing on the investigating authorities’ request to detain the applicant pending the completion of the criminal investigation. In view of the need to provide additional evidence in support of the request, the court adjourned the hearing and authorised the applicant’s detention for seventytwo hours.

On 14 June 2012 the Basmannyy District Court ordered the applicant’s pre-trial detention until 10 August 2012. It referred to the gravity of the charges and stated that the applicant’s state of health did not preclude his being detained. The District Court concluded that the applicant, faced with the risk of a prison term, might obstruct the proper administration of justice or abscond.

On 19 June 2012 charges were brought against the applicant under Article 212 § 2 (participation in mass disorder accompanied by violence) of the Criminal Code. He was accused, in particular, of having thrown an unidentified solid object towards the police.

On 11 July 2012 the Moscow City Court upheld the detention order of 14 June 2012.

On 8 August 2012 the Basmannyy District Court examined a request for an extension of the applicant’s pre-trial detention. The applicant requested to be released, arguing that all the necessary investigative acts had already been carried out. He presented personal guarantees from two State Duma deputies in support of an undertaking by him to appear before the investigating authorities and the courts for examination of his case. The applicant also requested his release on health grounds and submitted a medical document from 2004 which showed that he had a number of eye conditions.

On the same day the District Court granted an extension of the applicant’s pre-trial detention until 6 November 2012. It relied on the reasons for and the nature of the crime which had been committed, which gave sufficient grounds to presume that the applicant might reoffend, influence and threaten witnesses and other participants of the criminal proceedings, destroy evidence or otherwise obstruct the proper administration of justice. In addition, the applicant had negative reports related to his place of residence. In particular, he had no permanent employment or family and had been repeatedly brought to administrative responsibility. His state of health was satisfactory and did not warrant his release. Lastly, the court held that in view of the above circumstances the custodial measure could not be replaced by a more lenient preventive measure.

On 12 September 2012 the Moscow City Court upheld the extension order of 8 August 2012.

On 29 October 2012 the Basmannyy District Court examined a new request for an extension of the applicant’s pre-trial detention. The applicant argued that his detention was detrimental to his health, in particular his eyesight. He referred again to the personal guarantees of two State Duma deputies in support of his request for a milder preventive measure. On the same day the court extended the applicant’s detention until 6 March 2013. The court referred to the gravity of the charges and the nature of the offence imputed to the applicant, along with information about his personality, namely that he had no permanent employment or regular source of income and had negative reports from his place of residence.

On 7 November 2012 the charges against the applicant were updated. The classification of the offence remained unchanged. According to the new indictment, between 4 p.m. and 8 p.m. on 6 May 2012 at Bolotnaya Square unidentified persons had called those present to move outside the agreed meeting area and to disobey lawful police orders, leading to mass disorder accompanied by violence against public officials. Between 5 p.m. and 10 p.m. that day the applicant had taken part in acts of mass disorder, in particular, he had repeatedly shouted anti-government slogans. During that period of time the participants of the mass disorder threw pieces of tarmac, stones, sticks and other objects at the police, which hit them on various parts of their body. The applicant, no later than at 8 p.m., found a flagpole and threw it at an unidentified police officer, hitting him in the chest.

On 26 November 2012 the Moscow City Court upheld the extension order of 29 October 2012.

On 1 March 2013 the Basmannyy District Court granted a new extension of the applicant’s detention, until 10 June 2013. It stressed the complexity of the case, reiterated the grounds given in the previous orders and noted that the circumstances that had justified the detention order had not changed. The applicant asked to be released on bail and presented personal guarantees from a wellknown writer and two directors of prominent NGOs, but the court considered that a milder preventive measure could not be applied. The Moscow City Court upheld the extension order on 3 April 2013.

On 23 April 2013 the Moscow City Court examined a fresh request to extend the applicant’s detention and set a new term of 6 July 2013 on the same grounds as previously.

On 16 May 2013 the Moscow City Court examined an appeal by the applicant against its decision of 23 April 2013 and reversed it on the grounds that the prosecutor’s office would have enough time to bring an indictment by 10 June 2013, adding that after that date the trial court could consider a new extension of the applicant’s pre-trial detention.

On 24 May 2013 the applicant’s criminal case was transferred to the Zamoskvoretskiy District Court of Moscow for the determination of criminal charges.

On 6 June 2013 that court granted another extension of the applicant’s detention, until 24 November 2013. The decision concerned eleven defendants. Along with the gravity of the charges, the court based its decision on the findings that “the reasons which had initially warranted the detention have not changed” and that “no other measures of restraint would secure the aims and goals of the judicial proceedings”. The court also pointed out that the applicant’s state of health was not incompatible with his being kept in custody. The Moscow City Court upheld the extension order on 2 July 2013.

On 18 June 2013 the Zamoskvoretskiy District Court began the trial in a criminal case against ten participants in the demonstration at Bolotnaya Square, who were charged with participation in acts of mass disorder and committing acts of violence against police officers.

The applicant made an application for release during a court hearing on 6 August 2013 but it was dismissed by the Zamoskvoretskiy District Court on the same day.

On 11 September 2013 the Ombudsman of the Russian Federation submitted a complaint to the Presidium of the Moscow City Court about the extension of the applicant’s pre-trial detention and requested an alternative preventive measure for him.

On 1 November 2013 the Moscow City Court refused the Ombudsman’s request.

On 19 November 2013 the Zamoskvoretskiy District Court granted another extension of detention in respect of ten defendants, including the applicant. It ordered their detention until 24 February 2014 on the grounds of the gravity of the charges and the nature of the offences imputable to them. On 17 December 2013 the Moscow City Court upheld that extension order.

On 18 December 2013 the State Duma passed the Amnesty Act which applied, inter alia, to pending criminal proceedings against people suspected and accused of criminal offences under Article 212 §§ 2 and 3 of the Criminal Code.

On 19 December 2013 the applicant requested the termination of the criminal proceedings against him by operation of the Amnesty Act. On the same day the Zamoskvoretskiy District Court granted the request and released him from detention.

The applicant has moderate myopia, complex myopic astigmatism and a congenital coloboma of the choroid.

From 23 June 2012 to 17 September 2012 and from 4 November 2012 to 29 June 2013 the applicant was held in remand prison IZ-77/5 in Moscow. Upon his arrival there he was given a medical check which did not reveal any health issues.

In IZ-77/5 the applicant was detained in cells 320 (until 29 June 2012), 406 (until 17 September 2012, then from 4 to 30 November 2012), 509 (until 10 December 2012), 506 (until 19 June 2013), and 507 (until 29 June 2013).

The cells had the following characteristics:

cell 320: 33.7 square metres and eight sleeping places;

cell 406: 38.4 sq. m and nine sleeping places;

cell 509: 18.2 sq. m and four sleeping places;

cell 506: 16.4 sq. m and four sleeping places;

cell 507: 16 sq. m and four sleeping places.

The parties agreed that on most days the number of inmates in the cell did not exceeded the design capacity. They also agreed that the size of the cells and the number of detainees had allowed the applicant four square metres of personal space and that the applicant had had an individual sleeping place in every cell.

The parties provided the following accounts of the conditions in the cells. According to the applicant, the cells were inadequately lit and ventilated, were excessively hot in the summer and cold in the winter, they all had a lavatory pan which was separated from the living space by a plastic partition to chin level, which did not provide enough privacy. The applicant alleged that he had been constantly exposed to cigarette smoke and that although the window in the cell could be opened, it overlooked a courtyard used for incinerating rubbish and had let in fumes. There was therefore a constant lack of fresh air in the cell, which the ventilation system could not compensate for. Outdoor exercise was limited to one hour per day. The applicant also stated that the window was too high to give sufficient light for reading or working on documents. Finally, he alleged that the purchase of an electric kettle was a condition for access to drinking water.

According to the Government, the cells were equipped with ventilation; the state of the sanitary facilities had been satisfactory; the cells had been cleaned and bedding changed once a week; the applicant had been entitled to one hour of outdoor exercise per day; and the cells had been disinfected and subjected to pest control monthly. They provided measurement tables for the remand prison, which had been created in August 2013. They showed that the level of light in the cells in which the applicant had been detained had ranged between 152 and 264 lux, the standard being 150 lux. The temperature in the cells had measured between 26oC and 28oC and humidity between 41% and 47%, while the permissible level was up to 28oC and 65% respectively. The Government also noted that detainees had access to a gym upon a written request.

On 11 July 2012 the applicant’s lawyer requested that the head of the remand prison order a medical examination for the applicant. He alleged that there had been a rapid deterioration of his eyesight.

On 16 July 2012 the public commission for the monitoring of detention facilities visited IZ-77/5, and the applicant complained to them about excessive heat in his cell and a deterioration of his eyesight.

On 30 July 2012 the applicant requested that the head of the remand prison organise a medical examination owing to his worsening eyesight.

On 27 August 2012 the applicant was taken for an outpatient consultation with an ophthalmologist. He was diagnosed with severe myopia, amblyopia, esotropia, and a congenital coloboma of the iris. The doctor noted that the applicant had last been examined in October 2004 and recommended that he have a special examination to determine his disability status (медико-социальная экспертиза).

On 8 November 2012 the chief of IZ-77/5 requested another ophthalmologic consultation, repeating the applicant’s complaints about the deterioration of his eyesight.

On 23 November 2012 the applicant was taken for another outpatient consultation with an ophthalmologist, who concluded that there were no negative developments in his state of health. The doctor also recommended that he have eye tests once a year.

On 13 December 2012 the applicant underwent the special examination for recognition of the status of being disabled, which he was refused.

On 29 March and 19 April 2013 the public commission for the monitoring of detention facilities visited IZ-77/5, and the applicant complained to them about the poor quality of his mattress and the deterioration of his eyesight.

On 17 September 2012 the applicant was transferred to remand prison IZ-77/1 in Moscow (Матросская тишина), which had a medical wing. The applicant remained there until 4 November 2012 and underwent a series of medical examinations, including blood tests, an echography, a chest photofluorography and an electrocardiogram.

According to the applicant, the prison cell measured 4 by 3.5 square metres and housed four inmates, including himself. The window measured 1.75 by 0.5 metres and was too high to give sufficient light for reading or working on documents. The artificial light was dim and flickering and was turned on even at night. There was no mechanical ventilation and the cell was damp, with broken window panes letting in the cold. A shower was allowed once a week and the toilet was only separated from the rest of the cell by a low wall. Outdoor exercise was limited to one hour per day and the purchase of an electric kettle was a condition for getting access to drinking water.

According to the certificate issued by the prison governor on 13 November 2013, the applicant was held in cell 707 in IZ-77/1. That cell had measured 16 square metres and had housed four inmates, including the applicant. The cell had one window measuring 115 by 170 cm and the state of the glazing was inspected every day and fixed whenever necessary. The temperature in the cell had been maintained at 18oC. Artificial light was provided by a fluorescent lamp with two 40-watt tubes from 6 a.m. to 10 p.m. and by a 40-watt lamp during the night, in line with requirements. The windows had no shutters, only a metal grill with 20-mm metal bars; the size of the mesh was 100 by 200 mm. Inmates had to clean the cell each day with chlorine bleach and detergent provided by the facility. The applicant had been able to shower once a week for fifteen minutes. The cell had been disinfected and subjected to pest control measures regularly.

On 16 October 2012 the applicant was examined by a commission of four doctors, including an ophthalmologist. They issued a report which, in so far as relevant, read as follows:

“... According to the [the applicant’s] medical documents, dated from 1997 to 2004, [he had been diagnosed with] medium myopia, complex myopic astigmatism, a congenital coloboma of the choroid, and a vascular congenital coloboma of the iris. Partial optic atrophy.

According to the results of the medical examination in [IZ-77/1] carried out on 5 October 2012 [he has] high myopia of the right eye. High-degree amblyopia of the left eye, esotropia. A congenital coloboma of the iris [and] of the choroid.

There have been no negative developments compared with the previous evaluation reports (medical examinations).”

On 31 October 2012 the public commission for the monitoring of detention facilities visited IZ-77/1 to check the conditions of the applicant’s detention. Its report read as follows:

“[The applicant] is being held in a cell in the remand prison’s medical wing. There are two other detainees in the cell. The cell is one of the worst in the medical wing of [IZ-77/1]. It is cold, the radiator is lukewarm and the glass in the hinged window is broken. The cell has not been renovated for a long time. Dirty, scuffed walls. There is no refrigerator or television, the radio socket is broken. [The applicant] complains that he has not received any treatment in the hospital for three weeks. The medical wing of the remand prison has no ophthalmologist and he was taken for a consultation to the [city hospital] ... According to the chief physician of the medical wing ... [the applicant] had 10% sight in one eye and 20% sight in the other. But the prison doctors could not recommend his release ... because only totally blind detainees are eligible.

... [The applicant’s] detention is detrimental to his health, his eyesight is deteriorating as each day goes by: the light is always on in the cell, day and night. The light is dim; that is bad for his eyesight.

The members of the [commission] consider that [the applicant’s] detention ... is a way to pressure him into giving the evidence the investigation wants. [He] risks losing his remaining eyesight. It is evident that he has been placed in the worst cell, cold and damp, instead of being treated in the hospital. He has been deprived of the possibility to receive visits from his family and has found himself in an information vacuum, without any television, radio or press. No adequate treatment or medical care.”

On 2 November 2012 the applicant was taken for an outpatient consultation with an ophthalmologist, who confirmed the previous diagnoses and identified no change in the applicant’s condition.

The discharge summary (выписной эпикриз) issued on 4 November 2012 contained the results of the applicant’s medical examinations carried out in IZ-77/1. The head of the prison’s medical wing concluded that they did not reveal the presence of any of the serious conditions which were listed as being incompatible with custody and there were thus no obstacles to the applicant’s detention.

On 30 June 2013 the applicant was placed in remand prison IZ-77/2 in Moscow (Бутырская тюрьма) where he was held until his release on 19 December 2013.

In IZ-77/2 the applicant was detained in cells 52 (until 7 July 2013), 01-a (until 12 July 2013), 703 (until 2 September 2013), 332 (until 19 September 2013), and 327 (apparently until his release).

The cells had the following characteristics:

cell 52: 26.96 sq. m and five sleeping places;

cell 1-a: 53.01 sq. m and twenty sleeping places;

cell 703: 11.42 sq. m and two sleeping places;

cell 332: 11.22 sq. m and three sleeping places;

cell 327: 9.25 sq. m and three sleeping places.

According to the applicant, the conditions in IZ-77/2 were poor, especially because of a lack of regular outdoor exercise and inadequate sanitary arrangements. In particular, the lavatory pan was only separated from the living space by a chest-high partition which did not provide sufficient privacy. In addition, the applicant did not take a shower after his transfer to IZ-77/2 until at least 30 July 2013, as he indicated in his letter.

According to the Government, the conditions in the cells at IZ-77/2 were as follows: the toilet was separated by a solid partition from the rest of the cell, which provided the necessary privacy; the state of the sanitary facilities was satisfactory; the cells were disinfected and subjected to a pest control procedure once every three months or whenever necessary; the applicant had been entitled to one hour of outdoor exercise daily; the cell had been cleaned and the bedding changed weekly; the cells were equipped with forced ventilation and could be aired through a hinged window. Artificial light was provided from a 100-watt bulb by day and a 75-watt bulb by night. The glazing of the windows let in sufficient daylight.

On 12 July 2013 the applicant was placed in the medical wing of IZ77/2 for an additional examination and adjustment of his treatment. He had been discharged on 18 July 2013 after refusing further treatment.

According to a statement of 7 November 2013 issued by IZ-77/2, the applicant’s state of health had been satisfactory and doctors had recommended that he have regular consultations with an ophthalmologist.

The applicant’s description of the conditions of detention during his transfer from the remand prison to court and back was identical to that in the case of Yaroslav Belousov (cited above, §§ 69-73).

On 6 June 2013 court proceedings began in hearing room no. 338 and in the end of July moved to hearing room no. 635 at the Moscow City Court. The defendants, including the applicant, were held in glass cabins in both hearing rooms. From mid-September 2013 to the end of 2013 the hearings continued at the Nikulinskiy District Court of Moscow in hearing room no. 303, which was equipped with metal cages.

For a detailed description of the conditions in those hearing rooms see Yaroslav Belousov (ibid., §§ 74-77).