Resolution CM/ ResDH (2009)22 [1]

Execution of the judgment of the European Court of Human Rights

H.K. against Finland

(Application No. 36065/97, judgment of 26 September 2006, final on 26 December 2006)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”);

Having regard to the judgment transmitted by the Court to the Committee once it had become final;

Recalling that the violation of the Convention found by the Court in this case concerns the failure of the authorities to take formal decisions when placing a child in emergency care and the fact that the applicant could not contest access restrictions (double violation of Article 8) (see details in Appendix);

Having invited the government of the respondent state to inform the Committee of the mea s ures taken in order to comply with Finland ’ s obligation under Article 46, paragraph 1, of the Conve n tion to abide by the judgment;

Having examined the information provided by the government in accordance with the Committee ’ s Rules for the application of Article 46, paragraph 2, of the Convention;

Having satisfied itself that, within the time-limit set, the respondent state paid the a p plicant the just satisfaction provided in the judgment (see details in Appendix),

Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded by the Court in its judgments, the adoption by the respondent state, where appropriate:

- of individual measures to put an end to the violations and erase their consequences so as to achieve as far as possible restitutio in integrum ; and

- of general measures, preventing similar violations;

DECLARES, having examined the measures taken by the respondent state (see Appendix), that it has exe r cised its functions under Article 46, paragraph 2, of the Convention in this case and

DECIDES to close the examination of this case.

Appendix to Resolution CM/ ResDH (2009)22

Information about the measures to comply with the judgment in the case of

H.K. against Finland

Introductory case summary

This case concerns the taking into care of the applicant ’ s daughter in 1995, on suspicion that he had sexually abused her. On 08/02/1995 an emergency care order was issued officially placing the child in her mother ’ s custody. The order was considered necessary in order to conduct examinations in the light of the allegations of sexual abuse. The applicant ’ s access rights were restricted a first time in March 1995. Subsequently, three care plans were drawn up in October 1995 and March and April 1998 which had the effect of further restricting the applicant ’ s access rights, although no formal decision had been made. In April 1996 the applicant was reported to the police and he was subsequently charged with, among other things, having sexually abused his daughter. In August 1999 he was finally acquitted of all charges against him.

The European Court observed that between 03 and 07/02/1995 the applicant ’ s daughter was placed in emergency care in the absence of any formal decision by the social welfare authorities as required by the Child Welfare Act (violation of Article 8). Concerning the access restrictions issued in March and October 1995, and March and April 1998, the European Court considered that the applicant should have been given an opportunity to contest those access restrictions (violation of Article 8).

I. Payment of just satisfaction and individual measures

a) Details of just satisfaction

Pecuniary damage

Non-pecuniary damage

Costs and expenses

Total

-

5 000 EUR

13 000 EUR

18 000 EUR

Paid on 23/03/2007

b) Individual measures

The applicant ’ s daughter subsequently returned to live with him. The European Court awarded him just satisfaction in respect of the non-pecuniary damage suffered.

II. General measures

This case presents certain similarities to the K. and T. against Finland case (judgment of 12/07/2001, Grand Chamber, closed by final resolution ResDH (2006)50) where measures were taken in relation to the placing of children in public care (in particular publication and dissemination of the judgment and training for the judiciary). In the instant case the facts were precedent to the measures adopted in the K. and T. case, and only the implementation of the existing legislation (mainly the Child Welfare Act) as regards the emergency care order from 3 to 7 February 1995 and certain access restrictions, had been challenged by the European Court . Moreover, the new Child Welfare Act which entered into force on 1 January 2008 aims, inter alia , at securing consideration of the rights and interests of a child when enforcing child welfare activities, as well as improving the legal protection of a child and his/her parents or carers particularly in decision-making relating to child ’ s welfare.

Given the measures already adopted and the direct effect of the European Convention in Finland, publication and dissemination of the European Court ’ s judgment to all competent courts should be sufficient to guarantee that the case-law of the European Court will be taken into account in the future, to prevent new, similar violations. In this context it should be noted that the judgment of the European Court has been translated and published in the judicial database Finlex ( www.finlex.fi ) and has been sent out to the relevant authorities on 2/10/2006.

III. Conclusions of the respondent state

The government considers that the measures adopted will prevent new, similar violations and that Finland has thus complied with its obligations under Article 46, paragraph 1 of the Convention.

[1] Adopted by the Committee of Ministers on 9 January 2009 at the 1043rd meeting of the Ministers’ Deputies