Aleš Pejchal;Armen Harutyunyan;Kristina Pardalos;Krzysztof Wojtyczek;Linos-Alexandre Sicilianos

NORP The applicant , Mr PERSON , is an NORP national who was born in DATE and lives in ORG . He was represented before the ORG by Mr A. Campagna , a lawyer practising in PERSON .

On DATE the applicant ( a journalist who manages a website , S ) was heard under oath as a witness , without the assistance of a lawyer , by an investigating judge . The questioning was in connection with a series of allegedly defamatory articles published on the website about a journalist and a politician , who had complained to the police on DATE and DATE respectively .

On an unspecified date a certain PERSON was questioned by the investigating judge .

On DATE the investigating judge put the applicant ’s name on the list as a suspect and issued a “ judicial notice ” , informing him of the charges against him being investigated ( a step required by GPE law ) .

On DATE the applicant was again questioned by the investigating judge , this time as a person subject to investigation , and he therefore had the assistance of a lawyer . The investigation was concluded on DATE and a bill of indictment was filed against the applicant on charges of insult , defamation and libel in connection with the abovementioned articles .

According to the applicant , on an unspecified date before he became aware of the indictment , he had asked that he and his lawyer be allowed to reexamine C. The request was ignored since the bill of indictment had already been issued .

By a judgment of CARDINAL DATE the applicant was found guilty of the charges . He was fined MONEY ( ORG ) and ordered to pay damages that had still to be quantified .

The applicant appealed on the merits and further argued that the investigating judge had purposely delayed putting his name on the list of suspects , which leads to the issuing of a judicial notice , in order to deny him his defence rights , contrary to LAW no . CARDINAL/CARDINAL . He noted that the judge had only filed the notice after C. ’s testimony ( which had then been repeated at the trial ) .

On appeal , by a judgment of DATE , the applicant was acquitted of the charges relating to the politician but found guilty of insulting and libelling the journalist . His fine was reduced to LAW .

In respect of his procedural complaints , the court of appeal considered that all the evidence had been adduced at trial and had thus been legitimate . It further noted that being put late on the list of suspects ( which is the basis for a judicial notice being issued within DATE ) and the collection of evidence in relation to an “ indagato sostanziale ” , against whom such a notice has not yet been filed , could not nullify the actions in question . Indeed , the decision as to when to issue such a notice was a matter of judicial discretion and at worst could only entail disciplinary proceedings against the judge concerned in cases of dolo or culpa grave . The court noted that in the case in question the applicant had repeated his statements in the presence of a lawyer and they had thus been totally legitimate .

NORP Moreover , there had been no infringement of the rights of the defence and the earlier questioning of the applicant had allowed him to become aware of the proceedings against the website he was managing . In any event , the court of appeal considered that the applicant had failed to specify which rights had been breached by the late filing of the judicial notice .

Law no . CARDINAL/CARDINAL concerning criminal procedural rules , in so far as relevant , reads as follows :

“ Except in the cases mentioned in LAW below , the investigating judge carries out all the investigating activity in general , as well as that related to the collection of evidence and particularly its acquisition ( formazione ) , while safeguarding the rights of the accused and the prerogatives of the Attorney General ( ORG ) as well as the rights of private parties as protected by criminal law .

The accused , assisted by a legal representative , and the Attorney General , have the right to present their defence by means of submissions and pleas . They may also examine and make copies of all the acts in the proceedings , including the report on the crime . The investigating judge must ensure that the parties can participate or be represented at each stage of the investigation proceedings . ”

“ ( CARDINAL ) Within DATE of the crime report ... , save for the exceptions set out in LAW below , the investigating judge must personally inform the accused and the Attorney General of the legal and factual elements of the crime in respect of which proceedings are being carried out ... ”


André Potocki;Angelika Nußberger;Carlo Ranzoni;Ganna Yudkivska;Mārtiņš Mits;Pavlina Panova;Síofra O’Leary;Yonko Grozev

NORP The applicant , Mr PERSON , is an NORP national who was born in DATE and is currently serving a prison term in GPE . He was represented before the ORG by PERSON , from ORG .

ORG ( “ the Government ” ) were represented by their Agent , PERSON , of ORG .

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

On TIME , who was serving in ORG at the time of the incident , was leaving a bar in GPE when he saw a group of CARDINAL young people in the street outside the bar . Some of them got into a brawl with CARDINAL GPE men . The applicant ran towards them , brandished a knife and started waving it at the group . During the ensuing fight he stabbed and killed CARDINAL of the young people in the assembled group , the CARDINAL-year - old son of a politician . He also seriously injured another young man . Shortly afterwards , QUANTITY police officers arrived and arrested the applicant .

The applicant was tried for murder . His defence was that he had attempted to protect the GPE men who had been attacked by the group of young people . He also claimed that he had used his knife in self - defence when the group had become violent towards him . The prosecution maintained that the applicant had run into the group in a determined way in order to administer justice . By the time he had intervened , the attack on the GPE had come to an end and he had not been acting in self - defence when he had stabbed CARDINAL members of the group .

The applicant was convicted of murder in DATE . The sentence was upheld on appeal and cassation . The applicant is currently serving a CARDINAL-year sentence in FAC . Both the case and the applicant have attracted significant public attention and extensive media coverage in GPE .

The applicant ’s close and extended family members – parents , siblings , grandparents , cousins , aunts and uncle – live in GPE ; he has no partner or children in GPE . Each journey between GPE and GPE for the CARDINAL-minute time slots allowed for visits involves substantial expense and absence from GPE for DATE . Because of such constraints , the applicant ’s parents have only managed to see him once DATE since he was imprisoned . Such visits have also become increasingly difficult for them with time . His grandparents are in DATE and so the journey to GPE has become almost impossible for them . A number of cousins and other close relatives , including an uncle and QUANTITY aunts to whom the applicant is very close , are unable to make the journey at all .

On the basis of the information in the case file , it is clear that the applicant has been receiving regular visits in prison DATE from family members , friends and acquaintances ; in particular , he was visited CARDINAL times DATE and DATE ; CARDINAL of those visits were from family members . Visits have been authorised when requested , including during periods falling outside the standard prison visiting schedule . According to a psychological assessment , made in DATE and submitted by the NORP authorities , the applicant is socially and emotionally balanced and mature , with realistic self - esteem , a preserved sense of humour and no signs of depressive tendencies , stress or anxiety . He is the chairperson of ORG and is fluent in the NORP language , both orally and in writing . He displays leadership potential and strives to dominate in the prison community in which he is well integrated ; he is popular among other inmates , both foreigners and NORP , whom he is known to frequently assist with the drafting of their requests and/or complaints to the prison administration . He is housed in the wing for foreigners , assists foreign prisoners by interpreting between NORP and NORP when necessary , and has regular access to a computer room , for TIME a day , which makes it possible for him to pursue a distancelearning university course leading to a degree . The applicant actively corresponds in writing with family and friends .

On DATE , at the applicant ’s initiative , the NORP authorities contacted the NORP authorities about the possibility of transferring the applicant to GPE for him to continue to serve his sentence there . On DATE ORG replied in writing that the question of the applicant ’s transfer could only be considered once he had paid outstanding damages to the victims .

On DATE a representative of the NORP Attorney General wrote to ORG , formally seeking ORG agreement to transfer the applicant under ORG on ORG of DATE ( the “ LAW ” , see paragraphs CARDINAL - CARDINAL below ) . The NORP authorities pointed out that the applicant met the eligibility conditions for the transfer of international prisoners and proposed a number of conditions in that respect . They included the following : that his transfer would not take place until his debts in GPE had been paid ; that the applicant would continue to serve his prison sentence in full in GPE and would become eligible for early release once he had served CARDINAL of it , this also being an option under NORP law ; that all reductions of the applicant ’s sentence confirmed by the NORP authorities would be reflected in the remaining sentence ; and that if the applicant benefitted from a conditional early release in GPE , he would be subject to parole conditions .

In a letter of DATE , sent via ORG , ORG informed the NORP Attorney General that the applicant ’s transfer had been refused . The letter emphasised that , having carefully considered the relevant provisions in LAW law , the prosecutor found that the conditions for transfer were not met . In particular , transfer was an option and not a mandatory consequence of a request made under LAW . The applicant still needed to serve over DATE of his CARDINAL-year sentence . Importantly , he had not shown remorse and had categorically been denying personal responsibility for the crime he had committed . In addition , he had expressed a negative and suspicious attitude towards the NORP justice system as a whole and had been demonstrating hostility and mistrust towards the orders issued by members of the prison administration . In view of the above and of the fact that he had only served a fraction of his sentence , the prosecutor found that the purpose of the punishment , including for the purposes of international law , namely to turn the convicted individual into a law - abiding citizen , had not been achieved .

NORP On DATE ORG announced publicly the refusal to allow the transfer of the applicant to serve the remainder of his sentence in GPE .

On an unspecified date the applicant appealed to ORG against the refusal to transfer him to GPE . In particular , he emphasised that the refusal was against the fundamental rationale behind LAW , which was to provide a possibility for GPE to cooperate towards achieving the purposes of justice and the social rehabilitation of convicted individuals . ORG declared the appeal inadmissible , finding that the Prosecutor ’s refusal to transfer the applicant was not an individual administrative act , given that the ORG was part of the judicial and not the executive branch of power .

The applicant appealed . In a final decision of DATE , ORG held that the refusal of ORG was not amenable to review by the administrative courts .

Article CARDINAL § CARDINAL regulates the transfer of individuals who have been sentenced . ORG is the competent national authority to decide on requests for the transfer of foreigners convicted by a NORP court to their country of nationality in order to serve their sentence . ORG agrees such transfers with the relevant competent body of the administering State , after agreement by the prisoner in question .

A new provision in LAW , LAW , in force since DATE , provides a possibility for an individual serving a sentence of imprisonment to personally request conditional early release under LAW ( CARDINAL ) of LAW if he or she has served CARDINAL of the prison sentence .

The Transfer Convention provides for a formal mechanism by which prisoners can be transferred from CARDINAL to another contracting ORG . Both member GPE and non - member ORG can accede to this LAW , which entered into force on DATE in respect of GPE and on DATE in respect of GPE .

The Explanatory Report to LAW states in paragraph CARDINAL that the purpose of the Convention is :

“ to facilitate the transfer of foreign prisoners to their home countries . ”

Article CARDINAL of the ORG provides :

“ CARDINAL . The Parties undertake to afford each other the widest measure of co - operation in respect of the transfer of sentenced persons in accordance with the provisions of this Convention .

NORP A person sentenced in the territory of a ORG may be transferred to the territory of another ORG , in accordance with the provisions of this Convention , in order to serve the sentence imposed on him . To that end , he may express his interest to the sentencing ORG or to the administering ORG in being transferred under this Convention . ”

Article CARDINAL sets out various conditions which must be met in order for a person to be transferred . A sentenced person may be transferred only if he is a national of the administering State . Both the sentencing and the administering State must consent to the transfer .

Under LAW , any sentenced person to whom LAW may apply shall be informed by the sentencing State of the substance of this LAW and if she or he expressed an interest in being transferred under this LAW , the sentencing ORG shall so inform the administering ORG as soon as practicable after the judgment becomes final .


Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life);Pecuniary damage - claim dismissed;Non-pecuniary damage - award

Alvina Gyulumyan;Ann Power-Forde;Corneliu Bîrsan;Dean Spielmann;Guido Raimondi;Ineta Ziemele;Isabelle Berro-Lefèvre;Ján Šikuta;Johannes Silvis;Josep Casadevall;Krzysztof Wojtyczek;Luis López Guerra;Mark Villiger;Nona Tsotsoria;Paul Mahoney;Vincent A. De Gaetano

The applicant was born in DATE and is living in GPE .

In DATE the applicant met and started a relationship with Mr PERSON , who – like the applicant – was born and had always lived in GPE . Both of them had acquired NORP nationality in DATE when GPE gained its independence ( LAW between GPE and GPE concerning the assignment of nationality ( ORG inzake nationaliteiten tussen het FAC ) , see paragraph CARDINAL below ) . In DATE , the applicant and Mr PERSON started to cohabit in the house of the latter ’s paternal grandfather in GPE .

On DATE , Mr W. travelled from GPE to the GPE , holding a GPE visa for the purpose of stay with his father in the GPE . In DATE , Mr PERSON was granted GPE nationality which entailed the renunciation of his NORP nationality .

Mr PERSON has CARDINAL sister , CARDINAL brothers and CARDINAL - brother who are living in the GPE . CARDINAL half - brothers and CARDINAL - sister are living in GPE . The applicant has one brother , PERSON , who was expelled from the GPE to GPE in DATE . The applicant has also CARDINAL - brother and CARDINAL - sister who are living in the GPE . She has another CARDINAL - sister who is living in GPE .

DATE , the applicant filed CARDINAL unsuccessful requests for a GPE visa for the purpose of visiting a relative . These requests were rejected because her sponsor ( referent ) was insufficiently solvent , had failed to sign the required affidavit of support ( garantverklaring ) or had failed to supply sufficient information required for the assessment of the visa request . The applicant did not challenge any of these rejections in administrative appeal proceedings .

On DATE the applicant filed a sixth visa request for the purpose of visiting a relative . After this request had been granted on DATE , the applicant entered the GPE on DATE and did not return to GPE when her visa expired DATE . To date , she has been staying in the GPE . She lived in GPE until DATE , when she moved to GPE . Since DATE she has been living at the same address in GPE .

On DATE , the applicant applied for a residence permit . According to the applicant , she had done so for the purpose of taking up residence with her GPE - national partner Mr PERSON According to the Government , the applicant ’s stated aim had been to take up “ paid employment ” . On DATE , the Deputy Minister of Justice ( ORG ) decided not to process the application ( buiten behandeling stellen ) as the applicant had on CARDINAL occasions failed to appear in person before the immigration authorities for the purpose of giving further information about her application . When , on DATE , the applicant ’s lawyer had requested a new appointment on the ground that she would be unable to attend the interview scheduled for DATE , she was informed by the immigration authorities that – despite her lawyer ’s absence – the applicant should appear in person . The applicant did not appear on DATE . The Deputy Minister ’s decision of CARDINAL DATE was notified to the applicant on DATE and she was ordered to leave the GPE within DATE .

The applicant filed an objection ( bezwaar ) against the decision of CARDINAL DATE . As this objection was denied suspensive effect , she applied for a provisional measure ( voorlopige voorziening ) in the form of a court injunction preventing her expulsion pending the determination of her objection . This application was rejected on DATE by the Acting President of ORG ( rechtbank ) of GPE sitting in GPE . The applicant ’s objection against the decision of CARDINAL DATE was rejected by the Deputy Minister on DATE . The applicant ’s appeal against this decision to ORG of The Hague and her accompanying application for a provisional measure were rejected on DATE by ORG of The GPE sitting in GPE . No further appeal lay against this ruling .

In the meantime , the applicant had married Mr PERSON on DATE and , in DATE , a son was born of this marriage . Under the GPE nationality rules , the applicant ’s child is a GPE national . Since the child was unwell , he required lengthy treatment in hospital . He is currently attending secondary school and has no health problems .

On DATE , the applicant applied unsuccessfully for a residence permit on the basis of the so - called DATE policy ( driejarenbeleid ) or for compelling reasons of a humanitarian nature . Under this DATE policy a residence permit could be granted if a request for such a permit had not been determined within DATE for reasons not imputable to the petitioner and provided that there were no contra - indications such as , for instance , a criminal record . In the course of the proceedings on this request , the provisional - measures judge ( voorzieningenrechter ) of ORG of The GPE sitting in GPE granted the applicant ’s request for a provisional measure ( injunction on removal ) on DATE . The final decision was given on DATE by ORG of The GPE sitting in GPE .

On DATE , a second child was born of the applicant ’s marriage . This child also holds GPE nationality .

On DATE , the applicant filed a request for a residence permit for the purpose of stay with her children in the GPE . This request was rejected because the applicant did not hold the required provisional residence visa ( machtiging tot voorlopig verblijf ) . Such a visa has to be applied for at a GPE mission in the petitioner ’s country of origin and it is a prerequisite for the grant of a residence permit ( verblijfsvergunning ) which confers more permanent residence rights . The applicant was not exempted from the obligation to hold a provisional residence visa . She challenged this decision unsuccessfully in administrative appeal proceedings in which the final decision was taken by ORG of The GPE sitting in GPE on DATE .

On DATE , the applicant requested the Deputy Minister of Justice to reconsider ( heroverwegen ) the negative decision on her last request . On DATE , the applicant filed a complaint with the Deputy Minister on account of the latter ’s failure to reply to her request for reconsideration . By letter of CARDINAL DATE , the Deputy Minister informed the applicant that although her complaint concerning delay was well - founded there was no reason for a reconsideration of the decision .

On DATE , the applicant applied for a grant of a residence permit at the discretion of the Deputy Minister ( conform beschikking staatssecretaris ) based on grounds of special and individual circumstances ( vanwege bijzondere en individuele omstandigheden ) .

On DATE , the Deputy Minister of ORG rejected this application . The applicant filed an objection with the Deputy Minister against this decision as well as an application to ORG of GPE for a provisional measure ( injunction on removal pending the objection proceedings ) . On DATE , having noted that this request was not opposed by the Deputy Minister , ORG of GPE granted the provisional measure . On DATE , after a hearing on the applicant ’s objection held on DATE , the Deputy Minister rejected the applicant ’s objection .

The applicant ’s appeal against the decision of CARDINAL DATE to ORG of The Hague and her accompanying application for a provisional measure in the form of an injunction on her removal pending the determination of her appeal were rejected on DATE by the provisional - measures judge of ORG of The GPE sitting in GPE . In its relevant part , this ruling reads as follows :

“ CARDINAL It is not in dispute that the appellant does not hold a valid provisional residence visa and that she is not eligible for an exemption from the requirement to hold such a visa under section CARDINAL § CARDINAL of LAW ( Vreemdelingenwet DATE ) or section QUANTITY of LAW ( Vreemdelingenbesluit DATE ) . It is only in dispute whether reason dictates that the defendant should exempt the appellant from the obligation to hold a provisional residence visa on the basis of section CARDINAL § CARDINAL of LAW [ for reasons of exceptional hardship ( onbillijkheid van overwegende ORG ) ] .

CARDINAL NORP ORG finds that the defendant could reasonably conclude that in the present case there are no special and individual circumstances on the basis of which insistence on compliance with the visa requirement would entail exceptional hardship . ...

CARDINAL NORP The appellant ’s reliance on LAW fails . There is family life between the appellant and her husband and her minor children , but the defendant ’s refusal to exempt her from the obligation to hold a provisional residence visa does not constitute an interference with the right to respect for family life as the defendant ’s decision did not deprive her of a residence permit enabling her to enjoy her family life in the GPE .

CARDINAL It does not appear that there is a positive obligation for GPE under LAW to exempt the applicant , contrary to the policy pursued in this area , from the obligation to hold a provisional residence visa . It is of importance at the outset that there has been no appearance of any objective obstacle to the enjoyment of family life outside the GPE . Taking into account the young age of the appellant ’s children , it can also reasonably be expected that they would follow the appellant to GPE for the duration of the proceedings relating to the provisional residence visa . This is not altered by the fact that both children are GPE nationals . The fact that the appellant ’s husband is currently being detained gives no cause for finding that ... there is an objective obstacle .

CARDINAL The appellant has cited the judgments of ORG in the cases of PERSON [ and PERSON v. the GPE , no . CARDINAL , ORG CARDINALI ] , PERSON [ v. the GPE ( striking out ) , no . CARDINAL , DATE ] and PERSON [ v. the GPE ( striking out ) , no . CARDINAL , DATE ] . This can not succeed , for the following reasons . The case of PERSON did not concern a temporary separation in connection with maintaining the requirement to hold a provisional residence visa , so the case can not be said to be comparable . In the cases of PERSON and PERSON ORG found that the reasons for lodging the complaints had been removed , because a residence permit had been granted to the complainants in those cases . For that reason , their complaints were not considered further . ORG fails to see in what manner ORG findings in those CARDINAL cases could be of relevance to the appellant ’s case .

CARDINAL The appellant has further invoked LAW . In so far as the provisions invoked entail a directly applicable norm , they have no further implications beyond the fact that in proceedings such as those at hand , the interests of the children concerned must be taken into account . In the decision of CARDINAL DATE , the situation of the appellant ’s CARDINAL minor children was explicitly taken into account in the assessment . As the provisions invoked do not contain a norm as regards the weight that must be given in a concrete case to the interests of a child , there is no ground for finding that those provisions have been violated .

CARDINAL NORP ORG will declare the appeal unfounded . ”

On DATE , upon his return to the GPE from a trip to GPE for the funeral of his foster mother , the applicant ’s husband had been found to have swallowed cocaine pellets . He was placed in pre - trial detention . On DATE , a single - judge chamber ( politierechter ) of ORG convicted him of offences under LAW ( PERSON ) and sentenced him to CARDINAL months’ imprisonment . On the basis of this conviction , ORG ( ORG ) included his name on a blacklist provided to airline companies operating direct flights between the GPE and GPE , the former GPE , GPE and GPE . His name was to remain on the list for DATE , the aim being to prevent him from reoffending . On DATE , after having served his sentence , the applicant ’s husband was released from prison . His name was removed from the airline blacklist on CARDINAL DATE .

The applicant ’s appeal of DATE to ORG of ORG ( GPE bestuursrechtspraak PERSON ) against the judgment of DATE of the provisional - measures judge of ORG of The Hague was dismissed on DATE . ORG found that the appeal did not provide grounds for quashing the impugned ruling ( kan niet tot vernietiging PERSON aangevallen uitspraak leiden ) . Having regard to section CARDINAL § CARDINAL of LAW , no further reasoning was called for as the arguments submitted did not raise any questions requiring a determination in the interest of legal unity , legal development or legal protection in the general sense . No further appeal lay against this decision .

In the meantime , the applicant filed a fifth request on DATE for a residence permit with the Minister of ORG ( Minister PERSON ) for the purpose of stay with a child , arguing that she should be exempted from the obligation to hold a provisional residence visa on grounds of special and individual circumstances .

This request was rejected on CARDINAL DATE by the Minister , who held that there was no reason to exempt the applicant from the obligation to hold a provisional residence visa and that the refusal of a residence permit was not contrary to LAW . While accepting that there was family life within the meaning of LAW between the applicant , her husband and their children , the Minister found that there was no interference with the right to respect for family life as the refusal to grant the applicant ’s request for exemption did not deprive her of a residence permit which enabled her to exercise her family life in the GPE .

As to the question whether the applicant ’s rights under LAW entailed a positive obligation for the GPE to grant her a residence permit , the Minister found that the interests of GPE in pursuing a restrictive immigration policy outweighed the applicant ’s personal interest in exercising her right to family life in the GPE . In balancing these competing interests , the Minister took into account the following : already in GPE and before her arrival in the GPE the applicant had been in a relationship with her current spouse ; she had entered the GPE without having been granted entry clearance for joining her partner as required under the relevant immigration rules ; and she had created her family in the GPE without holding a residence permit . When it transpired in the course of the proceedings that the applicant was pregnant , the Minister further held that it had not been established , nor did it appear that the applicant would be unable DATE should hospitalisation be necessary DATE to give birth in a hospital in GPE or that there would be any insurmountable objective obstacles to the exercise of family life in GPE . On this point , the Minister noted that NORP was spoken in GPE and that the transition would not therefore be particularly difficult for the applicant ’s children , who could continue their education in GPE in a normal manner .

NORP The Minister added that the mere fact that the applicant ’s spouse and children were GPE nationals did not entail an automatic obligation for the GPE authorities to grant the applicant a residence permit , or lead to the conclusion that the exercise of family life would only be possible in the GPE . The GPE authorities could not be held responsible for the consequences of the applicant ’s personal choice to come to , settle and create a family in the GPE without any certainty as to her entitlement to permanent residence . In the balancing exercise , the Minister attributed decisive weight to the fact that the applicant had never resided lawfully in the GPE and that there was no indication whatsoever that it would be impossible to exercise family life in GPE .

NORP The Minister further rejected the applicant ’s argument that she ought to be exempted from the visa requirement , on the basis that inter alia the length of the applicant ’s stay in the GPE was a consequence of her personal choice to continue to remain there . She had met with several refusals of her applications for a GPE residence permit but had nevertheless opted each time to file a fresh request , thus accepting the risk that , at some point in time , she would have to leave the GPE , at least , temporarily . The Minister further considered that the applicant had been born and raised in GPE where she had resided most of her life and , given her age , she should be regarded as capable of returning to and fending for herself in GPE , if need be with financial and/or material support from the GPE , pending the determination of an application for a provisional residence visa to be filed by her in GPE . The Minister concluded on this point that the case disclosed no circumstances warranting a finding that the decision not to exempt the applicant from the visa requirement constituted exceptional hardship within the meaning of section CARDINAL § CARDINAL of LAW .

On DATE , the applicant filed an objection against this decision with the Minister . She filed additional grounds for her objection and furnished further information by letters of CARDINAL and DATE May and DATE .

On DATE , the applicant requested ORG of The GPE to issue a provisional measure ( injunction on expulsion pending the outcome of the objection proceedings ) .

On DATE , following a court hearing held on DATE and having regard to pending proceedings taken by the applicant seeking deferral of her removal under LAW of LAW ( see paragraph CARDINAL below ) , the provisional - measures judge of ORG of The GPE sitting in GPE rejected the request for a provisional measure on the basis that it was moot .

On DATE the Minister rejected the applicant ’s objection of CARDINAL DATE . An appeal by the applicant against that decision was rejected on DATE by ORG of The GPE sitting in GPE . In so far as relevant , its judgment reads :

“ CARDINAL.CARDINAL.CARDINAL . It must be examined whether the defendant could have refused to exempt the appellant from the obligation to hold a provisional residence visa , as required under section CARDINAL § CARDINAL of LAW , on the ground that removal is not contrary to LAW .

It is not in dispute between the parties that there is family life between the appellant and her husband and their CARDINAL minor children . Refusing the application [ for a residence permit ] does not constitute interference within the meaning of LAW . No residence permit which actually enabled the appellant to enjoy family life in the GPE has been taken away from her . The subsequent question arises whether there exist such facts and circumstances that the right to respect for family life may be said to entail a positive obligation for the defendant to allow the applicant to reside [ in the GPE ] . In making this assessment , a ‘ fair balance’ must be found between , on the one hand , the interests of the alien concerned in enjoying family life in the GPE and , on the other , the general interest of ORG in pursuing a restrictive immigration policy . In this balancing exercise , the defendant has a certain margin of appreciation .

It was reasonable for the defendant to attach more weight to the general interest of GPE than to the personal interests of the appellant and her family members . The defendant did not have to accept an obligation to grant the appellant residence in the GPE on the basis of LAW . In this balancing exercise , the defendant was entitled to weigh heavily to the appellant ’s disadvantage the fact that she had started family life in the GPE when she had not been granted a residence permit for this purpose , and that she had further intensified her family life despite the refusal of her requests for residence . This is not altered by the fact that for a certain period the appellant was lawfully resident while awaiting the outcome of proceedings concerning a request for a residence permit .

NORP The defendant was entitled to take the position that the consequences of the appellant ’s choices were at her own risk . According to the case - law of ORG ( PERSON and PERSON v. the GPE [ no . MONEY , ORG CARDINALI ] ) , where family life has started while no residence permit for that purpose has been granted , removal will lead to a violation of LAW only in the most exceptional circumstances . The appellant has not established that , as regards her and her family , there are such exceptional circumstances . Her reliance on the judgments in PERSON and PERSON and GPE v. GPE ( no . MONEY , DATE ) fails , as her situation is not comparable to the one in the cases of PERSON and PERSON . In those cases it was established that the children could not follow their mother to the country of origin . With the removal of the mother , contact with the children would become impossible . However , in the appellant ’s case , it has not become sufficiently apparent that her husband and children could not follow her to her country of origin to continue family life there . The appellant has insufficiently demonstrated that her family members will encounter difficulties in entering GPE . The consequence of her husband ’s inclusion on a blacklist is that airlines can refuse to allow him on direct flights from the GPE to GPE , GPE , GPE and GPE during the period DATE and DATE . This does not mean that it is self - evident that the husband will not be admitted to GPE . The appellant has not established that it would be impossible for her husband to travel to GPE in another manner . In addition , it is important to note that registration on the blacklist is only of a temporary nature .

CARDINAL.CARDINAL.CARDINAL . No other circumstances have appeared on the basis of which the existence of an objective obstacle to continued family life in GPE must be accepted . There is also no question of excessive formalism . The appellant ’s situation is not comparable to the one in the case of PERSON . The defendant has taken the interests of the minor children sufficiently into account in the balancing exercise . The children were all born in the GPE and hold GPE nationality . At the time the impugned decision was taken , they were respectively CARDINAL , DATE . The children have always lived in the GPE . Although the oldest child has built up bonds with the GPE , the defendant did not have to accept this as a basis for holding that the children could not take root in GPE . In this connection it is also relevant that NORP is spoken in GPE and that both parents hail from GPE .

This is not altered by the fact that the appellant ’s husband and children hold GPE nationality and , on the basis of LAW on the Functioning of ORG ( hereinafter ‘ TFEU’ ) , can derive rights from their ORG citizenship . It can be deduced from the considerations of ORG of ORG ( hereinafter ‘ ECJ’ ) in the Dereci et al . judgment of DATE ( C-CARDINAL/CARDINAL ) , in which a further explanation is given of the PERSON judgment of CARDINAL DATE ( C-CARDINAL/CARDINAL ) , that in answering the question whether a citizen of the ORG who enjoys family life with a third - country national will be denied the right to reside in GPE territory flowing directly from LAW , only a limited importance is given to the right to respect for family life . As follows from DATE and CARDINAL of the ORG judgment , this right is not , as such , protected by LAW but by other international , ORG and domestic rules and regulations , such as LAW , ORG and LAW . In answering this question the desire of family members to reside as a nuclear family unit in the GPE or ORG is , inter alia , also of limited importance .

CARDINAL.CARDINAL.CARDINAL . The situation of an ORG citizen being denied the right to reside in GPE territory arises only when the GPE citizen is so dependent on the third - country national that , as a consequence of the decision by the defendant , he has no other choice than to stay with that national outside GPE territory . In the appellant ’s case , that has not occurred . The appellant ’s children can be cared for by their father . The father also has GPE nationality . The appellant ’s husband and children are not obliged or actually compelled to go with her to GPE in connection with the application for a provisional residence visa . Their rights as ORG citizens are thus not breached .

It was reasonable for the defendant to take the view that there was no appearance of very special individual circumstances leading to undue hardship . The proceedings concerning the appellant ’s previous requests for a residence permit and the course of events during her placement in GPE detention for removal purposes can not be regarded as such . The lawfulness of the decisions taken in those proceedings can not be examined in the present appeal proceedings . The appellant has further not substantiated her claim that , when she submitted her first request for a residence permit , she complied with all the requirements and that she should then have been granted a residence permit . ... ”

ORG went on to find that the applicant had not substantiated her alleged medical problems or why these problems should lead to exempting her from the obligation to hold a provisional residence visa . The court further found that the applicant had not demonstrated her claim that , apart from the requirement to hold a provisional residence visa , she met all requirements for the issuance of a residence permit .

On DATE , the applicant filed a further appeal with ORG . No further information about the proceedings on this latest request for a residence permit has been submitted by the parties .

On DATE , the NORP police ordered the applicant to report to them on DATE so that she could be served with notice to leave the country within DATE . This order was withdrawn owing to the applicant ’s third request for a residence permit filed on DATE ( see paragraph CARDINAL above ) .

On DATE , the applicant ’s lawyer was informed by the NORP police that – as the applicant ’s appeal against the judgment of DATE ( see paragraphs CARDINAL and DATE above ) did not have suspensive effect – they would proceed with the applicant ’s removal .

On DATE , having failed to respond to a summons of DATE to report to the NORP police , the applicant was placed in GPE detention ( vreemdelingenbewaring ) for removal purposes in accordance with section CARDINAL § CARDINAL ( a ) of LAW . She was taken to the GPE detention centre where she was found to be pregnant , her due date being DATE .

The applicant ’s CARDINAL successive release requests were rejected by ORG of The GPE sitting in GPE on DATE , DATE and DATE , respectively . In each decision , ORG found that there were sufficient prospects of expulsion within a reasonable time frame and that the GPE authorities were pursuing the applicant ’s removal with sufficient diligence . In its rulings , ORG also rejected the applicant ’s arguments that her pregnancy rendered her detention contrary to LAW and that , against that background , her conditions of detention were incompatible with that provision . In this context , in a letter of QUANTITY DATE and addressed to the applicant ’s lawyer who submitted it in the proceedings to ORG , the GPE section of ORG expressed its concern about the applicant ’s placement in GPE detention . Although aware that the applicant had failed to respect the duty to report imposed on her , ORG considered that a less severe measure than deprivation of liberty would be appropriate in the particular circumstances of the applicant ’s case .

NORP In the course of her placement in GPE detention , the applicant , on DATE , DATE and DATE , also filed complaints about her conditions of detention with the competent ORG ( GPE PERSON ) of the CARDINAL detention centres where she was held . These complaints were decided in CARDINAL decisions given on CARDINAL and DATE , respectively . Apart from the applicant ’s complaint of CARDINAL DATE that she had been required to wear restraints during transports to hospital , which was accepted as well - founded in the decision of CARDINAL DATE , the applicant ’s complaints were dismissed . On DATE ORG ( beroepscommissie ) of ORG ( PERSON GPE ) gave final decisions on the applicant ’s appeals against the decisions of CARDINAL and DATE . It held that the use of restraints for pregnant women was impermissible . It also held that the applicant had received too little supplementary nutrition upon arrival at the GPE detention centre . These complaints were considered by ORG in its decision on admissibility of DATE ( see paragraph CARDINAL above ) and were declared inadmissible for the reasons set out therein .

The applicant was released from GPE detention on DATE and her third child was born on DATE .

On DATE , ORG in GPE issued a NORP passport to the applicant , which is valid until DATE .


Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 2 of Protocol No. 1 - Control of the use of property)

Alena Poláčková;Helen Keller;Pere Pastor Vilanova

The applicants are owners of residential buildings which were or still are subject to the rent - control scheme . Under the relevant legislation they were obliged to let their flats to tenants while charging no more than the maximum amount of rent fixed by the ORG . The legislation precluded them from unilaterally terminating the leases or selling the flats in question to anyone other than the respective tenants . The particulars of the flats affected by the rent control are set out in LAW ( columns A - F ) .

The situation of the applicants is structurally and contextually the same as that in GPE and Others v. GPE ( no . CARDINAL/CARDINAL , DATE ( merits ) and DATE ( just satisfaction ) and subsequently decided cases concerning the rent - control scheme in GPE ( Krahulec v. GPE , no . CARDINAL ; ORG and Others v. GPE , no . CARDINAL ; and PERSON v. GPE , no . CARDINAL , DATE ; PERSON Others v. GPE , nos . CARDINAL , ORG , CARDINAL , CARDINAL ; ORG and Others v. GPE , no . CARDINAL , DATE ) .


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

Jon Fridrik Kjølbro;Julia Laffranque;Paul Lemmens;Georges Ravarani;Ksenija Turković

The applicant was born in DATE and lives in PERSON ( GPE ) .

On DATE , the applicant ’s father - in - law , Vu . PERSON , represented by his wife GPE , concluded a contract for the exchange of his house in GPE ( GPE ) for CARDINAL owned by ORG in ORG , GPE ) .

In DATE Vu . PERSON brought a civil action in ORG ( PERSON ) against F.O. ’s heirs , seeking permission to register his ownership ( clausula intabulandi ) of the house in GPE .

On DATE ORG ordered F.O. ’s heirs to issue a clausula intabulandi to Vu . Z and the defendants obeyed that order .

Vu . PERSON died on an unknown date DATE .

On DATE ORG , Vu . PERSON ’s son and the applicant ’s husband , brought a civil action in ORG ( PERSON ) , seeking to have the contract for the exchange of the houses declared null and void . He claimed that the contract had been signed under duress because of circumstances arising from the war in GPE . He also claimed that his father ’s signature on the power of attorney used by his mother , Vu . PERSON ’s wife , to sign the impugned contract on the latter ’s behalf , had been forged . In his action , ORG indicated the value of the subject matter of the dispute ( vrijednost predmeta spora ) at CARDINAL NORP PERSON ( HRK ) ( MONEY ( ORG ) at the time ) . Later on , at a hearing on DATE , he indicated the value of the subject matter of the dispute at HRK CARDINAL ( approximately EUR CARDINAL at the time ) . The defendants objected .

On DATE ORG ordered ORG to pay court fees of HRK CARDINAL,CARDINAL ( approximately ORG CARDINAL at the time ) for bringing the civil action . It assessed the fees according to the value of the dispute being at HRK CARDINAL,CARDINAL .

By a judgment of DATE ORG dismissed the claim and ordered the claimant to bear all the litigation costs and the expenses of the opposing parties , namely HRK CARDINAL,CARDINAL.CARDINAL ( approximately ORG CARDINAL,CARDINAL at the time ) . It assessed the costs of the proceedings according to the value of the subject matter of the dispute indicated at the hearing on DATE , namely HRK CARDINAL . The relevant part of the judgment reads as follows :

“ ... the costs of the proceedings were awarded to the defendants [ and assessed ] according to ... the value of the dispute indicated by the claimant ( HRK CARDINAL NORP ( page CARDINAL [ of the case - file ] ) that the [ first - instance ] court accepted . ”

On DATE the first - instance court ordered the claimant to pay court fees of HRK CARDINAL for the judgment . It also assessed them according to a value of HRK CARDINAL for the dispute .

By a judgment of DATE ORG ( PERSON ) dismissed an appeal by the claimant and upheld the first - instance judgment . The relevant part of that judgment reads as follows :

“ ... the decision on the costs of the proceedings is based on the relevant law and adequate reasons are provided . ”

On DATE ORG lodged an appeal on points of law ( revizija ) with ORG .

On DATE ORG died . The proceedings were taken over by his wife PERSON , the applicant , as his heir .

By a decision of CARDINAL DATE ORG declared the appeal on points of law inadmissible ratione valoris , finding that the value of the subject matter of the dispute was below the statutory threshold of HRK CARDINAL,CARDINAL . It held that the applicable value of the subject matter of the dispute was the one indicated in the claimant ’s civil action . The relevant part of that decision reads as follows :

“ With regard to section CARDINAL(CARDINAL ) of LAW if , in a situation referred to in subsection CARDINAL , it is obvious that the value of the subject matter of the dispute indicated by the claimant is too high or too low , so that an issue arises over jurisdiction over the subject matter , the composition of the court , the type of proceedings , or the right to lodge an appeal on points of law , the court shall quickly and in an appropriate manner verify the accuracy of the value specified , by the latest at the preparatory hearing or , if no preparatory hearing has been held , at the main hearing before the examination of the merits .

It follows that when an action does not concern a sum of money the claimant is obliged to indicate the relevant value of the subject matter of the dispute in the civil action , after which the claimant is not allowed to change the [ indicated ] value of the dispute . Only a court may set the value of the subject matter of the dispute , ex officio or if an objection is raised by the defendant , if it establishes that the value indicated in the civil action is too high or too low , by the latest at the preparatory hearing or , if no preparatory hearing has been held , at the main hearing before the examination of the merits .

In the present case the value of the subject matter of the dispute indicated in the statement of claim is CARDINAL NORP kunas .

Later on , at the hearing of DATE , the claimant ’s representative indicated the value of the subject matter of the dispute at CARDINAL NORP kunas ... . However , the claimant did not amend the claim at the same time . [ Therefore ] the first - instance court did not adopt a decision on a new value for the dispute because the procedural requirements under section CARDINAL(CARDINAL ) of the CPA [ LAW ] were not met .

It follows that the relevant value of the subject matter of the dispute is the one indicated by the claimant in the civil action , namely CARDINAL NORP kunas , because the claimant was not allowed to change the indicated value if he did not amend his claim at the same time . ”

By a decision of CARDINAL DATE ORG declared a constitutional complaint by the applicant inadmissible on the grounds that the case raised no constitutional issues . On DATE it served its decision on the applicant ’s representative .


No violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression)

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

The applicant was born in DATE and lives in GPE .

At the relevant time the applicant was a member of the NORP parliament .

NORP In DATE a series of reports appeared in the NORP press in which the applicant ’s past was described . It was reported that the applicant had sexually abused students when working as a teacher in DATE . The reports in question were published in the NORP DATE newspapers ORG on DATE and Rzeczpospolita and PERSON on DATE , on the internet portal ORG on DATE , and by ORG on DATE and ORG on DATE and DATE .

On DATE the applicant organised a press conference which was held in the PERSON building . The conference was transmitted by a TV news information channel , TVNCARDINAL . At the press conference the applicant said :

“ ... of course this was connected with the blackmail to which we were subjected . We already know which journalists cooperated , and with whom , in order to obtain money from us under false pretences . DATE this is CARDINAL per cent clear to us . I think that DATE those CARDINAL gentlemen already know about that . Those journalists cooperated with the informer who supplied the information on the basis of which the whole matter was disseminated and DATE , as far as we know , they are being paid for that . I do not yet know how much , CARDINAL or PERCENT of the amount obtained ... ”

Following this statement , a journalist from the DATE ORG NORP commented :

“ I am the author of this article , GPE , from ORG . My question concerns the people who inspired me ... Maybe you could tell us something else about these familial - financial relationships ? ”

The applicant replied :

“ I will reply to you . The first complaint will be lodged against you [ with the court ] DATE . After that , CARDINAL more complaints will be lodged ... ”

On DATE the Rzeczpospolita daily published an article entitled “ PERSON : I did not commit rape , I will sue ORG ” . According to this article , the ORG DATE had written that in DATE the applicant ’s employment contract had been terminated without notice because he had sexually abused young girls . The article went on to say that DATE after publication of this story , the TV station ORG reported that the applicant had been convicted in DATE of having assaulted a woman passenger on a train when working as a train conductor . The article also mentioned that during an interview with Rzeczpospolita the applicant had said :

“ The disclosure of these matters is in effect a plot in which ORG was involved ” .

NORP The author of the article was FAC , who wrote it after interviewing the applicant on the phone . According to ORG the applicant approved publication of the contents of the article and the statements cited in the article were the statements made by the applicant .

NORP However , the applicant denied having spoken to ORG or having approved any information for publication in the press article . When questioned by the court he said that he had not attempted to have a correction of this article published because he had only found out about it in the course of the judicial proceedings ( see paragraph CARDINAL below ) .

On DATE the former editor - in - chief of the ORG daily , ORG , and the publisher of the newspaper , the company ORG . z o.o . , lodged a civil claim against the applicant for the protection of their personal rights . They claimed that the applicant had harmed their good name and credibility by statements he had made at the press conference on DATE and in the article published by Rzeczpospolita on DATE .

On CARDINAL DATE ORG granted the claim in part and ordered the applicant to publish an apology for the statements he had made DATE and which were cited in the article published by Rzeczpospolita on DATE using the following wording :

“ PERSON apologises to ORG , the former editor - in - chief of the ORG DATE , for unlawful infringement of his personal rights , namely his good name and professional credibility , by alleging in DATE in an article published in issue no . CARDINAL dated DATE under the headline : “ PERSON - I did not commit rape ; I will sue ORG ” that “ the disclosure of the matters referred to in the article is in effect a plot in which ORG was involved ” .

The applicant was also ordered to make a similar statement of apology as regards the plaintiff company ORG . z o.o . and to publish these CARDINAL statements in a particular way on page CARDINAL of Rzeczpospolita .

The court refused to grant the GPE request that the apology also be published in CARDINAL other dailies and on the ORG channel , finding that such an order would exceed the severity of the infringement committed by the applicant .

The court justified its reasoning by finding that the applicant ’s statement referring to a “ plot ” in which the ORG DATE was involved infringed the plaintiffs’ personal rights , and at the same time the applicant had not in any way proved the veracity of his allegations ; both at the time the article was published and later , in the course of the civil proceedings , he had failed to demonstrate that the newspaper had in fact been involved in any “ plot ” . The court concluded that the applicant ’s statements , which had been made in public , amounted to “ unverified suspicions and accusations addressed to the newspaper ” . It further observed that the applicant , as member of the parliament , had “ a right to criticise socially negative phenomena ” guaranteed to him by LAW and by LAW . However , “ while enjoying this right , he may not overstep the limits of permissible criticism by spreading groundless accusations . ”

The court did not find credible the applicant ’s submission at the hearing on DATE that he had only found out about the Rzeczpospolita article in the course of the proceedings . The court took the view that , having held a press conference , the applicant would surely have followed the press articles which appeared over DATE concerning the subject matter discussed at the conference .

The court dismissed the remainder of the claim , finding that the statements made by the applicant at the press conference on DATE could not unambiguously be interpreted as concerning journalists from a specific newspaper , because the applicant had not expressly mentioned any journalist or newspaper by name .

Both parties appealed against the first - instance judgment .

On DATE ORG amended the challenged judgment insofar as it additionally ordered the applicant to publish an apology for the statements made during the press conference on DATE . The court examined what was said in the course of the conference and found that the applicant had initially referred to the events of DATE , and to his work at the school and in the railway company . He had also said :

“ Everything which was written in ORG is untrue ” .

ORG , the applicant had spoken about his feelings about the case and about the sources that lay behind the story reported by the “ journalists involved in this case ” . He stated that :

“ The first bill of indictment will be lodged with the court against the tabloid ’s editor DATE . Before DATE , CARDINAL more complaints will be lodged . All [ complaints ] concern articles in the newspaper discussed ” .

After further statements referring to events at the school where the applicant had worked and a statement by the applicant ’s wife , the applicant made the statement referred to above ( see paragraphs CARDINAL and CARDINAL ) , which in turn provoked the reaction by GPE ( see paragraph CARDINAL above ) .

ORG concluded that , although the applicant had not specifically mentioned the names of any journalists or newspapers , for the average person it was clear from the context of the statements concerned that the charges of blackmail and obtaining money under false pretences had been directed at journalists from ORG .

The ORG additionally ordered the applicant to publish the following apology on the TV NORP TVN CARDINAL on a weekday between TIME and TIME

“ PERSON apologises to ORG , the former editor - in - chief of the ORG DATE for unlawful infringement of his personal rights , namely his good name and professional credibility , by making a statement at the press conference on DATE which contained the untrue and defamatory allegation that ORG journalists had cooperated with informers in order to obtain money from PERSON under false pretences and , when publishing articles about PERSON in ORG , had received a percentage of the money obtained under false pretences . PERSON expresses his regret for having illegally infringed the personal rights of the former editor - in - chief ORG ”

The applicant was also ordered to publish , in the same medium , an identical apology regarding the company ORG sp . z o.o .

The applicant lodged a cassation appeal .

On DATE ORG refused to examine the appeal , holding that the applicant had not demonstrated that ORG had overstepped the limits regarding the assessment of evidence or had infringed the rules of interpretation of the relevant provisions .

J.H. lodged a private bill of indictment against the applicant . He claimed that on DATE the applicant had slandered him through the mass media at a press conference by making public allegations that he had cooperated with informers in order to obtain money from the applicant . He also requested that the applicant be found guilty of slandering him by giving an interview to the Rzeczpospolita DATE in which he had alleged that GPE had participated in a plot against him .

On DATE ORG found the applicant guilty of CARDINAL counts of slander and sentenced him to a fine .

The applicant did not appeal against this judgment .

The applicant in turn also lodged a private bill of indictment against GPE He sought a criminal conviction for GPE on CARDINAL counts of slander : firstly , for having published an article alleging that the applicant had sexually abused children and secondly for having published , on DATE , another article under the title : “ Woman assaulted by Bestry . He wanted to force her into submission . He was convicted for beating her up ” .

On DATE ORG acquitted GPE on the first count of slander but found him guilty on the second count .

The applicant ’s lawyer and GPE ’s lawyer both lodged appeals against this judgment .

On DATE ORG amended the first - instance judgment in that it also acquitted GPE also of the second count of slander , finding that he had not committed an offence because he had merely made public truthful information concerning a person exercising a public function . The court found that ORG had collected sufficient evidence to prove the veracity of the information he had published and therefore could not be found guilty of slander . The court admitted that as regards the second count of slander , PERSON had published information about a criminal conviction which , due to the passage of time , had already been removed from the applicant ’s criminal record . However , it considered that the expunging of the applicant ’s record had concerned only its criminal and not its civil aspects and that the disclosure of the expunged conviction was permissible if made for the purposes of protecting a “ socially protected interest ” .

On DATE ORG declined to examine the appeal , holding it to be unfounded .


Aleš Pejchal;André Potocki;Angelika Nußberger;Helena Jäderblom;Mark Villiger;Vincent A. De Gaetano

The first applicant , Mr PERSON , is a NORP national born in DATE and the second applicant , PERSON , is an NORP national born in DATE . They are residing in GPE . They were represented before the ORG by PERSON , a lawyer practising in GPE , GPE , and PERSON , a lawyer practising GPE , GPE .


Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Prohibition of torture;Degrading treatment)

The applicants were detained in FAC in GPE when they lodged their application with the ORG .

The first applicant was detained in FAC on DATE , and was still in detention at the time his observations to the ORG were submitted . His detention in FAC was temporarily interrupted when he was transferred to FAC from DATE until DATE , and to PERSON from DATE to CARDINAL DATE . The second applicant was detained in FAC on DATE and the third applicant on DATE ; they were still in detention when they submitted their observations to the ORG . The fourth applicant was detained in GPE prison from DATE to CARDINAL DATE , except for the periods from DATE to CARDINAL DATE , from DATE to DATE , and from DATE to CARDINAL DATE , during which time he was detained in FAC . The fifth applicant was detained in FAC from CARDINAL DATE to DATE , except for the period DATE and DATE . The sixth applicant was detained in FAC from DATE to CARDINAL DATE .

The applicants alleged that the prison held CARDINAL prisoners , while it had been designed to accommodate CARDINAL . The applicants were detained in wings A and D in various cells which all measured QUANTITY m , including the space for sanitary facilities , and accommodated CARDINAL prisoners ; the living space for each prisoner was therefore CARDINAL sq . m.

NORP The toilet facilities were partially separated from the rest of the cell . In addition , there was insufficient heating and hot water . Inmates had to use a washbasin to wash themselves , as well as their dishes and clothes . Cells were dirty and overrun with cockroaches and other pests , and no attempt was made to exterminate them . PERSON was not properly collected and food remains were left in the cells and corridors for days . Prisoners were not sufficiently separated according to their health conditions or whether or not they were drug users . There was no adequate medical care , in particular as regards psychological health .

The inmates were confined to their cells for TIME per day , as recreational or educational activities were not provided . They had to take their meals , which were poor in terms of quality and nutritional value , inside their cells .

NORP Moreover , the prison was understaffed and unable to secure the prisoners’ safety .

The Government asserted that the first to fifth applicants had been detained in various cells in wings A and NORP All cells measured QUANTITY m. and accommodated CARDINAL or , on rare occasions , QUANTITY detainees . The first applicant had also been detained in CARDINAL cells in wing E : CARDINAL which measured QUANTITY m. , and another which measured CARDINAL sq . m. and accommodated CARDINAL detainees , although it had only accommodated QUANTITY detainees for a short period of time .

All cells had a window ensuring sufficient light . Every cell was furnished with a washbasin , a toilet , beds , a table , chairs and , usually , wooden shelves . Wings A , B , C and D had CARDINAL communal showers each , and wing E had CARDINAL communal showers . Each wing could provide QUANTITY of hot water DATE . Detainees were provided with sheets and blankets , except for when they chose to use their own .

NORP The prison had a central heating system , and inmates were provided with fans during DATE . Cells were regularly disinfected and cleaned twice a day by cleaning crews consisting of detainees . All wings had rubbish bins .

All detainees had access to the prison ’s infirmary , which was open QUANTITY per day , and there were CARDINAL doctors with different areas of specialism and QUANTITY nurses who offered appointments to the prisoners . When inmates’ conditions could not be dealt with in the infirmary , they were transferred to ORG , ORG or an external hospital . The ORG submitted the applicants’ medical records , to demonstrate that they had been treated on various occasions . Additionally , the prison ’s social services took care of GPE needs , including those of the applicants , who had used those services on a number of occasions .

As regards ORG meals , the ORG submitted the menu for DATE selected at random to demonstrate that meals were varied .

Prisoners were able to spend TIME in the prison yard every day , practising sport . They were allowed to have a television in the cells , and the prison had a lending library and a book club . In addition , detainees had the opportunity to take CARDINAL of the available jobs or attend “ second chance ” school .

The Government did not submit observations concerning the sixth applicant ( see below , paragraphs CARDINAL - CARDINAL ) .


Violation of Article 2 - Right to life (Article 2 - Positive obligations;Article 2-1 - Life) (Substantive aspect);Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect)

The applicant was born in DATE and lives in GPE , GPE . He is the father of PERSON , who died of tuberculosis in a prison hospital .

In DATE Mr NORP arrived at correctional colony no . CARDINAL in LOC where he was to serve his DATE sentence . On admission to that facility , he underwent a general medical check - up permed by a prison doctor who concluded that he was healthy . CARDINAL routine chest X - ray examinations in DATE confirmed that conclusion .

On DATE Mr NORP complained to the prison medical authorities of fatigue and a cough . Acute rhinopharyngitis was diagnosed and a standard treatment for that condition was prescribed , but the symptoms persisted . DATE , the prison doctor diagnosed acute pneumonia of the left lung . PERSON was admitted to the prison medical unit and prescribed medication and a special dietary regime .

On DATE , in view of the absence of any positive changes in Mr NORP ’s health , he was moved to a prison tuberculosis hospital . A chest PERSON examination performed on DATE of his admission showed a massive infiltration in the lungs .

DATE Mr R. underwent a sputum test , which revealed his affliction with tuberculosis combined with pneumonia . Treatment with CARDINAL first - line drugs was prescribed . It was started DATE , but had no effect on Mr NORP ’s health .

On DATE a drug susceptibility test was performed . The test result was only received on DATE ( see paragraph CARDINAL below ) . An additional chest X - ray examination on DATE indicated further progress of the diseases .

In the light of the above , on DATE Mr NORP was transferred to the GPE regional prison tuberculosis hospital ( “ regional prison hospital ” ) , where his treatment continued as previously prescribed .

According to the applicant , PERSON was unsatisfied with the quality of his treatment . In DATE both the applicant and Mr NORP unsuccessfully sought the latter ’s transfer to a medical facility located in a southern region , where PERSON could have been provided with adequate treatment in a more suitable climate .

In the meantime , regular chest X - ray examinations showed that PERSON R. ’s health was continuing to deteriorate . By DATE pulmonary cavities had appeared , and his condition had become serious .

On DATE the regional prison hospital received the result of the drug susceptibility test of DATE . It revealed that PERSON tuberculosis was resistant to CARDINAL antibiotics being used in his treatment .

According to a medical entry made at the top of a page outside the related fields in PERSON medical file , on DATE he was prescribed treatment with advanced antibiotics . There are no regular entries showing the actual intake of the new drugs .

In DATE PERSON condition was assessed as “ of medium gravity ” , but on DATE he died . According to an autopsy report drawn up DATE , the cause of death was cardio - respiratory insufficiency provoked by tuberculosis .

In DATE the applicant asked for criminal proceedings to be instituted into the circumstances leading to his son ’s death . He alleged that the authorities responsible for protecting the life and wellbeing of his son had failed to comply with their obligations .

On DATE the Primorskiy Inter - District Prosecutor ’s Office refused to open a criminal case . Its page - long decision was based on the autopsy report and general information on PERSON treatment submitted by the prison medical authorities . The investigator concluded that PERSON had died of tuberculosis for which he had received medical treatment , and that the patient ’s detention in a northern region had not breached NORP law .

NORP In DATE the applicant repeated his request , having argued that the custodial authorities bore responsibility for his son ’s death because they had failed to protect him from tuberculosis and to ensure prompt diagnosis of the disease .

By a letter of CARDINAL DATE a prosecutor informed the applicant that a criminal inquiry had established that his son had contracted tuberculosis in DATE . The correctional colony had promptly identified the disease and had ensured treatment keeping the disease under control . The investigating authorities did not assess the quality of the medical services provided DATE .

The applicant appealed against the decision of DATE , insisting that the investigator ’s finding had not been supported by expert evidence . He further argued that the detention authorities had failed not only to diagnose his son ’s tuberculosis promptly , but also to provide him with adequate care in the regional prison hospital .

On DATE the ORG of Arkhangelsk examined the claim . PERSON , the head of the regional prison hospital ’s unit responsible for PERSON treatment , was heard . She stated that PERSON had been admitted to the hospital on DATE . Shortly thereafter he had undergone medical testing . PERSON stressed that the testing had been complex and that the hospital had only received the test result in DATE . On DATE the doctors had learned that Mr R. ’s tuberculosis had been drug resistant . They had prescribed treatment with advanced antibiotics . However , by that time pathological changes in the patient ’s body had already become irreversible .

Having regard to the investigation file , the court noted that the investigating authorities had solicited neither the autopsy report nor medical documents concerning PERSON treatment and that they had not interviewed any doctor involved in the treatment . The court thus concluded that the criminal inquiry had not been thorough . It overruled the prosecutor ’s decision of DATE not to open a criminal case .

On DATE ORG quashed ORG decision on appeal . It noted that it was not for the investigative authorities to assess all possible versions of the events and that there was no obligation on them to resolve each inconsistency in the case . The court found that the documents obtained by the firstinstance court and the statement by Ms B. had remedied the alleged shortcomings in the investigation . The case was remitted to ORG for a fresh examination .

DATE ORG re - examined the case . It concluded that the criminal inquiry had been carried out in compliance with the requirements of LAW , and that the impugned decision of DATE had been based on sufficient evidence duly assessed by the investigating authorities . The applicant ’s claim was accordingly rejected .

On DATE ORG upheld the abovementioned decision on appeal .


Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Prohibition of torture;Degrading treatment);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing)

Branko Lubarda;Georgios A. Serghides;Pere Pastor Vilanova

The applicant was born in DATE and lives in GPE , in GPE .

At the material time the applicant leased a flat in a block of flats in ORG ( a town in FAC ) . On DATE at TIME the applicant ’s neighbours called the police . They informed the police of loud screams that they had heard from the applicant ’s flat . CARDINAL police officers arrived at TIME and took the applicant to the LOC police station ( “ the police station ” ) .

According to a logbook of people taken to the police station , the applicant arrived at the station at TIME and was handed over to an investigator “ for further proceedings ” at TIME on DATE . According to the applicant , the investigator , PERSON . , repeatedly questioned him as “ a witness to the incident ” .

According to the applicant , he was released on DATE at TIME and summoned to appear before the investigator DATE at TIME The applicant alleges that he was under the constant supervision of police officers TIME on DATE and was not allowed to leave the police station .

NORP In DATE the applicant sued the police station , claiming compensation for unrecorded detention .

On DATE the ORG of LOC dismissed his claim .

On DATE the applicant lodged an appeal against that decision . However , he was required to correct some errors in his claim .

On DATE ORG returned the claim to the applicant , stating that he had failed to correct the errors in his claim .

NORP The applicant did not lodge an appeal against that decision .

On DATE the investigator opened a criminal investigation into an offence of rape . The applicant formally became a suspect . On DATE the investigator arrested him and drew up formal records of his arrest . DATE and DATE the applicant was kept in the temporary detention centre of the LOC police station ( “ the ORG ” ) .

The applicant provided the following description of the conditions in the ORG . He was held in cell no . CARDINAL measuring QUANTITY m. The cell housed CARDINAL inmates who took it in turns to sleep . The overcrowding caused a lot of conflict and tension between the inmates .

The window of the cell measured QUANTITY and was covered with metal blinds blocking access to daylight and fresh air . There was no ventilation in the cell . The lack of air was aggravated by the GPE smoking .

There was no sink with a tap or toilet . The inmates had to use a bucket , which smelled very bad and was only emptied once DATE in the morning . The bucket was not separated from the main area . The dining table was QUANTITY away from the bucket . The detainees were provided with meals once a day . The quality of the food was completely unsatisfactory . There was not enough drinking water for everybody .

The detainees were allowed to take a shower once DATE for TIME , and there were QUANTITY shower heads for QUANTITY to QUANTITY people . The drains in the shower room did not work , and the water temperature was not adjustable . There was no changing room , the detainees had to undress before the shower and dress after it in a corridor . Only twice during the applicant ’s detention in the ORG was he allowed to have outdoor exercise .

The ceiling of the cell was covered with mould . The cells were infested with bugs , lice , cockroaches and rats , and the administration did nothing to disinfect the facility .

It was cold in DATE ( there was a maximum temperature of CARDINAL ) and hot in DATE ( a maximum temperature of CARDINAL˚C ) .

The detainees were provided with neither bedding nor items of personal hygiene . They were also unable to buy them in the ORG . Mattresses had tar stains , and there was no possibility to wash clothes . Inmates were not provided with newspapers , reading material , or any information concerning their rights . The applicant was held in a cell with persistent offenders and ill persons .

On DATE the ORG convicted the applicant of rape and sentenced him to DATE imprisonment in a “ strictregime correctional colony ” .

On DATE ORG upheld the judgment of DATE on appeal . DATE and DATE the applicant served his sentence in correctional colony IK-CARDINAL located in LOC , in FAC .

The applicant provided the following description of the conditions of his detention in the correctional colony , and submitted a detailed plan of the accommodation , with a description . The dormitory where he lived consisted of CARDINAL sections measuring CARDINAL and QUANTITY m respectively and accommodated CARDINAL individuals .

NORP The sanitary facilities were extremely busy : all the detainees had to use CARDINAL taps and CARDINAL toilets . There was not enough water . Water was only available from TIME and from TIME While there was no running water , the detainees had CARDINAL water tanks at their disposal – one which contained drinking water and the other which contained water which was not drinkable . DATE , they could use QUANTITY of drinking water and QUANTITY of water which was not drinkable . This was clearly not enough , since the water in the tanks would be used up by TIME The toilets smelled extremely unpleasant , since there was no water to flush them after TIME

The floor of the dormitory was based on a frame made of used railway sleepers impregnated with creosote . It smelled so strongly that the detainees had to leave the windows open permanently , even in DATE , to get rid of the smell . The smell caused headaches and the open windows caused colds . The roof of the dormitory had CARDINAL visible leaks and there would be puddles on the floor if it rained . The dining room in the dormitory measured QUANTITY m and was equipped with CARDINAL electric stove with CARDINAL burners , CARDINAL refrigerator and CARDINAL sockets . The dormitory was infested with rats .

The detainees were allowed to take a shower once DATE for TIME , and there were QUANTITY shower heads for CARDINAL people . Just before the applicant ’s release , CARDINAL extra shower heads were installed , but the time for washing was reduced to TIME .

According to the applicant , in DATE the detainees were provided with DATE clothes only at DATE when the temperature dropped below minus CARDINAL˚C.

As regards the conditions of the applicant ’s detention in IK-CARDINAL in LOC , the Government submitted information which can be summarised as follows :

They also submitted that the toilets had been separated from the canteen and dormitory , and the units had been naturally ventilated and regularly disinfected . No failures in the water or electrical supply system had been identified . Detainees had taken showers DATE and had been provided with food and clothes “ in accordance with the established schedule ” .

On an unspecified date in DATE , while serving his sentence in the correctional colony , the applicant brought civil proceedings against the ORG police station and ORG , seeking compensation in respect of non - pecuniary damage resulting from the poor conditions of his detention in the ORG in DATE . The applicant was not represented in those proceedings .

On DATE ORG dismissed the applicant ’s claim in his absence .

On DATE the applicant lodged an appeal against the decision of DATE . He complained in particular that he had not been allowed to personally address the court , despite a request he had made to this effect , and he asked the appeal court to arrange for him to attend the appeal hearing .

On DATE ORG upheld the decision of DATE on appeal . It stated that the law did not make provision for transporting detainees to a civil court hearing .