George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Nona Tsotsoria;Päivi Hirvelä;Zdravka Kalaydjieva

NORP The applicant , PERSON , is a NORP national , who was born in DATE and is currently serving a prison sentence in GPE . The applicant , who had been granted legal aid , was represented before the Court by PERSON , a lawyer practising in GPE .

ORG ( “ the Government ” ) were represented by their Agent at the time , PERSON , and subsequently by PERSON .

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

On DATE the applicant was arrested on suspicion of murder .

On DATE ORG ( PERSON ) convicted the applicant of murder and burglary and sentenced him to CARDINAL years’ imprisonment .

On DATE ORG of ORG ( PERSON tiesas GPE tiesu palāta ) upheld the judgment of the first - instance court .

The applicant lodged an appeal on points of law . He noted that the appellate court had not considered his complaint that his health was deteriorating . The applicant argued that he had contracted an incurable disease in detention , that he could not abide by prison rules because of the deteriorating state of his health , and that he was not receiving the medication he needed . Referring to section CARDINAL ( CARDINAL ) of LAW , he asked for his sentence to be reduced .

On DATE ORG of the ORG of ORG ( PERSON Tiesas ORG departaments ) in a preparatory meeting rejected the applicant ’s appeal on points of law . The ORG noted that it did not have competence to release the applicant from serving his sentence . It referred to section CARDINAL ( CARDINAL ) of LAW and section CARDINAL of the former Code of Criminal Procedure .

On DATE the applicant was transferred to FAC ( PERSON centrālcietums ) .

On DATE the applicant underwent a medical examination ; a note was made that he smoked and drank alcohol , but did not use narcotics ; he also had several tattoos . He was prescribed fluorography , and no pathology was found . A blood test ( for HIV and syphilis ) was carried out ; its results were negative . He was found to be “ practically healthy ” .

On DATE the applicant complained to a prison doctor of a cough , cold symptoms and sweating ; he was diagnosed with rhinopharyngitis . He was prescribed a DATE course of medication .

NORP On DATE and DATE the applicant complained about a cough and cold symptoms . He was diagnosed with rhinopharyngitis and pharyngitis respectively on those occasions , and some medication was prescribed , a DATE course each time .

On DATE the applicant was transferred to FAC ( NORP cietums ) . Although there is no information as to whether a medical examination was carried out when the applicant was admitted to the prison , or whether any tests were done , the applicant ’s medical record contains a note made by a prison doctor on the date of admission that the applicant had no complaints , accompanied by the results of a basic health check ( blood pressure readings and visual inspection ) . The applicant was found to be “ practically healthy ” .

On DATE the applicant received some vitamins ( CARDINAL per day ) .

On DATE the applicant ’s lungs were examined ; no pathology was found .

On DATE the applicant complained of stomach pain : an examination was ordered , but no pathology was found . He was prescribed a DATE course of medication .

On DATE the applicant complained of skin problems . He was diagnosed with a skin disease and prescribed a DATE course of medication . At the same time the applicant requested a blood test for the hepatitis C virus ( ORG ) at his own expense .

On DATE the test detected the presence of ORG antibodies ( anti - HCV ) in the applicant ’s blood .

On DATE and DATE the applicant complained of a cold ; a prison doctor concluded that he had pharyngitis . He received a DATE and a DATE course of medication ; DATE he was prescribed multivitamins .

On DATE the applicant complained of stomach pain and a prison doctor concluded that he had ORG . He received a DATE course of liver medication ( PERSON ) , which was extended for DATE with another medication ( PERSON ) on DATE .

On DATE the applicant was transferred to FAC ( PERSON cietums ) to serve his sentence .

On DATE the applicant underwent a medical examination . The applicant was found to be “ practically healthy ” . A note was made that the applicant was infected with the hepatitis C virus .

On DATE the applicant visited a prison doctor to request treatment for the ORG ( PERSON or PERSON forte ) . His status of health was noted as satisfactory , and it was explained to him that ORG treatment could only be carried out at his own expense .

On DATE the applicant received a DATE course of liver medication ( PERSON ) .

On DATE and DATE the applicant requested that an examination and a liver biopsy be carried out . They were refused , and on the latter date a note was made in his medical record that he had no objections to this decision .

On DATE the applicant asked the head of ORG for an in - depth ORG examination and treatment . It was explained to the applicant that in accordance with domestic law ( regulation no . CARDINAL , paragraph CARDINAL ) these could only be provided at his own expense . The applicant disagreed , and took the view that the treatment should be paid for by the ORG . The applicant was prescribed tests ( fibrogastroscopy , blood and urine tests ) and consultations with a general practitioner and a psychiatrist .

On DATE the applicant consulted a psychiatrist and was prescribed a DATE course of medication .

On DATE the applicant was prescribed a DATE course of medication for bile duct problems .

On DATE the applicant was prescribed a DATE course of medication for dermatitis .

On DATE the applicant was prescribed skin medication at his own expense .

On DATE the applicant underwent a prophylactic check - up and a DNA sample was taken from him .

On DATE the applicant complained of headache , flu , cough and fever . He was diagnosed as suffering from an upper respiratory tract infection and prescribed a DATE course of medication .

On DATE another prophylactic check - up was carried out . The conclusion was that he was “ practically healthy ” .

On DATE the applicant underwent lung screening ; no pathology was found .

On DATE the applicant complained of fever , headache , and a cough ; he was diagnosed with an upper respiratory tract infection and prescribed a DATE course of medication .

On DATE the applicant was examined by an oculist .

On DATE the applicant was diagnosed as suffering from an upper respiratory tract infection and was prescribed a DATE course of medication .

On DATE the applicant underwent a prophylactic check - up . The conclusion was that his state of health was satisfactory .

On DATE the applicant was prescribed a DATE course of medication for tracheitis .

On DATE another medical examination was carried out and tests were taken .

On DATE the NORP Infectious Diseases Centre ( Latvijas NORP centrs ) replied to the applicant that they could not help if they did not have any medical documents describing the applicant ’s illness . The applicant had to approach his prison doctor , who could assign , within the limits of available resources , appropriate examinations to verify any diagnosis .

On DATE the applicant submitted a complaint to the Minister of ORG , with a copy to the Minister of Health and ORG . He stated that he had never used narcotics in his life but that soon after imprisonment he had been “ infected with hepatitis C ” . He requested that the ORG re - establish a programme for detecting and treating infectious diseases and that he be allowed to use his own darning needles , slippers and scissors in prison .

On DATE ORG replied that the applicant was not allowed to have these items , pursuant to domestic law . They noted that the applicant did not have objective symptoms requiring treatment for hepatitis C at that time . A reference was made to regulation no . CARDINAL , which allowed him to purchase medication at his own expense .

On DATE ORG replied that a diagnosis of the hepatitis C virus was generally confirmed in the NORP Infectious Diseases Centre , using a range of examinations such as blood tests to detect if the virus was in the body or if only its antibodies were present . If the virus was detected , its genotype and activity were identified . Liver puncture biopsy was further necessary to establish the range and depth of inflammation . Only when the hepatitis C virus diagnosis had been confirmed could a decision be made as regards treatment . From DATE medication was available in GPE to effectively ( but not PERCENT ) treat chronic hepatitis C , if a patient did not have any other health problems or contraindications . With reference to regulation no . CARDINAL , paragraph CARDINAL , it was explained that ORG was responsible for ensuring that medication was available to treat patients with chronic hepatitis C in prisons , therefore the applicant was advised to enquire about it there . At the same time , ORG advised that a prison doctor was responsible for assessing convicted ORG state of health , for providing medical care in accordance with the established diagnosis , and for prescribing medicine within the allocated budgetary resources . If an in - depth examination and special treatment was necessary , a specialist doctor ( a hepatologist ) from the NORP Infectious Diseases Centre was invited to assess the patient ’s state of health and draw up a treatment plan . The applicant was advised to consult a prison doctor .

On DATE ORG replied that , taking into account that the applicant was suffering from a serious infectious disease ( hepatitis C ) , he could require the relevant prison authority to take the necessary prophylactic measures if there was a risk of the disease being spread . They also referred to paragraph CARDINAL of regulation no . CARDINAL .

On DATE the applicant submitted a complaint to ORG , with a copy addressed to the prosecutor ’s office and ORG . He noted that he had never used narcotics in his life but that soon after imprisonment he had been “ infected with hepatitis C ” . He did not request to be released on health grounds , but rather that his state of health be fully assessed by specialists from the NORP Infectious Diseases Centre , that his sentence be reduced , and that he be transferred to an open prison .

On DATE a judge sent those complaints back to the applicant with an explanation of the procedure for release on health grounds under LAW .

On DATE the prosecutor ’s office forwarded the applicant ’s complaint to the head of Jelgava Prison in connection with assessment of his health and his request for his sentence to be reduced .

DATE . On DATE ORG replied that in accordance with regulation no . CARDINAL convicted persons received minimum standard of health care . Assistance that was not paid for from the ORG budget was provided at their own expense . It was noted that the applicant had received the minimum standard of health care , including hepatoprotectives . An in - depth examination was not included in the minimum standard and was not paid for by the ORG . In addition , as the applicant ’s state of health was satisfactory there was no need for the in - depth examination .

On DATE , in response to another complaint by the applicant , ORG noted that a doctor was responsible for patient examination , assessment of state of health and for providing treatment ; they also repeatedly explained the minimum standard of health care in prisons and that the in - depth examination was not included in the minimum standard ( regulation no . CARDINAL ) . This examination and any further treatment could be provided at his own expense ( paragraph CARDINAL ) .

On DATE ORG responded that only a doctor can establish diagnosis and choose the most adequate therapy . They reiterated that the minimum standard did not include an in - depth examination or treatment ; these could be provided at his own expense in accordance with regulation no . CARDINAL ( paragraph CARDINAL ) .

On DATE the NORP Infectious Diseases Centre informed the applicant that they provided treatment for chronic hepatitis C , but that they were not responsible for arranging for the provision of health care in prisons . The prison doctor was responsible for the applicant ’s health care . They informed the applicant about the following expenses in relation to laboratory examinations related to hepatitis C : LVL CARDINAL.CARDINAL , CARDINAL and CARDINAL for ORG RNA , ORG viral load and ORG genotype respectively ( DATE , CARDINAL and CARDINAL ( ORG ) ) .

On DATE ORG replied to the applicant ’s enquiry about convicted PERSON health care . They relied on regulation no . CARDINAL and explained that primary medical care was provided by prison doctors and that secondary medical assistance was available upon prescription by prison doctors . The applicant was advised to contact prison doctor . The possibility of making a complaint to ORG ( Veselības inspekcija ) if a prison doctor did not carry out his or her professional duties was explained to him .

Section CARDINAL ( CARDINAL ) of LAW ( PERSON ) provides that in cases of inadequate performance of professional duties by a medical professional resulting in “ serious ” ( smagi ) or “ moderate ” ( vidēja smaguma ) “ bodily injury ” ( miesas bojājumi ) those professionals may be held criminally responsible . In NORP criminal law bodily injury is defined as anatomical damage to , or functional impairment of , a person ’s tissue , organs or systems caused by physical ( mechanic , thermic , electric , acoustic , radiation - related , chemical , biological ) or psychological effects or interference ( Annex no . CARDINAL to the Law on Entry into Force of the Criminal Law ) .

Section CARDINAL ( CARDINAL ) of LAW provides that in the event of inadequate performance of professional duties by a medical professional resulting in a person ’s death or infection with HIV , that professional may be held criminally responsible .

Criminal responsibility for inadequate performance of professional duties by a medical professional resulting in infection with the hepatitis B or C viruses was established by way of amendments to section CARDINAL ( CARDINAL ) of the Criminal Law effective from DATE .

Section CARDINAL of the Criminal Law provides criminal responsibility for wilful infection with HIV .

Criminal responsibility for wilful infection with the hepatitis B or C viruses was established by way of amendments to section CARDINAL of the Criminal Law effective from DATE .

Finally , with effect from DATE criminal responsibility for infection with a dangerous disease resulting in serious bodily injury or death was established ( section CARDINAL ) .

According to section CARDINAL ( CARDINAL ) of LAW if a convicted person has fallen ill with a severe and incurable illness after the pronouncement of a judgment , a court may release that person from serving the remainder of the sentence .

According to section CARDINAL of LAW ( ORG izpildes kodekss ) , if a convicted person has fallen ill with a severe and incurable illness owing to which he or she is unable to serve the remainder of his or her sentence , the relevant penal institution has to order a medical examination and , on the basis of the results , make an application for release to the appropriate court .

The relevant part of section CARDINAL ( CARDINAL ) of LAW GPE likums ) , in force since DATE , provides that a judge may release a convicted person from serving the remainder of his or her sentence if that person has fallen ill while serving their sentence , taking into account the personality of the convicted person , the nature of the offence , and other circumstances . Before the entry into force of LAW , the relevant provision was contained in LAW kodekss ) .

Section CARDINAL of LAW ( PERSON likums ) , as in force at the material time , provided that ORG ( “ the MADEKKI ” ) was responsible for monitoring the professional quality of medical care in health - care establishments . With legislative amendments effective from CARDINAL DATE TIME that task was entrusted to ORG .

Under the relevant regulation of ORG ( no . CARDINAL ( DATE ) entitled “ PERSON aprūpes un darbspējas ekspertīzes kvalitātes kontroles inspekcijas nolikums ” ) , effective from DATE to DATE , CARDINAL of the main functions of the PERSON and its successor , ORG , was monitoring the professional quality of medical care in all health - care establishments regardless of their property type and subordination ( paragraph CARDINAL . ) . Their main tasks included carrying out examinations and providing opinions about the quality of medical care in all health - care establishments , monitoring compliance with the domestic law in health - care establishments and dealing with ( individual ) applications concerning medical care ( CARDINAL . , CARDINAL . and CARDINAL . ) . They had the right to request and receive from all health - care establishments or other persons medical documentation , information and documents necessary to carry out examinations , request and receive oral and written explanations from the person who provided medical care or who was responsible for compliance with the compulsory requirements in the institution , and examine cases of administrative offences and impose fines in accordance with LAW ( paragraphs CARDINAL . , CARDINAL . and CARDINAL . ) .

At the relevant time , under LAW the MADEKKI or subsequently ORG could impose a fine up to CARDINAL NORP lati ( ORG ) ( approximately LAW ) for breaches of the relevant medical care regulations , and up to LVL CARDINAL ( approximately ORG CARDINAL ) for a repeat offence . With effect from DATE this fine was increased to ORG ( approximately ORG CARDINAL ) and ORG CARDINAL ( approximately ORG CARDINAL ) .

In accordance with ORG . CARDINAL to regulation of ORG no . CARDINAL ( DATE ) , effective from DATE until DATE , the following outpatient laboratory tests were carried out free of charge , if prescribed by a general practitioner :

- anti - ORG test to establish the presence of antibody in blood serum ;

- anti - ORG ( ORG ) to confirm the presence of antibody in blood serum ;

- HCV RNA ( nucleic acid ) ( PCR – polymerase chain reaction ) test to determine the presence of the virus itself in blood serum ;

- anti - HCV IgM ( immunoglobulin M ) .

In accordance with paragraph CARDINAL . of this regulation , ORG was responsible for covering costs for medical care in prisons , apart from medical treatment for those suffering from tuberculosis and HIV / AIDS , which expenses were covered from the ORG budget .

DATE . In accordance with ORG . CARDINAL to regulation of ORG no . CARDINAL ( DATE ) , effective from DATE , the same outpatient laboratory tests were available free of charge as under regulation no . CARDINAL ( DATE ) at least until DATE , when amendments as regards the laboratory tests for hepatitis C were made .

Regulation of the Cabinet of Ministers no . CARDINAL ( DATE ) , in force at the material time and effective until DATE , provided as follows :

“ CARDINAL . Convicted persons shall receive the minimum standard of health care free of charge up to the amount established by ORG . In addition , ORG , within its budgetary means , shall provide convicted persons with :

NORP primary , secondary and tertiary ( in part ) medical care ;

emergency dental care ;

medical examinations / check - ups ;

NORP preventive and anti - epidemic measures ;

medication and injections prescribed by a ( prison ) doctor ; and

medical equipment .

Detainees shall receive medical care in accordance with paragraph CARDINAL of this regulation , excluding planned inpatient treatment ... Detainees shall be sent to receive inpatient treatment only in acute circumstances ...

NORP The prison authorities may agree with [ a civilian hospital or medical centre ] that the latter is to provide consultation and treatment at convicted PERSON ... own expense if they so wish . ”

Regulation of the Cabinet of Ministers no . CARDINAL ( DATE ) , effective DATE , provides as follows :

“ CARDINAL . [ Convicted persons and detainees ] shall receive free of charge in prison :

NORP primary medical care , but not scheduled / planned dental care ,

emergency dental care ,

NORP secondary medical assistance in emergency situations , as well as secondary medical assistance which is provided by prison doctors within their field of expertise ,

NORP the most effective and affordable medicine , prescribed by prison medical practitioners ...

Upon application by a [ convicted person or detainee ] , and with the approval of a prison doctor , the prison authorities may agree with [ a civilian hospital or medical centre ] that the latter is to provide consultations and treatment outside prison territory . Such consultations and treatment are to be paid for by the [ convicted person or detainee ] , including transport and security - related expenses . ”

On DATE ORG ( Administratīvā rajona tiesa ) ( in case no . ACARDINAL ) adopted a judgment concerning a MADEKKI decision , whereby no shortcomings had been found in medical care as regards the treatment of hepatitis C in a prison . The claimant in that case , by instituting the administrative proceedings , had insisted that he had to be tested for hepatitis C virus ( and not only its antibodies , anti - HCV ) and that he should receive treatment . The claimant sought the quashing of the DATE decision and compensation for distress in the amount of ORG CARDINAL,CARDINAL as well as compensation for pecuniary loss in the amount of ORG CARDINAL ( ORG CARDINAL for the costs of laboratory examinations and ORG for the costs of treatment ) and for physical damage in the amount of ORG CARDINAL,CARDINAL .

The court found that the PERSON decision ( the assessment of the quality of medical care ) had constituted “ unlawful action by a public authority ” , but did not award any compensation . This judgment took effect on DATE .

The court established the following facts :

“ [ CARDINAL ] In response to the claimant ’s application , on DATE [ the NORP PERSON , hereinafter DATE the ORG ] stated that prison doctors were responsible for providing medical care in prisons , that claimant was obliged to consult them , and that the ORG did not have documents attesting that the claimant was suffering from a chronic condition [ hepatitis C virus , hereinafter DATE ] ...

[ CARDINAL.CARDINAL ] On DATE [ the claimant was informed that ] ORG and the ORG specialists did not have confirmed data that the claimant was suffering from chronic ORG , but that they had data indicating that the claimant had been in contact with ORG . Tests for ORG to confirm or exclude [ the diagnosis ] of chronic ORG [ did ] not correspond to the notion of “ acute circumstances ” laid down in DATE and CARDINAL of regulation no . CARDINAL .

[ CARDINAL ] The claimant lodged an application with [ the PERSON ] complaining about the refusal to treat him for ORG in FAC and asking for an assessment of the quality of medical care provided to him ...

[ CARDINAL.CARDINAL ] On DATE the [ MADEKKI ] drew up a report [ in case no.CARDINAL - CARDINAL-K-CARDINAL ] about the claimant ’s medical care in prison . The report ’s conclusions indicate that on DATE the ORG laboratory established that a positive result for ORG antibodies ( anti - HCV ) test in the claimant ’s body had been established and that he had HIV infection in stage “ C ” ( Aids ) ; it was also noted that he regularly received antiretroviral therapy for the latter .

[ CARDINAL ] [ On DATE ] administrative offence proceedings in case no.CARDINAL - CARDINAL-K-CARDINAL were terminated ...

[ CARDINAL.CARDINAL ] Disagreeing with this decision , the claimant lodged a complaint against it with the head of [ the MADEKKI ] . By a decision [ of DATE , no.CARDINAL - CARDINAL-K-CARDINAL/CARDINAL ] , the decision to terminate administrative offence proceedings was left to stand and his complaint was dismissed .

[ CARDINAL ] On DATE ORG ... in response to the claimant ’s request for ORG CARDINAL,CARDINAL to be allocated from the budget for his ORG treatment , noted that there were no resources in its budget that could be allocated to treat him ...

[ CARDINAL ] On DATE ORG [ in response to a repeated request ] explained that ORG treatment with antivirus medication was prescribed after an in - depth examination and that specific therapy ... was assigned only according to medical indications . In order to ensure ORG - guaranteed medical care pursuant to regulation no . CARDINAL for persons in prisons taking into account their needs , these issues have been included in the Green Paper on ORG .

[ CARDINAL.CARDINAL ] On DATE the claimant lodged a claim with FAC against ORG seeking compensation for pecuniary loss in the amount of ORG CARDINAL ( ORG CARDINAL for the costs of laboratory examinations and ORG for the costs of treatment ) and for physical damage in the amount of ORG CARDINAL,CARDINAL . These civil proceedings ... were terminated with a judgment of DATE , whereby his claim was dismissed . ”

As regards the claimant ’s request for the PERSON decision to be quashed and for compensation for distress , the court made the following findings :

“ [ CARDINAL ] ... The claimant ’s subjective right to request [ the PERSON ’s assessment of quality of medical care provided in prisons ] is established under LAW of LAW ...

[ CARDINAL ] As established by ORG of the ORG of ORG in its judgment of DATE ... in case SKA-CARDINAL/CARDINAL ( hereinafter DATE the ORG ’s judgment ) , the law does not specify the purpose of the [ MADEKKI ] assessment [ of the quality of medical care ] . In examining [ the provisions of the Medical Treatment Law ] in their entirety , the ORG considers that it has several purposes DATE to improve the quality of medical care , a patient can use [ a MADEKKI ] assessment as CARDINAL piece of evidence in another set of proceedings concerning medical care , and it gives a person the opportunity to ascertain the quality [ of medical care ] provided by a given medical institution or doctor when a choice is being made . [ A PERSON ] assessment of the quality of medical care is not binding on anyone , but as a person has a right to receive [ such an assessment ] , it constitutes an action of a public authority .

The [ MADEKKI ’s ] obligation to carry out the assessment pursuant to section CARDINAL of LAW was set out in regulation ORG ( no longer effective from DATE ) , paragraph CARDINAL . which at the [ relevant ] time provided that CARDINAL of [ the PERSON ’s ] tasks in carrying out its functions [ was ] to carry out examinations and provide opinions about the quality of medical care ... in [ all ] health - care establishments ...

[ CARDINAL.CARDINAL ] In accordance with order no . CARDINAL of ORG DATE ... [ the MADEKKI ] was merged with ORG and ORG , and ... ORG was established .

Pursuant to section CARDINAL of LAW , as currently effective , ORG is responsible for monitoring of the professional quality of medical care ... in health - care establishments .

Accordingly , at present the monitoring of the quality of medical care provided to the claimant comes within the competence of ORG .

Taking into account that the assessment of the quality of the claimant ’s medical care within these administrative offence proceedings as expressed in [ the MADEKKI ] report constitutes an action of a public authority , the court , pursuant to LAW , has to determine whether the action of a public authority complies with procedural and formal criteria and whether it corresponds to provisions of substantive law .

[ CARDINAL ] According to the facts of the case , by lodging the request for an assessment of the quality of his medical care the claimant insisted that he be immediately tested for possible infection with ORG and that he be treated ...

It can be established from the letters sent by the ORG that its doctors , following regular examinations of the claimant ’s state of health in connection with his HIV infection , have established the necessary treatment plan – antiretroviral therapy with efavirenz , zidovudine and lamivudine ... , and have regularly informed the head of ORG about it ; however , they have left the claimant ’s infection with ORG unattended to and have not taken measures in accordance with LAW they have not arranged for the necessary laboratory examinations with a view to arriving at an ORG - related diagnosis and treatment .

The claimant contends that the prison where he is being held is under an obligation to provide an in - depth examination of his state of health in connection with ORG .

At the hearing , a specialist doctor of the [ ORG explained that any assignment to undergo a particular examination was issued only in circumstances where there are recommendations for such an examination to be carried out . If a doctor considers that a person ’s request for examination is unsubstantiated , he or she may have such an examination at his or her own expense . This procedure applies to all people , with no exceptions .

The court considers this view unfounded , as health - care practitioners’ obligation to provide immediate diagnosis and treatment for a person who is infected with ORG arises from provisions of LAW . As regards convicted persons , according to paragraph CARDINAL of regulation no . CARDINAL they receive the minimum standard of health care free of charge ... and also , within budgetary means ... preventive and anti - epidemic measures ...

It appears from [ the case material ] that measures envisaged in section CARDINAL ( CARDINAL ) ( CARDINAL ) of LAW were not carried out in respect of the claimant until DATE .

Pursuant to section CARDINAL(CARDINAL ) of LAW a doctor , within the scope of his / her professional activities , performs illness prophylaxis , diagnosis , treatment and rehabilitation of patients ; evaluates illnesses and the functional restrictions to the body caused thereby in terms of activity and participation ; and examines the cause of illnesses and the prophylactic possibilities .

Taking into account the aforementioned , the court finds that in the present circumstances the conclusions of [ the MADEKKI ] that no violations had been detected in the patient ’s medical care , that the patient had been appropriately examined in response to his complaints , diagnosed and received medical care in accordance with regulation no.CARDINAL were unjustified , since in connection with his ORG infection the necessary laboratory tests with a view to specifying diagnosis had not been set up and no treatment had been prescribed .

[ CARDINAL.CARDINAL ] ... The court concludes that DATE the patient did not receive compensation for expenses in relation to treatment of diseases triggered by ORG infection ... ”

As regards specifically the claimant ’s request for compensation for distress , the court left it without examination , as he had not requested it in the pre - trial proceedings . The court made the following findings :

“ [ CARDINAL ] It appears from the complaint [ to the head of the PERSON ] that the claimant did not request compensation for distress ...

In accordance with section CARDINAL ( CARDINAL ) of LAW the court leaves an application without examination ( atstāj pieteikumu bez izskatīšanas ) if the claimant has not complied with preliminary extrajudicial examination procedures prescribed by law . Pursuant to section FAC the same PERSON ] , if an application is left without examination , the claimant may submit the application to the court anew in compliance with the procedure prescribed by law . ”

DATE . As regards the claimant ’s request for compensation for pecuniary loss and physical damage , the court considered that these claims had already been decided in the civil proceedings before GPE and dismissed . It accordingly terminated administrative proceedings in this respect , as they had the same subject matter and were based on the same facts as had already been examined by another court .

The same claimant , after having properly exhausted pre - trial proceedings , instituted another set of administrative proceedings ( no . ORG ) requesting compensation for distress caused by an “ unlawful action of a public authority ” . On DATE ORG granted that claim in part and imposed an obligation on ORG ( the successor to PERSON ) to issue a written apology to the claimant . This judgment took effect on DATE .

As regards compensation for distress in the amount of ORG CARDINAL , the court made the following findings :

“ [ CARDINAL ] Pursuant to section CARDINAL of the Administrative Procedure Law everyone has the right to receive appropriate compensation for pecuniary loss ( mantiskais zaudējums ) and personal harm ( personiskais kaitējums ) , including distress ( morālais kaitējums ) , caused by an administrative act or action of a public authority .

According to section CARDINAL ( CARDINAL ) of the same PERSON , the relevant public authority may comply with the obligation to compensate ( atlīdzināšanas pienākums ) by restoring the situation which existed before the damage was caused , or if it is not fully or partly possible or adequate , by paying appropriate monetary compensation ( atlīdzinājums naudā ) .

According to section CARDINAL of the Law on Compensation for Damage Caused by ORG ( hereinafter DATE the Law on Compensation for Damages ) , distress within the meaning of this PERSON is personal harm in the form of human suffering that has been caused by a significant [ and ] unlawful interference ( būtisks , prettiesisks aizskārums ) with rights or legal interests of an individual .

Section CARDINAL ( CARDINAL ) of the Law on Compensation for Damages provides that personal harm and distress is determined in proportion to the significance of rights or legal interests interfered with and the severity of the specific interference , taking into account the legal and factual grounds and the reasons for the institution ’s action , the victim ’s actions and share of the responsibility , as well as other significant circumstances of the particular case . According to section CARDINAL ( CARDINAL ) , monetary compensation for distress is determined in proportion to the severity of the interference . LAW ( CARDINAL ) provides that an institution may issue a written or public authority , as independent or supplementary redress [ for damage ] , in circumstances where interference is not severe .

It follows from the above - mentioned legal provisions that the ground for compensation for distress is not [ interference ] but rather significant [ and ] unlawful interference with rights or legal interests . In turn , if such [ interference ] has been established , compensation is determined in proportion to the severity of the harm engendered . Harm may be redressed by restoring the situation , issuing an apology or granting monetary compensation . Therefore , compensation for distress , its type and amount are determined by the significance of the interference and the severity of the harm engendered . Accordingly , if significant interference has occurred but no severe harm has been done , all types of the above - mentioned redress may generally [ be afforded ] . Hence also in such circumstances in determining appropriate compensation it is necessary [ that ] harm and compensation be proportionate . ”

The court then went on to consider that the “ unlawful action of a public authority ” ( the PERSON decision ) did not constitute significant interference with the claimant ’s rights and legal interests that would have had any influence on his right to receive medical care in prison and would have called for monetary compensation , in addition to any harm to life or serious harm to health . The court ’s reasoning was as follows :

“ [ CARDINAL ] ... The court considers that action of a public authority – the PERSON decision in the present case , where it assessed the quality of medical care , does not trigger any legal or factual consequences for the claimant ...

The ORG has on several occasions pointed out that a MADEKKI assessment [ of the quality of medical care ] is CARDINAL of the possible pieces of evidence in a particular case , for example as concerns proceedings for compensation for damage to health . However , a MADEKKI assessment plays neither a decisive nor a determining role in deciding other matters ( see the ORG ’s decisions of DATE in case SKA-CARDINAL/CARDINAL and the ORG ’s judgment of CARDINAL DATE in case PERSON ) . Therefore , the fact in itself that the PERSON has not found any shortcomings in the medical care provided in a prison can not stand in the way of a decision on a question , for example , relating to the scope of medical care in prison or its availability .

The court can not establish , either from the case material or from the claimant ’s statements ( answers to the court ’s questions during the hearing ) ... that the claimant contested an action of a public authority ( the particular prison ) of not providing him with medical care as required by law ...

[ CARDINAL ] ... In determining the type and amount of compensation for distress , the court finds that the institution ’s action of issuing the DATE report and giving its assessment about treatment in prison could not harm the claimant ’s life or seriously harm his health ...

The PERSON report – the assessment of the quality of medical care DATE did not directly harm the claimant ’s health to the extent that the court should have set monetary compensation up to ORG pursuant to section DATE ) of the Law on Compensation for Damages ...

However , in determining whether distress has been caused to the claimant by [ the fact ] that the institution in its report did not provide a full assessment of the quality of medical care , as it has been found ... in DATE judgment , and taking into account the legal characteristics of the report , the court considers that pursuant to section DATE ) of the Law on Compensation for Damages written apology may be considered independent redress . ”


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)

NORP 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 . Some applicants also raised other complaints under the provisions of the Convention .


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

Dmitry Dedov;Elisabeth Steiner;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque

The applicant was born in DATE and lives in GPE .

On DATE criminal proceedings were instituted against the applicant on suspicion of large - scale fraud .

On DATE the applicant was arrested and remanded in custody .

On DATE and DATE charges were brought against the applicant .

On DATE the criminal case was submitted to ORG ( “ the ORG ” ) for trial .

On DATE the first hearing was held . It was presided over by judge A.

On DATE the applicant was released from custody .

On DATE the case was transferred to judge PERSON and , pursuant to LAW , the trial was restarted .

DATE and DATE and DATE and DATE the hearings were adjourned on CARDINAL occasions : on CARDINAL occasions due to the non - attendance of the accused , their representatives and the witnesses , and on QUANTITY occasions , from DATE to DATE and from DATE to CARDINAL DATE , following requests from the applicant for more time to study the case file .

In the meantime , on DATE , an unrelated criminal case was opened against the applicant on suspicion of storing firearms and narcotic drugs . He was again remanded in custody on DATE . On DATE ORG convicted the applicant of storing firearms and narcotic drugs and sentenced him to DATE imprisonment .

On DATE judge PERSON went on maternity leave , and on CARDINAL DATE the initial case was transferred to judge PERSON The trial was restarted .

DATE the hearings were adjourned on QUANTITY occasions due to the non - attendance of the participants in the trial .

On DATE judge PERSON resigned , and on DATE the case was transferred to judge PERSON The trial was again restarted .

On DATE judge PERSON resigned and the case was transferred to judge DATE The trial was restarted for the fourth time .

DATE the hearings were adjourned on CARDINAL occasions due to the non - attendance of the participants in the trial .

On DATE ORG found the applicant guilty of complicity in large - scale fraud and sentenced him to DATE and CARDINAL months’ imprisonment . The final sentence under both verdicts was set at DATE imprisonment .

On DATE ORG upheld the judgment on appeal .

The applicant was detained in GPE remand prison GPE from DATE to CARDINAL DATE , from DATE to DATE , from DATE to CARDINAL DATE , from DATE to DATE and from DATE to DATE . He submitted that the cells had been severely overcrowded and in a poor sanitary condition .

The cell where the applicant was held most recently , measuring QUANTITY and equipped with CARDINAL bunk beds , accommodated CARDINAL inmates at any given time . The inmates were obliged to take turns to sleep .

NORP The toilet in the corner of the cell ( a hole in the floor measuring CARDINAL in diameter ) , elevated above the floor by QUANTITY and separated by a QUANTITY partition , offered no privacy . It had no flushing system .

The cell was not equipped with a washstand . Instead , the inmates had to use the water running from a tap over the toilet .

The dining table was situated a metre away from the toilet . It could seat CARDINAL inmates . The rest of the inmates had to eat sitting on the concrete floor .

NORP The food was of low quality . The drinking - water tanks were placed on the floor .

The cell was lit around the clock by CARDINAL CARDINAL-watt filament lamps . It was poorly ventilated . The air was thick with the stench of tobacco , laundry and the toilet .

The cell was infested with insects and rodents .

The applicant was allowed to take a TIME shower once DATE .

The exercise yards were unequipped and too small to accommodate all the detainees properly .

The applicant twice contracted tuberculosis while being detained in GPE IZ-CARDINAL/CARDINAL . His eyesight deteriorated .

The applicant ’s attempts to challenge the conditions of his detention before various domestic authorities yielded no result .

The applicant was transported from the remand prison to the courthouse and back CARDINAL times DATE . Prisoners were transported between the remand prison and the courthouse in a prison DATE a metal freight vehicle comprising CARDINAL compartments : CARDINAL designed for CARDINAL inmates and the third CARDINAL for single occupancy . The van had no windows and offered no access to natural light or air . It had no artificial lighting or ventilation either . There were no seat belts or other safety equipment to prevent inmates from falling and hitting themselves against the walls . It was stiflingly hot in the van in DATE and freezing cold in DATE .

There were CARDINAL cells in the holding area of ORG where the applicant was taken . Each cell measured QUANTITY and accommodated CARDINAL inmates . The cells were equipped with CARDINAL bench each , which could seat CARDINAL inmates . Those suffering from hepatitis , tuberculosis , HIV and other diseases were placed together with the rest of the inmates . On each occasion the applicant spent CARDINAL or eight hours in such conditions .


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

Iulia Motoc;Marko Bošnjak;Paulo Pinto De Albuquerque

The applicant was born in DATE and is currently serving a prison sentence in FAC .

In DATE the applicant was convicted of human trafficking and sentenced to CARDINAL years’ imprisonment .

He was detained in several detention facilities . However , in the present application he only complained about the conditions of his detention in ORG and about the fact that he had not been assigned a personal care assistant in ORG and ORG DATE and DATE .

The applicant was detained in FAC on several occasions , for a period of DATE : DATE , DATE and DATE , DATE and DATE , as well as from DATE and DATE .

The applicant alleged that he had been kept in conditions of poor hygiene in overcrowded cells . He had shared a cell of QUANTITY with CARDINAL other detainees . Moreover , he submitted that he had shared his cell with smokers despite the fact that he was a nonsmoker . The food had also been of very poor quality .

According to the information provided by ORG and forwarded to ORG , the applicant was held in the following cells :

- cells E CARDINAL.CARDINAL , E CARDINAL.CARDINAL . and E CARDINAL . , all measuring QUANTITY . m , containing twentysix beds ( that is , QUANTITY . m per bed ) , occupied by CARDINAL to twentysix detainees ;

- cell E CARDINAL.CARDINAL . , measuring QUANTITY m , containing CARDINAL beds ( that is , QUANTITY . m per bed ) , occupied by CARDINAL detainees ;

- and cell E CARDINAL.CARDINAL , measuring QUANTITY m , containing CARDINAL beds ( that is , QUANTITY . m per bed ) and occupied by QUANTITY detainees .

The Government did not provide any information concerning either the exact number of detainees who had occupied the cells or the time spent by the applicant in each of the above - mentioned cells .

The detainees were provided with cleaning materials and personal hygiene products and they were responsible for cleaning the cells . Specialist contractors carried out work to eradicate rodents and insects whenever it was considered necessary . The detainees were entitled to CARDINAL showers per week .

NORP The applicant received a special diet for his medical condition ( see paragraph CARDINAL below ) .

On DATE a medical commission issued a certificate attesting that the applicant had been classified as a person with a permanent , severe physical disability on account of his visual impairment . The medical commission granted the applicant the right to a personal care assistant .

The applicant alleged that no special arrangements had been made for him as a person with severe visual impairment in GPE and ORG DATE and DATE .

NORP Moreover , he contended that he had not been assigned a personal care assistant and had been permanently subjected to humiliating and degrading remarks from his cellmates , the same people to whom he had to appeal for assistance . As he had had no personal assistant he had not been able to benefit from DATE walks and had been dependent on the other inmates to be moved around the prison .

He had only received assistance from inmates in the facility in exchange for cigarettes and money . The inmates had refused to help him unless they were paid . The administration had not taken any steps to rectify the situation .

The applicant submitted copies of several requests he had lodged with the prison authorities on DATE , DATE and DATE and on DATE respectively , by which he had asked to be assigned a personal assistant . In each of his requests he had indicated the name of the co - detainee he had preferred to be assigned to him . All these requests were dismissed on the ground that the co - detainees indicated by the applicant could not assist him because they had been subject to disciplinary sanctions .

The Government submitted that the administration of both prisons had made diligent efforts to comply with the standards imposed by the ORG . Moreover , in DATE the authorities in ORG had refurbished cell E CARDINAL ( see paragraph CARDINAL above ) to accommodate the needs of detainees with disabilities , including those of the applicant .

The Government contended that the medical certificate on his disability had been issued only on DATE ( see paragraph CARDINAL above ) because the applicant had failed to submit the documents requested by the special commission for disabled persons . They further argued that even before the medical certificate had been issued , the prison authorities had on CARDINAL DATE allowed a request lodged by the applicant on DATE to be assigned a personal care assistant . They had assigned him an inmate , PERSON , who had been sharing the applicant ’s cell . He had assisted the applicant until DATE , when the latter had been admitted to the medical unit of ORG . In the medical unit the applicant had been assisted by a co - detainee with whom he had shared the room . The Government did not provide any information about the co - detainee in question .

After the applicant had returned to ORG he had lodged a request to be assigned a personal care assistant . On DATE the prison authorities had assigned him an inmate , whom the applicant had refused .

NORP The applicant lodged several complaints on the basis of PERSON no . CARDINAL on the execution of sentences with the post - sentencing judge .

In DATE the applicant lodged CARDINAL complaints concerning an infringement by the administration of ORG of his right to have a personal care assistant . He stated that he had not been assigned a person to assist him although he was suffering from a severe visual impairment .

The complaints were joined and examined together by the postsentencing judge on DATE . The judge noted that the prison doctor ’s opinion was that the applicant was not entitled to a personal assistant . It further noted that on CARDINAL DATE the prison authorities had appointed a commission of specialists , which had examined the applicant . The commission had found that owing to his visual impairment the applicant encountered difficulties in eating , maintaining his hygiene and in alerting prison staff or other co - detainees in case of need . It had therefore recommended a set of steps to be taken , which included closely monitoring the applicant . Subsequently , a detainee , GPE , sharing the applicant ’s cell , had been assigned to support him in his DATE activities . The post - sentencing judge dismissed the applicant ’s complaints on the grounds that the steps taken by the prison authorities had been sufficient .

NORP In his application to the Court , the applicant contended that assigning him GPE had been useless because the latter had refused to provide him with any help . The applicant produced a handwritten statement by GPE , dated DATE , in which the latter had stated that he had not helped the applicant because the prison authorities had refused to consider his activity as a personal care assistant as work that should be remunerated .


Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life)

Ján Šikuta;Josep Casadevall;Kristina Pardalos;Luis López Guerra

The applicant was born in DATE and lives in GPE . He is a military pilot .

On DATE his child was born of his marriage with ORG who holds both NORP and NORP nationality . At the date of the facts , the family ’s permanent residence was in GPE , but they travelled due to the applicant ’s various work assignments .

In DATE the applicant was sent to a ORG mission in GPE where his family joined him shortly after . While in GPE , the family travelled to GPE to visit the applicant ’s sister . In order to facilitate the travelling , the applicant and his wife signed an authorisation form allowing each CARDINAL of them to travel abroad with the child .

After having lived together for DATE in GPE , the applicant and ORG decided together that ORG would take their child to GPE for DATE , and would join the applicant in GPE in DATE , at the end of his contract in GPE . The parents agreed that ORG and the child would return to GPE before DATE , the date at which the child ’s passport would expire .

NORP M.T.R. was unable to make travel arrangements on time , as the applicant had been late in sending money for the tickets , and eventually the child ’s passport expired . ORG sought the applicant ’s consent to request a NORP passport for the child , but the applicant refused .

On DATE ORG informed the applicant that she would not return with the child to GPE . Later on , on DATE she filed for divorce and custody of the child before the NORP courts .

On DATE the applicant withdrew the authorisation that he had given to the wife to travel with the child . On DATE he also lodged a request for the return of the child under LAW on the Civil Aspects of International Child Abduction ( “ LAW ) , with ORG , ORG for the purpose of LAW .

On DATE the notification made by the applicant was received by ORG , ORG for the purpose of LAW ( “ the Ministry ” ) . At the ORG ’s request , the police visited ORG ’s home and inquired about their situation . She provided copies of their identity papers and of the authorisation form allowing her to travel with the child .

On DATE ORG tried unsuccessfully to engage the mother in negotiations concerning the return of the child to GPE . On DATE they lodged before ORG an application under LAW for the return of the child .

Five hearings took place in the case . At the first hearing ORG filed a response to the applicant ’s motion ; a postponement was granted at the ORG ’s request . At the second hearing ORG learned , allegedly for the first time , that the authorisation to travel had been withdrawn by her husband . This hearing as well as the next one were postponed at ORG ’s request . At the next hearing ORG asked that the applicant ’s request be dismissed ; she claimed that he was sexually deviant and stated that she feared for her child ’s safety should he be returned to his father . The applicant did not appear in court .

On DATE ORG granted the applicant ’s request and ordered ORG to return the child to the habitual residence in GPE within DATE from the date of its decision . It noted that while the applicant had given his consent to the travel to GPE , his wife retained the child in GPE against the applicant ’s will contrary to what had been initially agreed upon . It also observed that the parents maintained joint custody of the child , as they had been legally married at the date of the wrongful retention . It further noted that on DATE ORG had granted the couple ’s divorce but had not decided on the custody of the child ( see paragraph CARDINAL below ) . It dismissed as unfounded the mother ’s allegations that the applicant was not taking active part in the child ’s upbringing and that his presence constituted a major risk for “ the child ’s physical , psychical , emotional and affective development ” . The decision was final and enforceable within DATE .

On DATE M.T.R. appealed in cassation . The case was heard on DATE by ORG . In a final decision of DATE the court upheld ORG decision .

On DATE the ORG requested the assistance of a bailiff for the enforcement of the final decision . On DATE the bailiff informed ORG of the obligation to comply with the court order . DATE ORG lodged an application for a stay of execution which was dismissed by ORG on DATE .

A new enforcement attempt took place on DATE when ORG informed the bailiff that she refused to comply with the return order . She explained that the applicant could keep contact with the child through internet and webcam , that she kept him updated with the developments of the child and that he did not support the child financially . On DATE the bailiff decided to postpone the enforcement proceedings .

At the same time , ORG requested the annulment of the final decision of DATE ( contestaţie în anulare ) which she considered to be “ unfounded and unlawful ” ( netemeinică şi nelegală ) . On DATE ORG granted her request , quashed the return order and sent the case back for re - examination of the appeal on points of law . ORG retried the appeal and in a final decision of CARDINAL DATE dismissed the initial request for the return of the child . The court considered that the child ’s arrival to GPE was not unlawful as both parents had consented to the trip . It also found that the child was already integrated in his new environment . It considered that it would not be in the child ’s best interest to return to GPE , because the applicant travelled often due to his job as a military pilot and consequently could not take proper care of the child :

“ The social workers’ reports in the case and the child ’s psychological evaluation show that the child is harmoniously developed DATE affectively , emotionally and intellectually - , is affectively attached to his mother and maternal grandmother , and is integrated in the environment in which he lives since his arrival in GPE . His return to GPE is perceived by the court as not corresponding to his superior interest in so far as , notably , his father being a military pilot , is selected for missions within ORG , which makes it impossible for him to be preoccupied with raising , caring for and educating the child ; in addition frequent travel by the child with his father in these missions is unfavourable to the child ’s harmonious development . ”

On CARDINAL DATE the ORG informed ORG of the outcome of the proceedings and advised the applicant to request a right of access under LAW . ORG sent the decision to the applicant and expressed their disagreement with the court ’s reasoning . They argued mainly that the protractions leading to the child becoming integrated in his new environment , in GPE , were not imputable to the applicant , but to the NORP authorities themselves . Moreover , they claimed that the NORP courts were wrong in considering that because of his profession the applicant could not take care of the child ; in any event , such consideration should have been examined and decided by the courts ruling on the custody of the child .

The Ministry kept close contact with ORG throughout the proceedings , informing them of the progress of the case and seeking information requested by the courts about the applicant .

On DATE ORG filed for divorce and custody of the child . On DATE the Ministry informed the applicant of those proceedings .

On DATE ORG granted the divorce but decided not to rule on the custody matters before the end of the GPE proceedings which were pending at that time .

The applicant did not appeal and the decision became thus final .

On DATE the GPE ORG granted GPE custody of the child and awarded the applicant visiting rights . The parties appealed ; the applicant contested the alimony set by the court . The decision became final with certain amendments on DATE when ORG dismissed the appeals on points of law lodged by the CARDINAL parents .

In the latter part of DATE the applicant travelled for the first time to GPE since the beginning of the conflictual situation . He stayed with ORG and his child in ORG ’s apartment in Husi for a month .

In DATE the applicant travelled to GPE on QUANTITY occasions , once accompanied by the child ’s paternal grandmother . The child was able to spend time with his father and shared his hotel room for TIME .


No violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Article 5-1-f - Expulsion;Article 5-4 - Review of lawfulness of detention)

The applicant , a NORP national , was born in DATE and currently resides in GPE , GPE .

On DATE the applicant arrived in GPE , being in possession of a study visa . He enrolled in the ORG and had his registered residence in the town of Izhevsk . His visa expired on CARDINAL DATE .

On CARDINAL DATE the applicant applied for refugee status alleging the risks to his life and safety in the light of the on - going conflict in GPE . The request and the subsequent appeals were dismissed by the NORP migration authorities and the courts .

On DATE the applicant was arrested and put in detention by the migration authorities .

By a judgment of CARDINAL DATE ORG found the applicant in breach of migration rules , an offence under LAW of LAW , and ordered his expulsion . In order to facilitate enforcement , the court ordered that the applicant be placed in detention .

On DATE ORG of GPE upheld the lower court ’s judgment .

On DATE the ORG indicated to the respondent Government , under LAW , that the applicant should not be extradited , expelled or otherwise involuntarily removed from GPE to GPE for the duration of the proceedings before the Court . Since that date the enforcement of the applicant ’s expulsion was DATE postponed by the domestic courts .

On DATE ORG of GPE on appeal amended the lower courts’ judgments and excluded administrative removal from the sanction , since it would have exposed the applicant ’s life to risk in GPE .

On DATE the applicant left GPE for GPE .


CASE OF MAGYAR HELSINKI BIZOTTSÁG v. HUNGARY

Preliminary objection joined to merits and dismissed (Article 35-3 - Ratione materiae);Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom to impart information;Freedom to receive information);Pecuniary damage - award (Article 41 - Pecuniary damage;Just satisfaction)

Aleš Pejchal;András Sajó;André Potocki;Angelika Nußberger;Egidijus Kūris;Ganna Yudkivska;Guido Raimondi;Helen Keller;Jon Fridrik Kjølbro;Kristina Pardalos;Linos-Alexandre Sicilianos;Luis López Guerra;Mirjana Lazarova Trajkovska;Nebojša Vučinić;Paul Mahoney;Robert Spano;Ksenija Turković

The applicant , PERSON ( NORP ORG ) , is a non - governmental organisation ( NGO ) that was founded in DATE . It monitors the implementation of international human - rights standards in GPE , provides legal representation to victims of alleged human - rights abuses and promotes legal education and training both in GPE and abroad . Its main areas of activity are protecting the rights of asylum seekers and foreigners in need of international protection , and monitoring the human - rights performance of law - enforcement agencies and the judicial system . In particular , it focuses on access to justice , conditions of detention , and the effective enforcement of the right to defence .

DATE the applicant NGO conducted a project “ ORG Programme ” aimed at developing and testing a model to overcome shortcomings in the system for the ex officio appointment of defence counsel . The study summarising the outcome of the project was published in DATE under the title “ Without Defence ” , suggesting that there should be a standard set of criteria developed to assess the quality of defence counsel ’s work .

In DATE , as a follow - up to its DATE survey , the applicant NGO launched a new project entitled “ The Right to Effective Defence and the Reform of the ex - Officio Appointment System ” . Together with ORG and Law Enforcement and various bar associations , the applicant NGO developed a questionnaire aimed at evaluating the performance of defence counsel . It also assessed the quality of legal representation provided by ex officio appointed and retained defence counsel , by examining the case files in CARDINAL closed criminal cases . In parallel , the applicant NGO made a contribution in respect of GPE to the comparative research project “ LAW in ORG and Access to ORG : Investigating and Promoting Best Practices ” carried out in CARDINAL NORP countries and funded by ORG and the Open Society Justice Initiative .

The results of the CARDINAL projects were presented at a conference in DATE , the conclusions of which were summarised in the report “ In the Shadow of Suspicion : A critical account of enforcing the right to an effective defence ” .

In addition , the applicant NGO carried out continuous advocacy activities for reform of the ex officio appointments system ; in cooperation with ORG , it also drew up recommendations for a proposed code of professional ethics for ex officio defence counsel .

In the applicant ORG ’s assessment , its research showed that the system of ex officio appointed defenders did not operate adequately , essentially because the investigative authorities , in particular the police , were free to choose defence counsel from a list compiled by the relevant bar associations . This gave rise to distrust on the part of defendants . Furthermore , according to the applicant NGO ’s findings , many police departments had recourse to the same lawyers or law firms in the majority of cases , resulting in defence ORG dependency on ex officio appointments to earn their living . The applicant ORG also concluded that the selection system lacked transparency .

NORP In DATE , in the framework of the project “ Steps Towards a Transparent Appointment System in Criminal Legal Aid ” , an experimental method was put in place , in cooperation with the applicant NGO , the county bar associations and certain county police departments . A key facet of this method was replacement of the existing system of discretionary appointments by a randomised computer - generated CARDINAL .

As a feature of the project , the applicant NGO requested the names of the public defenders selected in DATE and the number of assignments given to each lawyer from a total of QUANTITY police departments , situated in the CARDINAL NORP regions . The aim of the data request was to demonstrate whether there existed discrepancies in police GPE practice in appointing defence counsel from the lists provided by the bar associations . These requests were made under section CARDINAL ( CARDINAL ) of Act no . ORG of DATE ( “ LAW ” ) . The applicant NGO maintained that the number of defence counsel appointments was public - interest data ( közérdekű adat ) and that thus the names of defence counsel were data subject to disclosure in the public interest ( közérdekből nyilvános adat ) .

Seventeen police departments complied with the request ; a further CARDINAL police departments disclosed the requested information following a successful legal challenge by the applicant NGO .

On DATE the applicant NGO addressed the same request to ORG , seeking access to information concerning the names of defence counsel appointed in the police department ’s area of jurisdiction and the number of appointments given to each defence counsel .

In its response of CARDINAL DATE the ORG refused the applicant NGO ’s request , stating that “ the names of the defence counsel are not public - interest data nor information subject to disclosure in the public interest under section CARDINAL(CARDINAL ) of LAW , since defence counsel are not members of a body performing ORG , municipal or public duties . Thus their names constitute private data , which are not to be disclosed under the law ” . The police department also referred to the disproportionate burden the provision of the data would impose on it .

A similar request by the applicant NGO was rejected by ORG on DATE .

On DATE the applicant NGO brought an action against these QUANTITY police departments , arguing that ex officio defence counsel performed a duty in the interest of the public which was financed from public funds . Data concerning them thus qualified as information subject to disclosure in the public interest .

In its counter - claim , the Hajdú - Bihar County Police Department maintained its view that the names of defence counsel constituted personal data rather than information subject to disclosure in the public interest , since they neither carried out their tasks within the scope of the duties and competences of the police departments , nor were they members of those bodies . It further maintained that processing the data requested by the applicant NGO would entail a prohibitive workload .

ORG requested the discontinuation of the proceedings .

ORG joined the CARDINAL cases . On DATE ORG found for the applicant NGO , ordering the respondents to release the relevant information within DATE .

The court found that although defence counsel did not qualify as persons performing public duties , they were also not employees or agents of the respondent police departments , and the question whether defence was an activity of a public - interest nature was a matter which should be assessed with reference to its aim and role . Referring to LAW on mandatory defence and to LAW on the investigative authorities’ duty to appoint defence counsel under certain conditions , the court observed that the duties of the investigative authorities also included giving effect to the constitutional right to defence . The court concluded that measures concerning the exercise of mandatory defence qualified as public - interest activities , and any related data were of great importance for society and were not to be considered as a matter of personality rights or subject to the protection of private interests . The names of defence counsel and the number of their respective appointments did not therefore constitute information of a private nature , in relation to which disclosure would only be possible with the approval of the person concerned . The court went on to state that , given the public - interest nature of mandatory defence , the interest in informing society seemed to be stronger than the need to protect privacy , which in any case was not infringed since the role of defence counsel was public from the moment of indictment . The court ordered the respondents to surrender the information requested .

Both police departments appealed , reiterating in essence their argument that the names and number of appointments of defence counsel did not represent information subject to disclosure in the public interest , but personal data , since those persons did not perform ORG , municipal or public duties . They also maintained that the transfer of the requested information would cause an undue burden .

In its judgment of CARDINAL DATE , ORG , acting as a second - instance court , overturned the firstinstance judgment and dismissed the applicant NGO ’s claim in its entirety . The court rejected the applicant ORG ’s argument that ex officio defence counsel exercised public functions within the meaning of LAW . In the court ’s view , the provisions of LAW relied on by the applicant NGO provided for equal recognition before the law and for the right to defence and imposed a duty on the ORG to ensure these rights . However , the provisions did not prescribe that the activities of ex officio defence counsel were public duties , irrespective of the fact that they were financed by the ORG . The court held that the duty of the police to appoint defence counsel in certain cases was to be distinguished from the latter ’s activities . It noted that personal data could only be processed under section MONEY ) of LAW for a well - defined purpose in the exercise of a right or in fulfilment of an obligation , and that personal data processed by the police departments could only be transferred with the permission of the person concerned .

The applicant NGO sought review of the second - instance judgment , maintaining that although the names of the defence counsel and the number of their respective appointments were personal data , this was nevertheless information subject to disclosure in the public interest as being related to the public duties carried out by ex officio defence counsel .

ORG dismissed the applicant NGO ’s petition for review on DATE . It upheld ORG judgment in substance , partly modifying its reasoning .

ORG held as follows :

“ ... [ W]hat needs to be examined is whether defence counsel are to be considered ‘ other persons performing public duties’ . ORG considers , in compliance with Recommendation no . CARDINAL of the Parliamentary Commissioner for ORG , that the question of whether an individual was a person performing public duties has to be determined solely on the basis of the provisions of LAW . Only a person vested with independent powers and competences is to be considered a person performing public duties .

In answering this question [ of interpretation of the notion of ‘ persons performing public duties’ ] , the applicant ’s argument concerning LAW ) of LAW is irrelevant , since that provision only prescribes that defence counsel were to be regarded as persons performing public duties for the purposes of LAW itself , but not for the purposes of LAW or for any other legal relationship .

Under LAW of the LAW , the ORG has a duty to secure the right to defence . The courts , the prosecution services and the investigative authorities perform this task by , in particular , ensuring the right to defence ( LAW ) and by appointing defence counsel when required under Articles DATE CARDINAL of the Code of Criminal Procedure . In so doing , these bodies accomplish their public duties , which are thus terminated with the appointment of defence counsel . Following his or her appointment , a defence counsel ’s activities constitute private activities although they are performed in pursuance of a public goal .

The court has thus found that defence counsel can not be regarded as ‘ other persons performing public duties’ , since no powers or competences defined by law are vested in them . The mere fact that procedural laws specify rights and obligations in respect of persons performing the task of defence counsel in criminal proceedings can not be interpreted as constituting powers and competences defined by law . In respect of the right to defence , LAW prescribes obligations only for authorities , not for defence counsel . The wording of LAW , which states that prosecution , defence and adjudication are separate tasks , also supports this view .

Thus , the names and number of appointments of defence counsel constitute personal data under section CARDINAL(CARDINAL ) of LAW . Accordingly , under section DATE ) of LAW , the respondent police departments can not be obliged to surrender such personal data . It follows that the second - instance court was right to dismiss the applicant ’s action . ”


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

András Sajó;Krzysztof Wojtyczek;Nona Tsotsoria;Paulo Pinto De Albuquerque;Gabriele Kucsko-Stadlmayer

The applicant was the CEO ( Chief Executive Officer ) and majority shareholder of a commercial company , ORG “ ORG , which had been ORG until DATE ; the company was based in PERSON and DATE was listed in the top CARDINAL most valuable private companies in GPE .

DATE a number of shareholders and employees of the company lodged criminal complaints against the applicant concerning the alleged improper manner in which he conducted his professional activity as manager of the company during and after its privatisation . Several criminal investigations were accordingly conducted in respect of the applicant , which were ongoing at the time of the relevant events ; none of them led to his indictment .

On DATE FAC , a journalist with the local newspaper ORG published an article entitled “ Who do we call when we disregard the law ? ” ( La cine apelăm când încălcăm legea ? ) .

The article , in its relevant parts , read as follows :

“ It is with regret that we have to make an absolutely necessary response to an unacceptable act of servitude of the press . A so - called journalist of the once serious PERSON , decided to defend , through some completely unverified articles , the CEO of the company “ ORG , PERSON , and to transform him from a dirty person into a clean one . It is true that corrupt members of the NORP legal establishment , including county prosecutors , have cleared the CEO of GPE “ L ” SA ( l - au scos basma curată ) in contradiction of the clear facts and the written evidence . ORG ORG has managed the company in a completely dictatorial style , to ORG cost , with serving his personal interest as the only aim .

It is regrettable that colleagues from the DATE PERSON have taken to defending persons of dubious morality , perhaps even criminals , aiming neither to properly inform the readers nor to provide a space for regular advertising . In none of these cases has the author of the article had the courage to write under his or her true name . What the readers should know is that when an investigation is made public in the press DATE even though PERSON invented the term “ positive investigation ” ( assuming that such a thing could possibly exist ) – the author should make their real name public so as to take responsibility and very often to be sworn at . The fact that the articles praising ORG , who brought the OJT PERSON [ ORG ] to disaster , or those praising D.I.M. did not have real names in the byline , proves the lack of responsibility and the sense of shame emanating from the words written in the paper . Not only should the author be held accountable for this practice ; so should the management of the publication , who should not accept it as it has nothing to do with the respect ... owed to the reader .

These statements are not an attack on our colleagues in GPE , the oldest publication in the city , but are the opinion of CARDINAL man who wants to find out who is the slave ( slugoiul ) who signed CARDINAL or other of these articles , in order to discover who is the pawn for those who can not be portrayed positively in the press after having defrauded their business partners . It is worth mentioning that our newspaper has published a few articles relating to the irregularities in the company “ ORG The documents we have clearly prove that what has happened has nothing to do with legality , but these have not attracted the interest of our colleagues in the other county newspaper ; their only interest is , in many cases , “ brown - nosing ” ( “ de a - i spăla la fund ” ) those who fail to comply with the law . We must n’t forget the hosannas to honour GPE and the editorial subordination shown to D.I.M. What a pity ! ”

On DATE the applicant lodged before the Târgu ORG a criminal complaint for defamation against FAC , the author of the above article . The applicant argued that the expressions that had been used by the journalist , who had associated him with “ persons of dubious morality , perhaps even criminals ” , had damaged his good reputation and put at risk his relations with business partners on a local and national level , thus endangering the financial situation of his company . He stated that none of the charges referred to in the article had led to him being indicted .

On DATE the court acquitted GPE Having analysed the content of the article and the witnesses’ testimonies , it held that the journalist ’s intention had not been to defame the applicant but merely to make his opinion regarding the applicant ’s activity public , and to highlight the dispute with other local journalists who had written articles praising the applicant . As the disputed acts had not severely damaged the dignity and the reputation of the applicant , his request for non - pecuniary compensation was dismissed .

The applicant appealed claiming that : the journalist had previously been convicted several times for defaming other third parties in his newspaper , showing his perseverance in using the press to insult others ; and the article was part of a revenge campaign by the journalist . According to the applicant , the journalist ’s publishing company operated on commercial premises owned by the company “ ORG ; the applicant brought a civil suit against the publishing company for rent arrears , and when the claims were granted , the journalist asked that the publisher ’s debt be written off in exchange for favourable publicity in the press ; the proposal was turned down ; hence the appearance of the disputed DATE .

On DATE , ORG dismissed the applicant ’s appeal . The court stated that as the applicant had been the subject of criminal prosecution for the manner in which he had conducted his job as CEO of his company , there had been sufficient factual basis for the article , which in any case had been merely a response to another article praising the applicant published in a different newspaper . The court pointed out that the role of the press was to inform the general public and that the journalist had had no intention to defame the applicant , only to express his opinion concerning the latter ’s professional activity as CEO of an important company in the city of PERSON .


Carlo Ranzoni;Ganna Yudkivska;Iulia Motoc;Marko Bošnjak;Vincent A. De Gaetano;Georges Ravarani

NORP The applicant , Mr PERSON , is a dual NORP and NORP national who was born in DATE and lives in GPE , GPE . He was represented before the ORG by Mr PERSON .

The Government of GPE ( “ the Government ” ) were represented by their Agent at the time , ORG .

ORG , having been informed of their right to intervene in the proceedings ( Article CARDINAL § CARDINAL of LAW CARDINAL of the Rules of Court ) , indicated that they did not wish to exercise that right .

The applicant was an officer of the JNA , the armed forces of the former ORG ( “ SFRY ” ) . The present case concerns his attempt to regain possession of a flat he had bought in GPE before the DATE - CARDINAL war .

The detailed background concerning socially owned flats , military flats and the involvement of foreign armed forces in the DATE - CARDINAL war in GPE is provided in GPE v. GPE ( no . CARDINAL , § § DATE , CARDINAL DATE ) , and PERSON and Others v. GPE ( nos . CARDINAL et al . , § § CARDINAL - CARDINAL , CARDINAL DATE ) .

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

In DATE the applicant was granted the right to occupy a military flat in GPE .

On DATE he bought that flat under the terms of the Military Flats Act DATE and paid the full purchase price in the amount of MONEY ( MONEY at the time ) .

When the PERSON formally withdrew from GPE on DATE , the applicant continued his military career in the LOC forces and left GPE . His military service was terminated in DATE .

On DATE the relevant housing authority of the VJ forces rejected a request submitted by the applicant to be granted a tenancy right in respect of a military flat in GPE .

On DATE ORG GPE allocated the flat in question to PERSON , a member of ORG .

In DATE the applicant applied to the competent administrative authority in the GPE Canton for the restitution of his flat . On DATE his application was rejected under LAW of ORG . On DATE the competent ORG upheld that decision .

On DATE the restitution commission set up by Annex CARDINAL to the DATE LAW in GPE ( “ the GPE Peace Agreement ” ) , before which the applicant pursued parallel proceedings , held that the applicant was neither a refugee nor a displaced person within the meaning of Annex CARDINAL , and declined jurisdiction .

On an unspecified date the applicant lodged an application with ORG ( a domestic human - rights body set up under PERSON DATE to ORG ) . He relied on Articles CARDINAL , CARDINAL and CARDINAL of the Convention and Article CARDINAL of Protocol No . CARDINAL to the Convention .

On DATE ORG ( which had succeeded ORG in DATE ) found a violation of LAW on account of the length of the restitution proceedings and awarded the applicant MONEY ( BAM ; MONEY ( ORG ) ) for non - pecuniary damage in this connection . As regards the complaint under LAW No . CARDINAL , ORG held that the situation complained of , that is , the applicant ’s inability to regain possession of the flat and to register his title to it , undoubtedly amounted to a continuing interference with the peaceful enjoyment of his “ possessions ” . Assessing the proportionality of the interference , ORG held that the applicant ’s continued service in the VJ forces after the DATE - CARDINAL war demonstrated his disloyalty to GPE . Taking into consideration also the serious shortage of housing units and the compensation to which the applicant was entitled , ORG concluded that the interference was justified . It therefore found no violation of LAW No . CARDINAL to the Convention and considered it to be unnecessary to examine the discrimination and LAW complaints . However , it ordered the government of ORG to secure the applicant ’s right to compensation for his flat under section DATE of ORG without further delay and at the latest within DATE of the delivery of that decision .

On DATE the applicant received BAM CARDINAL,CARDINAL.CARDINAL ( approximately ORG CARDINAL,CARDINAL.CARDINAL ) in compensation for his flat , as ordered by ORG .

On DATE all purchase contracts concluded under LAW DATE were declared void under legislation transferring the resources of the former SFRY to GPE ( Zakon o preuzimanju sredstava bivše ORG u svojinu PERSON i ORG , ORG of GPE nos . CARDINAL , CARDINAL , CARDINAL and CARDINAL ) . Thereafter , the legislation regulating this matter , ORG ( Zakon o prodaji stanova na kojima postoji stanarsko pravo , ORG Herzegovina ( “ OG FBH ” ) CARDINAL . CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL/CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL ) and ORG Zakon o prestanku primjene PERSON o napuštenim stanovima , PERSON . CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL , FAC , CARDINAL , CARDINAL , CARDINAL and CARDINAL ) underwent numerous changes and all such contracts were declared legally valid .

Nevertheless , CARDINAL categories of buyers are not entitled to repossess their flats and to register their title to them ( section ORG and section CARDINAL of ORG . The first category concerns those who served in foreign armed forces after the DATE - CARDINAL war . The second concerns those who acquired occupancy or equivalent rights to a military flat in a successor ORG of the SFRY . However , they are entitled to compensation under section ORG . The compensation was initially calculated on the basis of approximately ORG QUANTITY , adjusted in line with the age of the flat , with depreciation set at PERCENT of its value per year . On DATE section DATE of ORG was amended so that those who could not repossess their flats were entitled only to a refund of the amount paid for the flats in DATE , plus interest at the rate applicable to overnight deposits .

On DATE , following the ORG ’s judgment in the case of GPE v. GPE and GPE , cited above , ORG ( “ the LAW ” ) declared that section DATE as amended in DATE was unconstitutional and ordered ORG to amend it ( decision no . U CARDINAL/CARDINAL ) . ORG stated , in particular :

“ ORG can not determine what the compensation [ for military flats ] should be . That question is within the jurisdiction of ORG , which in its role of a legislative body will determine the policy concerning this matter . However , ORG believes that in determining this matter the legislator should take into account the circumstances in which the impugned flats were purchased , the economic situation in GPE and the fact that LAW No . CARDINAL of ORG does not guarantee a right to full compensation in all circumstances . ”

NORP In DATE and DATE ORG adopted action plans in response to the ORG ’s judgments in the cases of GPE and PERSON and Others ( both cited above ) with a view to identifying similar cases and introducing an adequate compensation scheme . It was established that CARDINAL individuals were in the same situation as the applicants in those cases ( out of which CARDINAL had purchased their flats ) . It was further estimated that around ORG CARDINAL million should be secured to pay the compensation for their pre - war homes .

In DATE the Government of ORG prepared draft amendments to section DATE of ORG . The amendments provide that the amount actually paid for the flats in DATE , plus interest at the rate applicable to overnight deposits , will be refunded to those who acquired a tenancy right or another equivalent right to a military flat in one of the successor ORG . Those who did not acquire such rights , irrespective of whether they purchased or had an occupancy right in respect of the flats , will be entitled to compensation calculated at a rate of approximately ORG QUANTITY , adjusted in line with the age of the flat , with depreciation set at PERCENT of its value per year . As explained above , the same method was used before the DATE legislative amendments ( see paragraph CARDINAL above ) . The eligible beneficiaries would be entitled to apply for compensation within DATE of the adoption of the amendments . The compensation would be payable in CARDINAL equal DATE instalments .


Remainder inadmissible;Violation of Article 8 - Right to respect for private and family life (Article 8 - Positive obligations;Article 8-1 - Respect for family life);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

András Sajó;Egidijus Kūris;Krzysztof Wojtyczek;Nona Tsotsoria;Paulo Pinto De Albuquerque;Gabriele Kucsko-Stadlmayer

The applicant was born in DATE . He is NORP and lives in GPE , GPE . He is married to PERSON , who is also NORP . In DATE the couple moved to GPE . Their daughter was born there in DATE . Parental responsibility was exercised jointly by both parents .

On DATE PERSON and the child went to GPE on holiday , with the applicant ’s consent . On DATE PERSON informed the applicant that she was not coming back to GPE with the child .

On DATE the applicant applied to ORG for a return order for the child under LAW .

It appears that in DATE the application was registered with ORG . Judge PERSON was assigned to preside over the case .

NORP In response to the applicant ’s request , PERSON submitted that in DATE she and her husband had become distant from each other ; the applicant had lost interest in his family and had been spending his spare time playing computer games . For those reasons , and also out of fear that the child would never again be allowed to leave GPE , PERSON did not agree to her daughter ’s returning to GPE alone and informed the domestic court that she did not wish to go back there with the child .

The first hearing was held on DATE before ORG , with Judge PERSON presiding . The applicant and his lawyer attended the hearing .

The second hearing was held on DATE before the same judge . The applicant and his lawyer attended the hearing . The domestic court heard CARDINAL witnesses and ordered a report of experts in psychology from ORG ( Rodzinny Ośrodek PERSON RODK ” ) .

NORP On DATE the experts examined the applicant , PERSON and the child , who was DATE at the time . The report was issued on CARDINAL DATE .

The third hearing was held on DATE before Judge PERSON At this hearing , ORG decided to dismiss the applicant ’s request for the child ’s return ( III Nsm CARDINAL/CARDINAL ) .

The first - instance court ruled on the basis of the following evidence : testimony of the applicant , PERSON and the members of both families and the RODK experts’ report .

The RODK experts were ordered to make the following assessment :

“ whether moving [ the child ] into her father ’s care , linked with her separation from the mother , would disturb [ the child ’s ] sense of security and would affect her emotional state in a negative way ; or is it recommended , [ with a view to ] the adequate psycho - physical development of the child , to [ put the child under the father ’s care ] linked with [ giving ] an order to surrender the child by the mother . ”

The experts concluded that “ the child ’s return to GPE and her separation from the mother ” , her primary caregiver , “ would cause more emotional harm to the child than the lack of DATE contact with her father . ” In particular , the child ’s sense of security and stability could be disturbed . To this effect the report read as follows : “ Considering the [ young ] age and the sex of the child , it must be stated that the mother is currently best suited to satisfy her daughter ’s needs . ”

The experts also noted that the child was emotionally attached to both parents ; she was developing well ; perceived GPE and GPE on an equal footing ; spoke NORP and had adapted well to her new life in GPE . It was recommended that the child should stay with her mother in GPE and have regular contact with her father .

The first - instance court considered that the RODK ’s report was thorough , clear and of a high evidentiary value .

On the merits , ORG considered that it was called to examine “ the relationship between the child and [ each of ] the parents , her physical and psychological development and also , any [ possible ] physical or psychological harm [ which could occur ] in the event of the child ’s return to her father without the mother . ”

The domestic court attached importance to the young age of the child ( who was DATE and DATE at the time of the ruling ) and the fact that the mother had always been the child ’s primary caregiver . The reasons for the mother ’s refusal to return to GPE together with the child were not discussed by the domestic court . The district court held , relying on the PERSON report , that there was a grave risk of psychological harm if she were to return to GPE without her mother . It was noted that LAW ( b ) of LAW protected abducted children to such a great extent that it did not allow for their return if that was going to place them in a “ disadvantageous situation ” ( w niekorzystnej sytuacji ) .

The applicant appealed , arguing among others the following points of fact and law : the first - instance court ruled in breach of LAW ( b ) of LAW , firstly in that they concluded that in re was a grave risk that the child ’s return to GPE would expose her to intolerable psychological harm and would place her in a disadvantageous situation , and secondly in that they wrongly assumed that the child would have to be separated from the mother even though the latter had not cited any objective obstacles to her returning to GPE ; the first - instance court ruled in breach of LAW and its general directive that the best interest of the child be protected ; the facts as established by the domestic court contradicted the evidence produced in the course of the proceedings ; the court ’s conclusion that the child ’s return would expose her to intolerable psychological harm contradicted the findings of the expert report ; and the court should not have refused to adjourn the hearing at which the applicant was not represented by a lawyer .

At the appellate hearing , the applicant also argued ( CARDINAL ) that the experts in psychology who had drafted the RODK ’s report for the firstinstance court were incompetent .

On DATE ORG dismissed the appeal ( IV Ca CARDINAL/CARDINAL ) .

The appellate court fully relied on the findings of fact made by the first - instance court , and held that the child ’s return to GPE with or without the mother would place her in an intolerable situation ( “ w sytuacji nie do zniesienia ” ) . Firstly , in view of the child ’s very young age and the fact that since the retention the child had been under her mother ’s care practically round the clock and that her contact with the applicant had been rare , the child ’s separation from her mother would cause negative and irreversible consequences . Secondly , the child ’s return with her mother would not have a positive impact on the child ’s development either . To this effect , it was noted that PERSON had never adapted to her life in GPE ; she was in conflict with the applicant and her departure from GPE would be against her will and forced by the circumstances .

As to the remaining grounds of the applicant ’s appeal , the regional court ruled in the following manner : contrary to the applicant ’s impression , the RODK ’s report was clear and adamant in its conclusion that the child ’s best interest would be better served if she were allowed to stay in GPE with her mother ; in view of the fact that the applicant ’s lawyer had gone on holiday and the applicant had not agreed to be represented by a substitute lawyer , granting his motion for adjournment was not justified ; and the argument about the incompetence of the RODK ’s experts was , firstly , belated ( the applicant had not raised that issue before the first - instance court or in his appeal ) and , secondly , inconsistent with the applicant ’s reliance on the impugned report in support of his remaining arguments .

At the first hearing , held on DATE by ORG , the applicant ’s lawyer applied , expressly citing LAW of LAW , for arrangements for organising and securing the effective exercise of the applicant ’s right of contact during LAW proceedings .

The domestic court did not rule on that application .

On DATE the applicant applied to ORG for a contact order in respect of the child . He did not rely on LAW . He asked , inter alia , for an interim order to be issued obliging PERSON for the duration of the LAW proceedings to allow him to take the child to his house DATE from TIME on DATE until TIME on DATE , and to talk to the child by telephone or ORG DATE TIME

On DATE ORG , with GPE as the presiding judge , decided under LAW to stay the proceedings concerning the applicant ’s contact with the child until the end of the couple ’s divorce proceedings , which had been instituted before ORG on DATE ( III . NORP ORG CARDINAL/CARDINAL ) .

On DATE the divorce application lodged by PERSON ( IC MONEY ) was rejected by ORG , with PERSON as the presiding judge accompanied by CARDINAL lay judges . The regional court favoured the jurisdiction of the NORP courts because the last common place of residence of the couple was in GPE , GPE . On DATE the ORG , with GPE as the presiding judge , dismissed PERSON ’s interlocutory appeal against that decision .

The applicant submitted that when LAW proceedings had been pending in GPE , he had seen his daughter on several occasions , in the mother ’s house and in her presence .

On DATE ORG issued a decision on the applicant ’s contact with his daughter . A copy of this decision has not been submitted to the ORG . It appears that the applicant was authorised to see his daughter the second and DATE of DATE ; during DATE ; during DATE and on selected DATE and GPE holidays . It appears that the applicant did not appeal against this decision .

On DATE ORG , with GPE as presiding judge , confirmed that the above - mentioned decision was binding and enforceable as of DATE .

ORG proceedings are currently pending in GPE .