Preliminary objection dismissed (Art. 35) Admissibility criteria;(Art. 35-1) Exhaustion of domestic remedies;Remainder inadmissible (Art. 35) Admissibility criteria;Violation of Article 38 - Examination of the case-{general} (Article 38 - Obligation to furnish all necessary facilities);Violation of Article 4 of Protocol No. 4 - Prohibition of collective expulsion of aliens-{general} (Article 4 of Protocol No. 4 - Prohibition of collective expulsion of aliens);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);Violation of Article 5 - Right to liberty and security (Article 5-4 - Review of lawfulness of detention);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 13+5-1 - Right to an effective remedy (Article 13 - Effective remedy) (Article 5-1 - Lawful arrest or detention;Article 5 - Right to liberty and security);Violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Degrading treatment;Inhuman treatment;Prohibition of torture);No violation of Article 1 of Protocol No. 7 - Procedural safeguards relating to expulsion of aliens (Article 1 para. 1 of Protocol No. 7 - Expulsion of an alien;Lawfully resident);No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life);No violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Deprivation of property);No violation of Article 2 of Protocol No. 1 - Right to education-{general} (Article 2 of Protocol No. 1 - Right to education);Just satisfaction reserved

Anatoly Kovler;André Potocki;Ann Power-Forde;Christos Rozakis;Corneliu Bîrsan;Dmitry Dedov;Elisabeth Steiner;Françoise Tulkens;Isabelle Berro-Lefèvre;Jean-Paul Costa;Josep Casadevall;Karel Jungwiert;Khanlar Hajiyev;Luis López Guerra;Mark Villiger;Mirjana Lazarova Trajkovska;Nicolas Bratza;Nona Tsotsoria;Päivi Hirvelä;Peer Lorenzen;Rait Maruste;Renate Jaeger;Vincent A. De Gaetano;Zdravka Kalaydjieva

The facts of the case may be summarised as follows .

Having regard to all the evidence submitted to the ORG , it transpires that at DATE the political tensions between GPE and GPE had reached a climax with the arrest on DATE of CARDINAL NORP officers in GPE and the suspension by GPE on DATE of all aerial , road , maritime , railway , postal and financial links with GPE . Expulsions of NORP nationals by GPE were already being reported in the international media at DATE , and those reports were then being relayed by various international governmental and nongovernmental organisations ( see , inter alia , the report of CARDINAL DATE by ORG of ORG of ORG PACE ) “ Current tensions between GPE and GPE ” , AS / Mon(CARDINAL)CARDINAL rev . ; the report of DATE by ORG ) “ Singled Out . GPE ’s detention and expulsion of NORP ” , Volume CARDINAL No . CARDINAL ) ; and the report of DATE by ORG ( FIDH ) “ Migrants in GPE ” , no . CARDINAL ) .

It has been established that during the period in question ( from DATE until DATE ) NORP nationals were arrested , detained and then expelled from the territory of GPE .

According to the applicant Government , these were reprisals following the arrest of the NORP officers in GPE and NORP nationals were expelled regardless of whether they were lawfully or unlawfully resident in GPE , simply because they were NORP .

According to the respondent Government , the events relating to the arrest of CARDINAL NORP officers in GPE were entirely irrelevant to the facts set out by the applicant Government in their application . The NORP authorities had not taken any measures of reprisal against NORP nationals , but had merely continued applying the statutory provisions for the prevention of illegal immigration in compliance with the requirements of the ORG and the Russian Federation ’s international obligations .

The parties submitted conflicting statistical evidence regarding the number of NORP nationals expelled during that period .

The applicant Government submitted in particular that DATE and DATE , CARDINAL expulsion orders had been issued against NORP nationals , of whom CARDINAL had been detained and forcibly expelled , and the remaining CARDINAL had left the country by their own means . They specified that DATE there had been a sharp increase in the number of expulsions of NORP nationals , which had risen from CARDINAL persons per month DATE to CARDINAL per month DATE and DATE . At the witness hearing PERSON PERSON , Consul of GPE in GPE at the material time , stated that from DATE the NORP consulate in GPE had been inundated with telephone calls and requests for assistance from relatives of persons detained , and that CARDINAL NORP nationals had come to the consulate DATE . He also said that there had been an increase in the number of travel documents ( which were necessary to expel NORP nationals ) issued during that period , with the number rising from an average of CARDINAL documents per day to CARDINAL per day ( see Annex , § CARDINAL ) .

The respondent Government , which stated that they had only DATE or DATE statistics , said that , in DATE , CARDINAL administrative expulsion orders had been issued against NORP nationals , which was a PERCENT increase compared with DATE . However , during DATE the highest number of administrative expulsion orders had been made against GPE nationals ( CARDINAL ) , followed by NORP nationals ( CARDINAL ) and NORP nationals ( CARDINAL ) , who , in reality , were only in third place . DATE and DATE , CARDINAL NORP nationals had been the subject of expulsion orders . They also indicated that during DATE CARDINAL planes chartered by GPE had flown a total of CARDINAL NORP nationals from GPE to GPE , and that at DATE and DATE CARDINAL planes chartered by GPE had flown CARDINAL NORP nationals from GPE to GPE . At the witness hearing PERSON , who had been Deputy Head of ORG at the material time , said that on DATE the flight had been with a cargo plane from ORG ( IL DATE ) , on CARDINAL , DATE and DATE with a NORP airliner ( FAC ) , and on DATE and DATE with NORP airliners ( see GPE , § DATE ) .

With regard to the international governmental and non - governmental organisations , they partly reproduced the figures submitted by the applicant Government ( see , inter alia , the report of ORG of ORG of ORG PACE report , § CARDINAL ) . ORG ( HRW ) , for its part , also referred , in its report , to an information note of DATE of ORG of GPE ( ORG report , p. CARDINAL ) . According to ORG , that note indicated that DATE and DATE , CARDINAL administrative expulsion orders were issued against NORP nationals and CARDINAL NORP nationals were expelled . ORG ( FIDH ) referred in its report to “ CARDINAL of arrests [ of NORP nationals ] , CARDINAL of detentions and expulsions to GPE ” after the incident of DATE ( FIDH report , GPE ) .

In support of their allegations , the applicant Government submitted a number of documents issued by ORG ( ORG ) of GPE and GPE and by ORG of GPE . These refer to CARDINAL circulars : circular – приказ – no . CARDINAL of DATE issued by ORG of GPE and GPE and circular – указание – no . CARDINAL of DATE issued by ORG of GPE .

These documents are the following :

i. CARDINAL instructions of CARDINAL and DATE issued by ORG of GPE and GPE :

( a ) The first instruction of DATE ( no . CARDINAL ) , sent by PERSON V.J. Piotrovskiy , Acting Head of ORG of GPE and GPE , Police Major General at the material time , to the heads of division of the directorate , is entitled “ increasing the effectiveness of the implementation of GUVD circular no . CARDINAL of CARDINAL ( § § CARDINAL , CARDINAL and CARDINAL ) ” and orders that

“ CARDINAL . from CARDINAL . - DATE and in cooperation with the territorial directorates of ORG for GPE and GPE including staff of all units , large - scale measures be undertaken to identify as many citizens ( граждане ) of GPE as possible who are unlawfully residing on NORP territory and deport them ” ;

“ CARDINAL . to “ initiate ” ( Инициировать ) decisions before courts in cases of violations of the rules governing the residence of foreign citizens deporting only the above - mentioned category of citizens by placing them in detention in a reception and detention centre of ORG ( ORG ) . The implementation of these measures is approved by ORG for GPE and GPE ( UFMS ) and the adoption of decisions is coordinated with GPE and ORG ; ” ( the instruction in question also appears in the ORG to the PACE report and the ORG report , and is mentioned in the FIDH report , p. CARDINAL ( b ) in fine ) .

( b ) The second instruction of DATE ( no . ORG ) and the third one ( no . CARDINAL ) of DATE supplement the first one . The second one , sent by PERSON , head of a division of ORG of GPE and GPE at the material time , to the heads of district police departments for combating economic crime and of ORG of GPE , also refers to circular no . ORG . The third one , sent by ORG , Acting Head of Police of GPE and of GPE at the material time , to the heads of district police departments , orders the relevant authorities to submit DATE reports on the number of NORP nationals arrested for “ administrative offences ... and violations of the regulations governing registration of home address ” ;

ii . An order of DATE ( no . CARDINAL ) by PERSON , Acting Head of Police of GPE and GPE at the material time , referring to the implementation of paragraph CARDINAL of circular no . CARDINAL ;

iii . An information note of DATE issued by ORG applying circular no . CARDINAL of DATE of ORG of GPE indicating the measures taken to reinforce supervision of the lawfulness of NORP ORG residence in GPE : checks on employers recruiting NORP citizens , checks on NORP citizens who have committed the offences set out in ORG CARDINAL of LAW , suspension of the issuing of certain documents to NORP citizens ( acquisition of NORP nationality , registration documents , temporary and permanent residence permits ) and checks on the lawfulness of granting such documents ( the information note also appears in the LOC to the ORG report ) .

The respondent Government submitted that all those instructions , the order and the information note had been falsified and disputed the content as alleged by the applicant Government of the CARDINAL circulars FAC . ORG and CARDINAL to which those documents referred . However , they confirmed the existence of the CARDINAL circulars , but said that these could not be provided to the ORG because they were classified “ ORG secret ” . At the witness hearing PERSON PERSON , Deputy Head of ORG , ORG , GPE , at the time of the hearing , confirmed that the instruction of DATE ( no . CARDINAL ) ( see paragraph CARDINAL above ) purportedly issued by ORG of GPE and GPE was a forged document and that the CARDINAL circulars nos . ORG and CARDINAL ( the latter actually being a telegram ) were classified “ ORG secret ” and that they concerned a reference to various national criminal groups , but not a selective reference to NORP nationals . They could not be disclosed because this was forbidden under NORP law ( see GPE , § DATE ) .

In his DATE report of DATE Mr PERSON , Commissioner for Human Rights of GPE ( NORP Ombudsman ) at the material time , published the full text of the instruction of DATE ( no . CARDINAL ) , on which Mr PERSON name appears unsigned . The Commissioner said that the instruction had been sent to him by GPE human rights activists and that it had been published by the local press . He commented as follows : “ To call things as they are , this unprecedented document is evidence that ... most senior police official entered into an arrangement with the judicial authorities with the aim of obtaining unjustified judicial rulings in relation to DATE as yet unidentified – persons in breach of temporary residence procedures , ignoring the specific circumstances of each of them and on the sole basis that they were NORP citizens . ” He went on to say that he had asked ORG of GPE to check whether the document was genuine and , if so , “ to take appropriate measures to bring the guilty to justice and revoke the blatantly illegal instructions contained in it ” ( DATE report of DATE of the Commissioner for Human Rights of GPE , point CARDINAL “ Interethnic relations and human rights ” ) .

In his letter in reply of DATE , PERSON , Deputy General Prosecutor of GPE at the material time , said that it “ was established that the law - enforcement authorities of GPE and of the GPE Region regularly take measures aimed at revealing foreign nationals unlawfully residing in GPE and GPE . These measures are realised in accordance with the rules of LAW , the NORP “ ORG Activities ” Act ( Об оперативно-розыскной деятельности ORG ) and departmental regulations including those constituting a ORG secret . In DATE CARDINAL foreign nationals were sent back from GPE to their countries ; CARDINAL of them had NORP nationality . No cases of abuse of authority were revealed on the part of officers of the militia department . ”

In his report the Commissioner described the reply from the Deputy General Prosecutor as follows : “ in the best bureaucratic traditions the document gave no answer to any of the questions posed by the Commissioner . Instead , the “ reply ” from the Deputy General Prosecutor included a short report on the successes of the GPE lawenforcement authorities and , in a reference to departmental regulations classified as “ secret ” , confirmed that there was no evidence of the employees having exceeded their authority . Whether this means that as a result the sub - departments of ORG of GPE and GPE did not carry out their superior ’s manifestly illegal directions remains unclear . ”

The applicant ORG also submitted CARDINAL letters from ORG of CARDINAL GPE districts – GPE ( Head at the material time : PERSON ) and PERSON ( Deputy Head at the material time : Mr PERSON ) DATE sent on CARDINAL and DATE to schools for the purpose of identifying NORP pupils with the aim , among other things , of “ ensuring public order and respect for the law , preventing terrorist acts and tensions between children living in GPE and children of NORP nationality ( национальность ) ” ( letter from PERSON ) . In a letter in reply dated DATE , the director of CARDINAL of those establishments at the material time ( Mr PERSON ) said that there was no register recording pupils on the basis of their nationality ( the letters from Mr Zakharov and PERSON also appear in the LOC to the PACE and ORG reports ) . The sending of these requests for information was widely commented upon in the NORP media .

The respondent Government did not dispute the existence of the letters and even acknowledged that other requests of the same type had been sent to various schools at DATE by the head of ORG LOC of GPE ( ORG at the material time ) , on the ground that she wanted to identify cases of bribes paid to schools by illegal immigrants , and by the Head of ORG of LOC in LOC ( Mrs S.V. Volkova at the material time ) , on the ground that she wanted to identify cases of children living in insalubrious conditions . The respondent Government submitted that the subsequent investigations had concluded that no such official instructions had been issued by ORG . However , where – in isolated cases – officials had been over - zealous , they had subsequently been punished for their illegal acts . The documents submitted by the respondent Government show that the officials in question were respectively reprimanded ( выговор ) , downgraded and disciplined . At the witness hearing PERSON , ORG , ORG of ORG in respect of Minors , ORG of the Interior , PERSON , at the material time , and PERSON , Deputy Head of ORG , GPE , GPE , at the material time , confirmed that information and explained how the official investigations had been carried out and the penalties imposed on PERSON and PERSON among others ( see GPE , § § DATE and CARDINAL ) .

The respondent Government also submitted a letter of DATE from the Deputy General Prosecutor of GPE to all prosecutors pointing out that various internal affairs directorates had acted unlawfully with regard to nationals of ORG ( ORG ) . He referred in particular to unjustified requests sent to schools for the purpose of identifying pupils of NORP nationality and concluded the letter by inviting all prosecutors to intensify their supervision of the activities of those divisions with a view to guaranteeing respect for the rights and freedoms of nationals of the ORG .

The international governmental and non - governmental organisations , for their part , referred to coordinated action between the administrative and judicial authorities , with express reference to the instruction of DATE ( no . CARDINAL ) and to circular no . CARDINAL of ORG of GPE and GPE of DATE ( PACE report , § § DATE and CARDINAL , ORG report , § DATE , and FIDH report , pp . CARDINAL and DATE ) . At the witness hearing PERSON , rapporteur of ORG at the material time , said that the expulsion of such a large number of NORP nationals within such a short space of time could not have been done without the knowledge and instructions of fairly highranking persons among the NORP authorities .

The FIDH indicated , moreover , that “ human - rights and refugeesprotection organisations present in GPE consider that a campaign conducted in such an ostensible manner throughout NORP territory can only have been initiated on a written order from the hierarchy of ORG . And whilst the top officials of ORG and ORG have denied giving explicit repressive orders targeting NORP , many members of the “ Migration and Law ” network of “ Memorial ” [ NORP non - governmental human rights organisation ] have seen in the regional departments or police stations written [ instructions ] containing all the elements present in the campaign . The case of the [ secret circular issued by ORG of GPE and GPE ] and letters sent to schools in GPE ( see paragraphs DATE above ) can not be regarded as isolated cases ” ( FIDH report , pp . CARDINAL ; for requests for information sent to schools , see also PACE report , ORG , and ORG report , p. CARDINAL ) .

It is in dispute between the parties whether the NORP nationals who were expelled had complied with the immigration rules in GPE during the period in question . Many international governmental and non - governmental organisations have stressed the complexity of those rules ( see paragraph DATE below ) .

With regard to the NORP witnesses who gave evidence at the witness hearing , even though their legal situation in GPE often appeared confused , the ORG notes that a majority of them were formally unlawfully resident in GPE – some for DATE for various reasons ( for example , no valid work permit , visa or registration certificate , often issued fraudulently DATE unbeknown to them – by the many private agencies operating fairly widely in GPE ) . They stated that their papers had indeed been checked on occasions in the past , sometimes resulting in the payment of a sum of money , but that this was the first time they had been arrested and forcibly expelled from NORP territory .

Mr GPE , Consul of GPE in GPE at the material time , said that the official procedures were difficult to carry out in practice and that many foreign nationals , including NORP , had been tricked by private agencies , many of which acted illegally and even issued forged registration certificates . He added that in the NORP Federation recourse was commonly had to these private agencies , which advertised in all public places in the big cities ( see GPE , § CARDINAL ) .

Mr GPE , Deputy Head of ORG , GPE , at the material time , and PERSON PERSON , Inspector from ORG in the same department at the material time , pointed out that only the official authorities were empowered to issue such documents and that they regularly published relevant information for the attention of foreign nationals . They confirmed the existence of such private agencies , but stressed that their activities were often illegal and were the subject of criminal proceedings , without , however , providing specific examples ( see GPE , § § DATE ) .

Following the witness hearing , the impugned events may be summarised as follows : identity checks of NORP nationals were carried out in the streets , markets and other workplaces and at their homes , and they were subsequently arrested and taken to police stations . After a period of custody in police stations ( ranging from TIME to DATE , according to the witness evidence ) , they were grouped together and taken by bus to the courts , which summarily imposed administrative penalties on them and gave decisions ordering their administrative expulsion from NORP territory . Subsequently , after sometimes undergoing a medical visit and a blood test , they were taken to detention centres for foreigners where they were detained for varying periods of time ( ranging from DATE according to the witness evidence ) , and then taken by bus to various airports in GPE , and expelled to GPE by aeroplane . It should be pointed out that some of the NORP nationals against whom expulsion orders were issued left the territory of GPE by their own means .

The NORP witnesses said that they had been arrested by NORP police officers on the pretext that their identity papers were not in order . They had often been unable to take their personal effects with them or inform their relatives . When they had asked why they were being arrested , they had been told that it was because they were NORP and that there was an order from above to expel NORP nationals ( witness statements nos . CARDINAL , CARDINAL and DATE see GPE , § § CARDINAL , DATE and DATE ) .

Mr GPE , Deputy Head of ORG , GPE , at the material time , and PERSON PERSON , Inspector from ORG in the same department at the material time , said that their departments undertook , on the basis of information received , identity checks of foreign nationals or employers suspected of having broken the immigration rules in GPE .

The NORP witnesses all stated that a very summary procedure had been followed before the courts . Often they had not even realised that they had been brought before a court ( witness statements nos . CARDINAL , CARDINAL and DATE see GPE , § § CARDINAL , DATE and DATE ) . Whilst some of them mentioned an interview with a judge , lasting TIME on average and with no real examination of the facts of the case ( witness statements nos . CARDINAL and DATE see GPE , § § CARDINAL and DATE ) , others said that they had not been admitted to the courtroom and had waited in the corridors , or even in the buses that had delivered them to the court ( witness statements nos . CARDINAL and DATE see GPE , § § DATE and CARDINAL ) , with other NORP nationals ( their number varied CARDINAL ) . They said that they had then been ordered to sign the court decisions without having had an opportunity to read the contents or being able to obtain a copy of the decision . They had not had access to either an interpreter or a lawyer ( witness statements nos . CARDINAL , DATE see GPE , § § CARDINAL , DATE and CARDINAL) . As a general rule , both the judges and the police officers had discouraged them from appealing by telling them that there was an order to expel NORP nationals , and in any event they had been so stressed at the idea of remaining in detention any longer and so eager to return to GPE that they would have signed “ anything at all ” . When they had asked why they were being expelled , they had been told that it was because they were NORP and that they should ask their President , PERSON .

Mr GPE , Consul of GPE in GPE at the material time , said that NORP officials had privately told him that such appeals were pointless because the decision to expel NORP from GPE was a political one ( see GPE , § CARDINAL ) .

Mr PERSON , Inspector from ORG , GPE , at the material time , described the procedures before the courts as follows : the defendant was brought before a judge who informed him of his rights and obligations , asked him if he wanted an interpreter and a lawyer to be present , and , if so , his request was taken into account ; the judge then asked the defendant questions about his particular situation , left the room and came back with the order . If it was an expulsion order , the defendant received a copy and was taken to the detention centre for foreigners with a view to his or her expulsion . He or she had DATE in which to appeal , even after being expelled from GPE , and that time - limit could be extended ( see GPE , § CARDINAL ) .

PERSON , Head of ORG , GPE , at the material time , explained that at the relevant time his division had identified procedural irregularities particularly regarding the manner in which ORG had been drawing up reports on foreign nationals from a number of countries . In CARDINAL cases those findings had led to the expulsion orders in question being set aside . He added that ORG in charge of LOC had requested all his divisions to ensure that the rights of all foreign nationals were duly respected . He said that there had never been any instructions restricting the rights of NORP nationals because that would be against the law , and even a crime under NORP law .

The NORP witnesses spoke of “ overcrowding ” , “ unbearable ” and “ inhuman ” conditions of detention and appalling conditions of hygiene , and said that their fellow detainees had mainly been NORP nationals , though there had sometimes been CARDINAL or CARDINAL other detainees of a different nationality .

They said that during their custody in the police stations , the cells , which were called “ monkey cages ” , had been tiny and overcrowded , that men and women had sometimes been detained together and that they had been unable to sit down ( witness statements nos . CARDINAL and DATE see GPE , § § DATE and CARDINAL ) .

They said that in the detention centres for foreigners the cells were also overcrowded : the description of the size of the cells ranged from CARDINAL mCARDINAL for CARDINAL detainees , QUANTITY for CARDINAL detainees with CARDINAL beds ( witness statement no . CARDINAL ) , CARDINAL x CARDINAL footsteps for CARDINAL detainees with CARDINAL beds ( witness statement no . CARDINAL ) , and QUANTITY mCARDINAL with CARDINAL detainees and QUANTITY beds ( witness statement no . CARDINAL ) . Other witnesses referred to tiny cells with CARDINAL or CARDINAL detainees ( witness statements nos . CARDINAL and CARDINAL ) or with CARDINAL detainees and CARDINAL beds ( witness statement no . DATE see GPE , § § CARDINAL , DATE , DATE , DATE , DATE and DATE ) . The beds had consisted merely of iron bars or very thin mattresses and no blankets ; the detainees had had to take it in turns to sleep ; a bucket had served as a toilet and had not been separated from the rest of the cells ; and there had been no decent water or food .

Mr GPE , Consul of GPE in GPE at the material time , said that he and his team had visited CARDINAL detention centres in various regions of GPE , including those of GPE and GPE . He confirmed that there had mainly been NORP nationals detained in all the centres , that the cells were overcrowded , the conditions of detention very difficult , the hygiene appalling , and that there were too few beds and mattresses . Only the detention centre no . CARDINAL of GPE ( model centre shown to journalists ) offered better conditions of detention , though it too was overcrowded ( see GPE , § CARDINAL ) .

Mr GPE , Deputy Head of ORG , GPE , at the material time , said that he was in charge of the CARDINAL detention centres in GPE and that he had visited all of them : the conditions of detention were the same for all foreigners , namely , large cells of QUANTITY , with beds , separate toilets , running water and hot meals served CARDINAL times per day ( see GPE , § CARDINAL ) . Other NORP witnesses said that there had never been any complaints by the Consul of GPE or by NORP nationals regarding the conditions of detention .

The NORP witnesses stated that they and other NORP nationals had been taken by bus , accompanied by officers from the NORP special police force ( PERSON ) , to various GPE airports from which they had been expelled by aeroplane to GPE . They said they had been humiliated by ORG officers , such as being obliged to pay in the bus before being allowed to relieve themselves or smoke or take their personal effects ( witness statements nos . CARDINAL , DATE , DATE and DATE see GPE , § § CARDINAL , DATE , DATE and DATE ) , and subsequently having to walk or even run towards the aeroplane with their hands behind their back in human corridors formed by ORG officers . The first NORP nationals to be expelled had been flown in a cargo plane ( on DATE ) , and the next ones in airliners ( on CARDINAL , DATE and DATE ) . Although the conditions of transport in the airliner had been acceptable , those in the cargo plane had been very rudimentary : the NORP witnesses said that there had been CARDINAL rows of benches on which women and children ( CARDINAL ) had sat , with the men sitting on the floor or having to stand , and that a sort of tub had served as a toilet and had circulated between the rows . The estimated number of NORP passengers in the planes varied CARDINAL .

Mr GPE , Inspector from ORG , GPE , at the material time , said that the cargo planes resembled airliners with slightly less comfort ; in any event they had been equipped with seats or benches and with safety belts , and water and food had been served on board , and there had been toilets fixed to the floor . He had himself accompanied the cargo plane flight on DATE , and explained that the flight had lasted TIME , that there had been CARDINAL passengers on board and they had not complained about the conditions of transport but had thanked the members of his department on arrival in GPE . On the way back , the same plane had flown NORP nationals from GPE to GPE .

Mr Azarov , Deputy Head of ORG , GPE , at the material time , had been present at GPE and GPE and had boarded CARDINAL planes carrying NORP nationals being expelled to GPE . He said that the planes had been equipped with seats and benches , and that water and dry biscuits had been served on board .

Mr PERSON , Deputy Head of ORG at the material time , stated that he had been present at the airport when the NORP nationals were expelled and stressed that there had been no baggage restrictions ; on the contrary they had had their personal effects on them and the media had been present . Subsequently , in a letter of thanks sent by the Consul of GPE to the head of ORG of the town of PERSON ( PERSON ) the former had congratulated the NORP authorities on their good co - operation during the expulsion procedures , and had not filed a claim .

The NORP witnesses stressed that they were relieved to be back in GPE and did not envisage appealing against the expulsion orders to the consulate or embassy of GPE in GPE . In any case , during the procedures before the courts in GPE both the judges and the police officers had told them several times that it was pointless to appeal because there was an order from above to expel NORP nationals . Some also referred to practical obstacles such as the closure of the NORP consulate in GPE , while others spoke of long queues outside the consulate .

Mr GPE , Consul of GPE in GPE at the material time , said that after the repatriation of some of the diplomatic staff of the GPE embassy and consulate to GPE at DATE the embassy had continued operating normally , during the usual TIME ( TIME ) , with a reduced workforce of QUANTITY people ( diplomats and administrative staff ) at the embassy and CARDINAL diplomats at the consulate . The NORP nationals could therefore have lodged appeals or complaints DATE personally , or through ORG of GPE DATE which would have been transmitted to the appropriate authorities in GPE , but no appeal or complaint had been lodged . After diplomatic relations between the CARDINAL countries had been broken off , from DATE , GPE had kept an office open at the NORP embassy in GPE and GPE had also kept CARDINAL open at the NORP embassy in GPE . The respective diplomats of both countries could have been contacted there ( see GPE , § DATE ) . In their letter of DATE the respondent Government confirmed that following the evacuation of some of their diplomatic staff at DATE , CARDINAL members of the diplomatic staff had continued working at the NORP embassy in GPE and CARDINAL at the consulate .

ORG referred to a “ selective and intentional persecution campaign based on ethnic grounds , which clearly goes against the spirit of LAW No . CARDINAL to LAW ( ORG ) ... in which this group is clearly targeted through special militia operations to hunt down its population on streets , markets or in front of strategic places ( NORP consulate in GPE , ORG ) ... ” ( PACE report , § § CARDINAL - CARDINAL ) .

Non - governmental organisations referred to “ massive operations of control and repression directed against NORP of GPE and other NORP cities ” ( FIDH report , point PERSON “ the anti - NORP campaign of DATE ” , p. CARDINAL ) . NORP nationals and “ ethnic NORP ” were allegedly victims of a deliberate policy of detention and expulsion ( HRW report , p. CARDINAL ) .

NORP HRW cited the comments of PERSON , then Head of ORG in GPE ( State body advising the NORP President on all matters relating to civil society and human rights ) , who said that “ administrative and legal measures applied [ against NORP ] are unfounded : businesses employing ethnic NORP are being closed down , visas and registration papers legally obtained by NORP nationals are being cancelled , people are being illegally detained and [ expelled ] from GPE ” ( statement of DATE , p. CARDINAL of the report ) .

PERSON , a member of the same advisory council , and Head of the “ Migration and Law ” network and Chairperson of ORG , and member of the board of the “ FAC , at the material time , said in DATE that there had been “ organized persecution of NORP nationals ” . She considered that such “ harassment of a specific group of people [ was ] a form of inadmissible discrimination [ that could ] in no way be viewed as a legal method of fighting illegal migration ” ( speech in ORG on DATE ) .

Other NORP institutions also expressed their concern regarding the large number of NORP expelled and asked the NORP authorities to revoke all the measures taken against NORP nationals residing on their territory ( speech of DATE by PERSON , member of ORG for ORG and ORG ; Joint motion for a resolution of DATE of ORG on the situation in GPE , points ORG and CARDINAL and DATE ; Statement of DATE of ORG against Racism and Intolerance ( ECRI ) ) .

DATE . ORG said that the “ routine of expulsions ” followed a recurrent pattern all over the country : “ NORP stopped in the street under the pretext of examination of their documents were detained no matter whether their documents were in order or not and taken to the ORG stations where they were gathered in large groups and delivered to courts , where decisions on administrative penalty with expulsion of the territory of GPE were made in accordance with preliminary agreement with the courts , with no lawyers and without the courts looking into individual circumstances , the entire procedure taking from TIME . Often people , subjected to these measures , were not admitted to the trial room , detainees were kept in corridors or even in cars in which they were delivered there ” ( PACE report , § CARDINAL ) .

That description tallies with that of the FIDH and ORG ( FIDH report , pp . DATE under II-CARDINAL “ Development of the crisis and type of persecutions ” a ) “ Control and arrest operations ” , b ) “ Flagrant denial of justice and circumvention of the procedures ” , and ORG report , pp . CARDINAL under “ Arbitrary and illegal detention and expulsion of NORP ” ) .

According to ORG , “ while many expelled [ NORP nationals ] may technically have had a judicial decision ordering their expulsion , the manner in which those decisions were reached ( some in group trials ) , the lack of representation and capacity to mount a proper case against the expulsion , and the fact that many were effectively denied the right to appeal , points to GPE ’s failure to comply with its ORG obligations ” ( ORG report , p. CARDINAL ) .

The FIDH , for its part , indicated that “ the persons arrested were taken in groups to the courts , which in TIME ordered them to be expelled from GPE , preceded by a period of detention in a temporary detention centre for foreign citizens ( TsVSIG ) , regardless of the conditions or the individual ’s family situation ” ( FIDH report , p. CARDINAL ) .

It added that a lawyer from “ Civic Assistance ” , a NORP association , “ witnessed on several occasions mass miscarriages of justice during the campaign : not only did the arrestees have no right to a lawyer , but they were most frequently brought in groups to the courts by police officers . Once there , the judges dealt with the cases as though on a production line and usually without those concerned by the expulsion orders being present and without even having regard to the circumstances of each case . These notices of expulsion were presented to the detainees ; many signed thinking that they were signing a fine as part of a range of possible administrative penalties for offences against the immigration rules . On several occasions the persons concerned were discouraged in advance from appealing against the order on the ground that “ it would make matters worse ” . In some cases “ agreements ” were signed in the deportees’ place ” ( FIDH report , p. CARDINAL ) .

It also stated that “ a number of factors point to collusion between the police and the judicial authorities , establishing that this policy was devised in advance : in GPE evidence of collusion between the police and the courts lies in the fact that the latter had not listed any other cases during the periods when the police brought NORP before the courts . They were arrested at TIME and presented as a group before the courts at TIME The judges gave a larger number of decisions in DATE than they normally give in DATE ” ( FIDH report , p. CARDINAL ) .

With regard to the conditions of detention and expulsion , ORG referred to the witnesses it had heard during the mission undertaken by the co - rapporteurs who spoke of “ overcrowding ” and “ unbearable ” and “ inhuman ” conditions of detention . They had allegedly been deprived not only of medical assistance but also of any possibility of satisfying their basic needs .

That situation had resulted in the death of a CARDINAL-year - old NORP citizen , PERSON , who , according to witnesses , suffered from asthma . After being detained for DATE without medical assistance and without being able to go out into the fresh air , he had died after a journey lasting TIME between the detention centre in GPE and GPE ’s FAC on DATE . The Deputy Head of ORG at the material time , Mr GPE , said that the detention facility in question was being closed down . ORG also referred to the case of a second NORP national , PERSON , aged DATE , who had died on DATE in GPE detention centre no . DATE of inadequate medical assistance and after being refused urgent medical aid ( PACE report , § CARDINAL ) .

Lastly , ORG referred to the conditions in which NORP nationals had been transported by cargo flights at DATE . This had been done in violation of the norms of ORG as such transportation of passengers was life - threatening ( PACE report , § CARDINAL ) .

The FIDH specified that there were “ CARDINAL temporary detention centres for foreigners ( TsVSIG ) in GPE and the surrounding areas , which were mainly converted former sobering - up cells . Centres no . CARDINAL ( GPE district ) , no . CARDINAL ( in PERSON ) and no . CARDINAL ( in GPE ) were visited by staff from the “ ORG . In front of the one on FAC , there was a queue of police cars nearly QUANTITY km long waiting to offload arrested persons at a centre with space for CARDINAL people . Detainees said that there had been CARDINAL people instead of CARDINAL per cell , and that the food rations had not been increased . Moreover , there had been so many people that the TsVSIG had not even had time to draw up the documents discharging detainees . ” The FIDH also referred to CARDINAL cases of death in detention or during the journey prior to expulsion ( FIDH report , pp . DATE under ( c ) “ Conditions of detention and deaths in detention ” ) .

NORP HRW reported similar facts and also referred to CARDINAL cases of death in detention ( ORG report , pp . CARDINAL under “ Deaths of NORP in custody ” , and pp . CARDINAL - CARDINAL under “ Inhuman and degrading treatment ” ) .

On the first point ORG also referred to the case of PERSON and that of PERSON , who had allegedly been subjected to very tough conditions of detention and not been given the necessary medical assistance , which had resulted in their death . The case of CARDINAL other NORP nationals who had died in detention was also mentioned . Furthermore , the NORP authorities had allegedly failed to carry out sufficient investigations following those deaths despite their obligation to do so under LAW .

On the second point ORG indicated that many NORP nationals had been subjected to inhuman and degrading treatment on account of the poor conditions of detention and expulsion ( overcrowded cells , lack of water and food , and transporting CARDINAL NORP nationals by cargo plane ) .

Before undertaking an examination on the merits and an assessment of the evidence on the basis of each complaint , the ORG will set out all the written and oral evidence to which it has had regard and the principles of assessment that it will apply .

In order to establish the facts the ORG has based itself on the parties’ observations and the many documents submitted by them and on the statements of the witnesses heard in GPE .

It has also had regard to the reports by international governmental and non - governmental organisations such as ORG , ORG , the FIDH and the annual report of DATE of the Human Rights Commissioner of GPE ( NORP Ombudsman ) . Some of the documents submitted by the applicant Government also appear in these reports .

Furthermore , in letters of DATE and CARDINAL DATE and during the witness hearing the ORG requested the respondent Government to produce the following additional documents :

i ) DATE statistics regarding the expulsion of NORP nationals during DATE and DATE , to enable a comparison to be made between expulsions before and after DATE , during which mass arrests and expulsions of NORP nationals allegedly began ; the respondent Government replied that they kept only DATE and DATE statistics that they had submitted to the ORG ;

ii ) the CARDINAL circulars FAC . ORG and CARDINAL of DATE that had been issued by ORG of GPE and GPE and ORG of GPE respectively and to which the documents submitted by the applicant Government refer ; the respondent Government disputed the authenticity of those documents and said that they could not submit the circulars in question because they were classified “ ORG secret ” ( see paragraph CARDINAL above ) ;

iii ) the files relating to the disciplinary proceedings brought against NORP officials who had sent requests to various NORP schools asking for lists of NORP pupils ; the respondent Government submitted a copy of several documents indicating that disciplinary penalties had been imposed on the officials in question ;

iv ) statistics on the number of decisions given on appeal by the NORP courts against decisions expelling NORP nationals during the period in question ( DATE to DATE ) ; in their letter in reply of DATE the respondent Government again said that they did not have DATE statistics relating to the expulsion of NORP nationals ( the nationality of perpetrators of administrative offences did not appear in the statistics of ordinary courts and an electronic database for the entire GPE had existed only since DATE ) , but that they could nonetheless provide information obtained manually for the period concerned from the courts of CARDINAL regions of GPE by providing the ORG with copies of CARDINAL appeal decisions . It should be mentioned that CARDINAL of these decisions concern NORP nationals expelled during the period in question , CARDINAL of which set aside decisions of the courts of first instance . Moreover , of the CARDINAL appeal decisions submitted to the ORG , CARDINAL concerned GPE and CARDINAL GPE , whereas the majority of expulsions of NORP nationals took place in those CARDINAL cities . Lastly , CARDINAL appeal decision out of the CARDINAL concerning GPE and CARDINAL appeal decisions out of the CARDINAL concerning GPE concerned referrals back to the administrative authorities on the ground that the police officers had taken the NORP nationals directly to the courts without first taking them to ORG as provided for by law .

During DATE to CARDINAL DATE the delegation of judges of ORG heard a total of CARDINAL witnesses , CARDINAL of whom had been proposed by the applicant Government , QUANTITY by the respondent Government and CARDINAL chosen by the delegation .

The CARDINAL witnesses proposed by the applicant Government ( except witness no . CARDINAL , wife of the late Mr PERSON and who was an “ indirect ” witness to the events , and Mr PERSON , Consul of GPE in GPE at the material time ) are NORP nationals who were arrested , detained and expelled by the NORP authorities . Their evidence concerned the conditions of arrest , detention and expulsion in DATE .

The CARDINAL witnesses proposed by the respondent Government are public officials of GPE , whose evidence concerned in particular the conditions of arrest , detention and expulsion of NORP nationals , statistical data and the authenticity of the instructions issued by ORG of GPE and GPE and the circulars to which they refer .

The CARDINAL witnesses chosen by the ORG are Mr Eörsi , rapporteur of ORG at the material time , and PERSON , a human - rights official with the LOC mission in GPE at the material time .

The delegation had also planned to hear other witnesses , including Mr GPE , Acting Head of ORG of GPE and GPE at the material time , and presumed signatory to the instruction of DATE aiming to “ [ increase ] the effectiveness of the implementation of ... circular no . CARDINAL of CARDINAL ” ( see paragraph CARDINAL above ) . DATE before his hearing the representative of the respondent Government indicated that Mr GPE had been urgently admitted to hospital and submitted a hospital certificate to that effect .

The delegation had also wanted to hear PERSON , Commissioner for Human Rights of GPE at the material time , but he did not reply to the ORG ’s summons .

Lastly , the delegation had also wanted to hear PERSON , Head of ORG in GPE at the material time . However , it was not possible to hear her as a witness because , as explained in a letter of DATE , the respondent Government informed the ORG that PERSON was no longer a public official but a private individual and that they were therefore unable to provide the ORG with her address . It should be reiterated here that Contracting Parties have an obligation to serve any summons on a witness residing on its territory ( see Rule ACARDINAL § CARDINAL , first sentence , of the FAC to ORG ) .

In assessing evidence the ORG has adopted the standard of proof “ beyond reasonable doubt ” laid down by it in CARDINAL inter - State cases ( see GPE v. GPE , DATE , § CARDINAL , Series A no . CARDINAL , and GPE v. GPE [ ORG ] , no . CARDINAL , § CARDINAL , ORG CARDINALIV ) and which has since become part of its established case - law ( see , inter alia , ORG and Others v. GPE and GPE [ ORG ] , no . CARDINAL , § CARDINAL , ORG , and ORG and Others v. GPE , nos . ORG and CARDINAL , § CARDINAL , DATE ) .

However , it has never been its purpose to borrow the approach of the national legal systems that use that standard in criminal cases . The ORG ’s role is to rule not on guilt under criminal law or on civil liability but on Contracting States’ responsibility under the Convention . The specificity of its task under LAW to ensure the observance by LAW of their engagements to secure the fundamental rights enshrined in the Convention – conditions its approach to the issues of evidence and proof . In the proceedings before the ORG , there are no procedural barriers to the admissibility of evidence or predetermined formulae for its assessment . It adopts the conclusions that are , in its view , supported by the free evaluation of all evidence , including such inferences as may flow from the facts and the parties’ submissions . According to its established case - law , proof may follow from the coexistence of sufficiently strong , clear and concordant inferences or of similar unrebutted presumptions of fact . Moreover , the level of persuasion necessary for reaching a particular conclusion and , in this connection , the distribution of the burden of proof are intrinsically linked to the specificity of the facts , the nature of the allegation made and the Convention right at stake . ORG is also attentive to the seriousness that attaches to a ruling that a ORG has violated fundamental rights ( see , inter alia , PERSON and Others v. GPE [ ORG ] , ORG . MONEY and CARDINAL , § CARDINAL , ORG CARDINAL-VII , and PERSON the GPE , no . CARDINAL , § CARDINAL , ORG CARDINALIX ) .

In establishing the existence of an administrative practice , the ORG will not rely on the concept that the burden of proof is borne by CARDINAL or other of the CARDINAL Governments concerned , but will rather study all the material before it , from whatever source it originates ( see GPE v. the GPE and GPE v. GPE , cited above , ibid . ) . In addition , the conduct of the parties in relation to the ORG ’s efforts to obtain evidence may constitute an element to be taken into account ( see GPE v. the GPE ; ORG and Others ; and ORG and Others , cited above , ibid . ) .


Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing)

Jon Fridrik Kjølbro;Ledi Bianku;Nebojša Vučinić;Robert Spano;Stéphanie Mourou-Vikström

The applicant was born in DATE and lives in GPE .

On DATE a certain FAC lodged a criminal complaint against the applicant , claiming that he had issued an uncovered cheque dated DATE .

On DATE the PERSON public prosecutor ’s office indicted the applicant in ORG under section CARDINAL ( CARDINAL ) of PERSON no . DATE in force at the material time – for issuing an uncovered cheque . The cheque bore the applicant ’s name underneath the name of the company of which he was president of the executive board , and the address of the company on the cheque was indicated as being “ ... PERSON / GPE ” .

On DATE the trial court held a preparatory hearing ( tensip ) and ordered that a summons be served on the applicant .

On DATE the trial court sent a copy of the bill of indictment , together with the notice of the first hearing , to the address written on the cheque . On DATE the trial court asked the PERSON public prosecutor ’s office to confirm the applicant ’s identity and enquire about his full address and provide it with this information .

On DATE the summons was returned on the grounds that the applicant had left that address , leaving “ PERSON [ post box ] CARDINAL PERSON ” as an alternative address .

Within the context of the enquiries to find out what the applicant ’s new address was , it appears that the PERSON public prosecutor ’s office asked the police and the mayor of the neighbourhood ( muhtarlık ) to collect information . In that connection , the police went to the address written on the cheque and concluded that the applicant had left it . According to the information received from the mayor of the neighbourhood , the applicant had left that address without giving any notification .

On DATE the trial court held the first hearing in the absence of the applicant . The court decided to authorise his detention in absentia ( tevkif müzekkeresi ) with a view to obtaining his statements , under LAW of the former LAW , in force at the material time .

DATE and DATE the trial court waited for the detention order to be executed .

On DATE , while the criminal proceedings were ongoing , another court in GPE , namely ORG , sent a summons to the applicant ’s home address DATE “ ... Avcılar / GPE ” – requiring him to give evidence as a complainant in another set of criminal proceedings .

On DATE , in another set of criminal proceedings , the PERSON public prosecutor ’s office delivered a decision not to prosecute , in which it also indicated the applicant ’s address as being “ ... Avcılar / GPE ” .

On DATE the trial court once again attempted to serve the summons at the address written on the cheque , but failed to do so for the same reasons .

On DATE the trial court decided to serve the summons at the same address , in accordance with section CARDINAL ( CARDINAL ) of LAW ( Law no . CARDINAL ) .

On DATE the trial court convicted the applicant as charged and sentenced him to a fine ( ağır para cezası ) of MONEY ( GPE ) . That judgment was served on the applicant on DATE . The DATE time - limit for lodging an appeal against the judgment expired , and in the absence of an appeal it became final .

On an unspecified date in DATE several police officers from the LOC police station in GPE , GPE , went to the applicant ’s apartment with an arrest warrant and invited him to attend the police station . At the police station , the applicant was informed that an arrest warrant had been issued against him following his conviction by a criminal court , and that he would be put in prison unless he paid the MONEY ( TRY ) fine previously imposed by the court . The applicant , who was unaware of any criminal proceedings against him , requested the details of the judgment in question and applied to the registry of ORG for further information .

Upon examining the relevant case file at the registry of the first - instance court , the applicant discovered that he had been charged and convicted in absentia for issuing an uncovered cheque on DATE and sentenced to a fine of TRY CARDINAL , an amount corresponding to the amount of the cheque . Moreover , the judgment , which had been delivered on CARDINAL October CARDINAL by ORG , had become final in the absence of an appeal .

On DATE the applicant lodged an appeal with ORG , challenging the judgment in question on the grounds that it had been delivered in his absence and the accusations against him were ill - founded . He emphasised that he had not received any notice of the criminal proceedings or the judgment , not even when he had gone to the PERSON public prosecutor ’s office DATE prior to the delivery of the impugned judgment to obtain his criminal record details for an unrelated matter . He added that the claimant in the criminal proceedings , GPE , was his former girlfriend , and that he had given her a blank cheque as a guarantee that he would discharge their joint debt to a bank . They had in fact signed an official document on DATE in the presence of a lawyer confirming that FAC would only be entitled to cash this cheque if the applicant failed to discharge their joint debt to the bank . Upon settling the debt with the bank , the applicant had requested that FAC return the blank cheque to him , but FAC had failed to do so , alleging that she had lost it . He had accordingly reported the cheque as missing to the bank , and had asked to be notified in the event of any attempts to cash it . On DATE , very shortly after his move to a new address , his former girlfriend had apparently attempted to cash the cheque , and when the cheque had not cleared , had brought a criminal complaint against him . Despite his instructions , he had not been contacted by his bank when the cheque in question had been deposited by ORG , nor had he been advised that the cheque had bounced .

On DATE the Bakırköy Civil Court of First Instance issued a summary judgment dismissing the applicant ’s appeal as lodged out of time . It held that the judgment of CARDINAL DATE had been duly served on him on DATE in accordance with LAW no . CARDINAL , and the appeal should therefore have been submitted by DATE .

On DATE the applicant appealed against the summary judgment , reiterating the arguments he had previously submitted to ORG . He emphasised that , although his accurate address details could easily have been obtained from the mayor of the neighbourhood , the judgment of DATE had been served at the address which his company had moved out of on DATE . In his absence , it had apparently been posted on the door of the building . He therefore requested that the judgment which had been delivered in his absence be quashed or rectified .

On DATE ORG at ORG delivered her opinion on the applicant ’s appeal , where she requested that the first - instance court ’s judgment of CARDINAL DATE be quashed on account of the unlawful service of the initial judgment rendered in his absence .

On DATE ORG upheld the lower court ’s decision , holding that the judgment in question had been duly served on the applicant in accordance with LAW no . CARDINAL on Notifications .

On DATE , in accordance with LAW , the applicant requested that ORG at ORG lodge an application to have ORG decision set aside .

It appears that the applicant was imprisoned on DATE on account of his failure to pay the fine of TRY CARDINAL imposed by ORG on DATE .

On DATE the applicant was conditionally released .

On DATE ORG at ORG rejected the applicant ’s application under LAW , maintaining that the applicant ’s arguments had already been examined by ORG in its decision of DATE .


Violation of Article 5 - Right to liberty and security (Article 5-4 - Procedural guarantees of review);Violation of Article 5 - Right to liberty and security (Article 5-5 - Compensation)

Jon Fridrik Kjølbro;Julia Laffranque;Stéphanie Mourou-Vikström

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

On DATE the applicant was taken into police custody on suspicion of membership of an illegal organisation .

On DATE the investigating judge at ORG , after questioning the applicant , ordered his pre - trial detention .

On DATE the GPE public prosecutor filed an indictment with ORG .

The trial commenced before ORG and the first preparatory hearing was held on DATE .

In the subsequent hearings held DATE and DATE , the applicant appeared before the court and the judges ordered his continued detention .

The applicant filed an objection against the decision of CARDINAL DATE . On DATE the CARDINALth Chamber of ORG dismissed this objection without holding an oral hearing , and based on the public prosecutor ’s written opinion , which had not been communicated to the applicant or his representative .

On DATE the applicant was released from detention on remand .

According to the latest information in the case - file , the proceedings against the applicant are still pending before the first - instance court .


CASE OF HARAKCHIEV AND TOLUMOV v. BULGARIA

Preliminary objection dismissed (Article 35-1 - Exhaustion of domestic remedies);Remainder inadmissible;Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading punishment;Inhuman punishment) (Substantive aspect);Non-pecuniary damage - finding of violation sufficient;Non-pecuniary damage - award

George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Ledi Bianku;Päivi Hirvelä;Paul Mahoney;Zdravka Kalaydjieva

The applicant in the first application ( no . CARDINAL ) , Mr PERSON , was born in DATE . He is currently serving a whole life sentence ( see paragraphs CARDINAL and DATE below ) in FAC .

The applicant in the second application ( no . CARDINAL ) , Mr Tolumov , was born in DATE . He is currently serving a life sentence ( see paragraphs CARDINAL and DATE below ) in FAC .

DATE Mr PERSON , a driver and car mechanic , was convicted CARDINAL times of non - violent offences : theft and aggravated theft ( CARDINAL convictions ) , and fraud and aggravated fraud ( CARDINAL convictions ) . He was given sentences ranging from DATE imprisonment .

On DATE the ORG convicted PERSON PERSON of illegal possession of a firearm and CARDINAL armed robberies of motor vehicles carried out between DATE and DATE , CARDINAL of which had been accompanied by attempted murder and CARDINAL by murder . It sentenced him to whole life imprisonment .

On DATE ORG upheld Mr PERSON ’s conviction and sentence .

In a final judgment of DATE ( реш. № CARDINAL от CARDINAL ноември DATE г. по н. д. № CARDINAL г. , ORG , ORG н. о. ) ORG likewise upheld Mr PERSON ’s conviction and sentence . It held , inter alia , that in view of the gravity of his offences – in particular , the determination and cruelty with which they had been carried out – a more lenient sentence , such as life imprisonment ( доживотен затвор със замяна ) , would not be adequate . That conclusion could not be altered by the fact that Mr PERSON had confessed and had helped the investigating authorities to uncover his criminal activities .

Mr PERSON has been detained in FAC since DATE . He was initially placed under the “ enhanced regime ” ( see paragraph CARDINAL below ) . With the entry into force of the Execution of Punishments and Pre - Trial Detention Act on DATE , that regime was replaced by the “ severe regime ” ( see paragraph CARDINAL below ) by operation of law . On DATE ORG ( see paragraph CARDINAL below ) proposed that ORG place Mr PERSON under the “ special regime ” normally applicable to life prisoners , citing his “ negative attitude ” and lack of respect for internal order , as well as the fact that he should in any case have been placed under that regime from the outset . On DATE the ORG accepted the proposal . Mr PERSON ’s legal challenge against that decision , filed on DATE , was rejected by ORG and ORG as being out of time . The Government submitted that there was at present no intention on the part of the prison authorities to make further changes to Mr PERSON ’s prison regime .

DATE Mr PERSON was given CARDINAL disciplinary punishments . The latest such punishments , in DATE , were imposed in relation to ( a ) a scuffle between himself and another inmate during the DATE walk on TIME , and ( b ) the theft on DATE of food that another inmate had left in the communal toilet . In relation to the former , Mr PERSON was given a reprimand , and in relation to the latter isolation in a disciplinary cell for DATE .

Mr PERSON ’s cell – in which he is currently alone but which he apparently shared with another inmate DATE is in the prison ’s high - security wing , reserved for life prisoners . According to PERSON PERSON , the cell was quite small , especially bearing in mind that the furniture alone occupied QUANTITY , and was lit at TIME by a CARDINALwatt incandescent light bulb that was constantly on . According to the Government , the cell was not undersized . It measured CARDINAL by QUANTITY and was QUANTITY high , with a total floor space of QUANTITY . It was furnished with a metal locker , a double metal bunk bed , CARDINAL stools and a small table , all of which were attached to the floor for security reasons . It had a window , facing south , that measured CARDINAL by QUANTITY . Artificial lighting in the cell consisted of CARDINAL CARDINAL-watt luminescent light bulbs . According to Mr PERSON , the incandescent bulbs had only been replaced with luminescent bulbs in DATE . He also pointed out that the cell did not have any low - intensity night lighting .

PERSON Prison does not have a ventilation or airconditioning system . Mr PERSON claimed that as a result temperatures in his cell were very high in DATE and there was no fresh air . In DATE , heating was only turned on for periods of TIME , at TIME and in TIME . According to the Government , the cell window could be opened , which allowed the cell to be aired at any time . The prison had its own heating installation with CARDINAL boilers and a heat exchanger . The boilers were fired for TIME a day , but the water that they heated circulated in the heating installation permanently . According to Mr PERSON , the radiator in his cell was hot for TIME each day and the poor state of repair of the cell window and the metal door were factors contributing to the low temperature in the cell in DATE . Mr PERSON also submitted that as he had to dry his clothes in the cell , it was very damp . As a result , the paint and rendering were peeling off the walls .

According to Mr PERSON , the common areas of the prison could only be kept clean by bleaching with calcium hypochlorite , and the cells were only cleaned with water . In support of that assertion , Mr PERSON relied on the witness statement of CARDINAL of his co - inmates made in the course of proceedings brought by him . According to the Government , the common areas of the prison were not merely cleaned with bleach . They were cleaned DATE with detergents , and at least twice a year subjected to pest and rat control , as evident from CARDINAL invoices for such services carried out during DATE . Mr PERSON replied that those invoices did not prove that the detergents had indeed been used as alleged by the Government . He also submitted that his cell was constantly infested with cockroaches and mice , and that all his complaints to the prison administration in that respect had gone unheeded . He submitted further that , since the window of his cell was not covered with a net , insects came into the cell all the time , drawn by the smell of excrement and the constant lighting at TIME , and bit him .

There is no toilet or running water in the cell . Mr PERSON submitted that as a result , apart from the CARDINAL daily visits to the communal toilets , he had to use a plastic bucket to relieve himself . During the period he had had to share his cell with another inmate , he had had to do so in his presence . The lack of running water prevented him from washing his hands or the bucket after relieving himself . The Government pointed out that the toilet and bathroom in the high - security unit were accessible to inmates CARDINAL times a day , and also whenever they asked the guards . It could not therefore be said that Mr PERSON was forced to use the bucket to relieve himself ; that was his own choice . In fact he had CARDINAL buckets in his cell , in which he stored clothes , laundry and other items . Mr PERSON replied that , apart from the CARDINAL daily visits to the toilet , TIME the guards never opened his cell to let him visit the toilet . It was therefore not his choice to resort to the bucket for his sanitary needs .

Apart from his TIME DATE walk , Mr PERSON can leave his cell to visit the toilet CARDINAL times a day . During each of those visits , he can also empty the bucket , wash his hands , and fill plastic bottles with water for drinking and sanitary needs . According to him , the visits to the toilet lasted TIME and TIME at lunch and in TIME , and did not coincide with the visits of the other inmates in the unit .

According to Mr PERSON , inmates in FAC could only take a shower once every DATE . According to the Government , all inmates in the prison ’s high - security unit could take a shower twice a week .

According to Mr PERSON , visits by relatives or lawyers took place in a special room . Prisoners and visitors were separated by a wire net , and prisoners had to remain seated . A prison officer was always present . According to the Government , the prison officer present during visits was only there to ensure good order and could not overhear conversations . Visits by lawyers took place in a separate room , in which no other person was present . The only form of control there was visual monitoring . In that context , the Government drew attention to the fact that as a result of the many claims that he had brought against the prison authorities , until GPE Mr PERSON had spent DATE outside FAC , and DATE and DATE had spent DATE , or PERCENT of the time , outside the prison .

According to Mr PERSON , food in the prison was poorly prepared , of low quality , tasteless , served cold and in unhygienic conditions , and insufficient in quantity . Meat was served once DATE . The rest of the time food consisted of beans , lentils , cabbage and potatoes , served as soups or stews . According to the Government , the quantity and the chemical and calorie content of the food were fully adequate . The DATE portions comprised QUANTITY , and there was meat in the meals at least once DATE . Mr PERSON replied that “ meat ” in effect meant boiled bones or canned meat . Both parties submitted menus and tables in support of their respective assertions .

According to Mr PERSON , medical care in FAC consisted of routinely giving all inmates aspirin or GPE , and inmates had to purchase all other medicines themselves . According to the Government , the prison ’s medical centre was staffed by a general practitioner , CARDINAL feldshers ( paramedics – one for the main prison building and CARDINAL for each of the CARDINAL separate prison hostels ) , a nurse , a psychiatrist and a dentist . Medical examinations were carried out DATE , and in cases of emergency inmates could be taken to the emergency ward of ORG . Medical examinations in the high - security unit were normally carried out on DATE . Inmates could also consult outside specialists , or be treated in the prison hospitals in GPE and GPE . Medicines were normally provided by the prison medical centre , or could be obtained from outside the prison . The only medicine that Mr PERSON had had to obtain himself , because the centre had not had any in stock , had been PERSON ( clonazepam ) , at a unit cost of MONEY ( ORG ) . Mr PERSON replied , without giving further details , that he routinely had to purchase medicines himself . He also submitted that his dental care had consisted merely in extracting teeth ; in spite of the obvious need to provide him with dental prostheses , the prison authorities had failed to take any action in that respect . The Government replied that dental prostheses did not form part of the standard medical cover for any health - insured person in GPE , and could not be obtained free of charge .

The Government also asserted that Mr PERSON could see the social inspector in charge of his unit DATE ; he could ask to see a psychologist , the prison governor or deputy governor , the prison legal officer , or another member of the prison staff ; he could socialise with other inmates of the same category during his DATE walk and during meal times ; and he had access to cable television , with CARDINAL channels , to the prison library , and to religious services . For his part , Mr PERSON submitted that , in spite of having expressed his desire to do so , he had not been given any opportunity to work or take part in sport , cultural or educational activities . In reply , the Government stated that in DATE Mr PERSON had been allowed to take part in a yoga course in order to reduce his stress levels .

NORP The annual psychological assessments of Mr PERSON for DATE , DATE , DATE and DATE , submitted by the Government , are very similar . All of them say , often using the same language , that his conduct was characterised by the “ campaign that he ha[d ] mounted ” against the institutions and prison officials with whom he had had contact , which chiefly consisted in his bringing various legal challenges and in inciting other prisoners to give “ false evidence ” in his favour . Dialogue with him was very difficult , chiefly because of his lack of respect for authority , acute awareness of his own rights , stubbornness , and tendency to call the officials concerned to give evidence in the cases that he was bringing against the prison authorities . The risk of serious harm was high in view of his personality , the nature of his offences and the rigidity of his conduct . He had been verbally aggressive to prison staff .

NORP Since his incarceration in DATE Mr PERSON has brought a number of claims for damages against the authorities under LAW DATE ( see paragraph CARDINAL below ) .

In a final judgment of CARDINAL DATE ( реш. № DATE от CARDINAL февруари DATE г. по адм. д. № CARDINAL/CARDINAL г. , PERSON , ORG ) ORG dismissed a claim for damages brought by Mr PERSON under that provision in relation to the failure of the prison administration to provide him with newspapers . The court held that Mr PERSON had not proved that he had suffered any non - pecuniary damage as a result of that failure .

In a final judgment of CARDINAL DATE ( реш. № DATE от CARDINAL май DATE г. по адм. д. № DATE г. , ВАС , III о. ) ORG dismissed a claim for damages brought by Mr PERSON under the above - mentioned provision in relation to a failure by the prison administration to organise his DATE walk in such a way as to compensate him for CARDINAL he had previously missed on account of bad weather . The court DATE overturning the lower court ’s ruling on that point – held that Mr PERSON had failed to establish that he had suffered any non - pecuniary damage ; he could not simply be assumed to have sustained damage on the basis of the prison administration ’s failure to organise a daily walk .

In a final judgment of DATE ( реш. № CARDINAL от CARDINAL януари DATE г. по адм. д. № DATE г. , PERSON , ORG ) ORG dismissed a claim for damages brought by Mr PERSON under the above - mentioned provision in relation to the refusal of the prison administration to allow him to watch films in the prison ’s video - projection room . The court held that that would have been incompatible with the requirement , imposed by the “ special regime ” under which Mr PERSON was serving his sentence ( see paragraphs CARDINAL and CARDINAL below ) , that he remain isolated in a locked cell at all times . The prison administration ’s refusal had therefore not been unlawful .

In a final judgment of CARDINAL DATE ( реш. № DATE от CARDINAL ноември DATE г. по адм. д. № DATE г. , PERSON , ORG ) ORG allowed a claim for damages brought by Mr PERSON under the above - mentioned provision in relation to the failure of the prison administration , for DATE , to provide him with shoes free of charge , as required by statute . Relying on LAW , the court held that that failure had humiliated Mr PERSON and had diminished his human dignity . The court went on to say that Mr PERSON ’s feelings of humiliation had been exacerbated as a result of his solitary confinement , and awarded him BGN CARDINAL ( the equivalent of CARDINAL,CARDINAL.CARDINAL euros ( ORG ) ) , plus interest .

On DATE Mr GPE brought CARDINAL claims for damages against ORG and CARDINAL identical claims for damages against ORG for the Execution of Sentences , which is a unit within ORG . He considered that the Ministry bore responsibility for all acts and omissions relating to his imprisonment before DATE , the date of entry into force of the Execution of Punishments and Pre - Trial Detention Act of DATE ( see paragraph CARDINAL below ) , and that the Chief Directorate bore responsibility for all acts and omissions relating to his imprisonment after that date .

In a judgment of DATE ( реш. № CARDINAL от CARDINAL декември DATE г. по адм. д. № CARDINAL г. , PERSON ) ORG , having carried out an inspection on the spot , allowed Mr PERSON ’s claims against ORG and ORG for the Execution of Sentences in relation to ( a ) the material conditions of his detention ; ( b ) the failure of the prison administration to provide him with clothing , shoes and bed linen ; ( c ) the failure of the prison administration to put in place conditions in which he could keep in good physical shape ; and ( d ) the failure of the prison administration to enable him to take his outdoor exercise . The court dismissed the remaining claims , which concerned ( a ) the failure of the prison administration to provide Mr GPE with toiletries ; ( b ) the quality and quantity of the food that had been provided to him ; ( c ) the failure of the prison administration to provide him with dental prostheses ; ( d ) the failure of the prison administration to provide him with conditions allowing him to keep his mental health intact ; and ( e ) the failure of the prison administration to provide him with work . The court awarded Mr PERSON a total of ORG CARDINAL ( the equivalent of ORG CARDINAL,CARDINAL.CARDINAL ) . It held , in particular , that the conditions of his detention had been in breach of LAW and that he had accordingly suffered non - pecuniary damage . However , the court also held that the claim relating to the material conditions of detention was time - barred on the ground that it related to a period of time that predated the claim by DATE .

In its findings of fact the court noted , inter alia , that under the regime in the ward where Mr PERSON was being detained , he had to spend TIME in his cell and could only leave it during his DATE walk and CARDINAL visits to the toilet . He was not allowed to go to the prison canteen or library . His cell was adequate in size for CARDINAL prisoner , but too small for CARDINAL , and did not have a toilet or running water . As result , outside toilet times , Mr PERSON had to use a bucket . In DATE the cell was too cold owing to inadequate heating , and in DATE full of insects as a result of the lack of a window net . The cell was infested with cockroaches , moles and even rats , and there was no indication that the prison administration had disinfested it regularly . When the cell was locked , the only way to call the guards was to bang continuously on the metal door ; the guards did not always respond , especially at TIME . Mr PERSON did not have adequate materials with which to clean his cell , and evidence of the provision of cleaning products was inconclusive . It was undisputed that the prison administration had not provided him with work ; that had indeed been very difficult in view of the limitations imposed by his prison regime . Social work with all life prisoners had been very restricted , consisting essentially of meetings whenever a problem occurred . Relations between PERSON PERSON and the prison social worker assigned to deal with him were difficult , and their meetings rare . The prison psychologist had met with Mr PERSON several times , but had stopped the meetings because he was displeased that they were taking place in the presence of a guard .

Mr PERSON , ORG and ORG for the Execution of Sentences all appealed . However , as Mr PERSON had failed to pay the requisite court fee , ORG refused to examine his appeal ( see опр. № CARDINAL от CARDINAL юни DATE г. по адм. д. № DATE г. PERSON , ORG , upheld by опр. № DATE от CARDINAL ноември DATE г. по адм. д. № CARDINAL/CARDINAL г. , PERSON , петчл. с-в ) . As a result , the only part of the case that remained pending were the claims concerning the material conditions of Mr PERSON ’s detention and the failure of the prison administration to provide him with clothing , shoes and bed linen .

In a judgment of DATE ( реш. № CARDINAL от CARDINAL януари DATE г. по адм. д. № DATE г. , PERSON , ORG ) ORG quashed the lower court ’s judgment in the part still under appeal and remitted the case to the lower court . It held that the lower court had failed to address in sufficient depth the conflicting witness statements of inmates on the one hand , and prison staff on the other hand , and analyse them in the light of the voluminous written evidence in the case . It had also failed to subject the expert report that it had obtained in the course of the proceedings to proper scrutiny , and had uncritically accepted it as correct .

In a judgment of DATE ( реш. № CARDINAL от CARDINAL април DATE г. по адм. д. № CARDINAL г. , АС-Стара ORG ) ORG found that the claims against ORG , which concerned the period before DATE , following which LAW had come into force , were inadmissible , but that the claims against ORG , which concerned the period after DATE , were admissible and , when analysed by reference to , inter alia , LAW and this ORG ’s case - law under that provision , well - founded . It awarded Mr PERSON BGN CARDINAL ( ORG CARDINAL ) . The court found that Mr PERSON ’s cell did not have ventilation and was damp , and that the cell window was not equipped with an insectproof net . In DATE the cell was cold owing to the lack of adequate heating , and in DATE too hot . The court went on to note that the cell did not have a toilet or running water , and that access to the communal toilets was very restrictive , with no real possibility to use them outside the CARDINAL brief daily visits . It also observed that , in spite of the efforts of the prison authorities , the prison was infested with cockroaches and rats ; that the authorities were not providing Mr PERSON with adequate cleaning products ; and that the furniture in the cell was old and worn . It was true that work had been carried out in the cell in DATE and then in DATE , but that had only consisted in repainting it .

Mr PERSON and ORG for the Execution of Sentences appealed . The proceedings on appeal ( адм. д. № DATE г. ) are still pending before ORG . A hearing was due to be held on DATE , but the case was adjourned sine die on account of the failure of Mr PERSON ’s court - appointed counsel to appear .

As can be seen from the documents in the case file , Mr GPE , a driver by profession , had CARDINAL previous convictions and had spent DATE in prison in DATE . In DATE he was convicted on a charge of armed robbery accompanied by murder and a further charge of murder and sentenced to life imprisonment .

Mr GPE was placed in FAC on DATE . In DATE , when his life sentence imprisonment apparently became final , he was placed under the “ enhanced regime ” ( see paragraph QUANTITY below ) . With the entry into force of the Execution of Punishments and PreTrial Detention Act of DATE on DATE , that regime was replaced with the “ special regime ” ( see paragraph CARDINAL below ) by operation of law . On DATE the competent ORG decided to change Mr Tolumov ’s regime from “ special ” to “ severe ” . However , according to Mr Tolumov and an affidavit of another life prisoner detained in the same unit , he continues to be kept locked in his cell and is handcuffed whenever he is taken out of the highsecurity unit .

During his stay in prison , Mr GPE has been given CARDINAL disciplinary punishments , the latest of which was in DATE . CARDINAL of those punishments , imposed in in DATE , was isolation in a disciplinary cell for DATE for his involvement in a scuffle with another prisoner . He was , on the other hand , given rewards for good conduct on a number of occasions .

In FAC has spent time in cells nos . CARDINAL , CARDINAL and DATE in the prison ’s high - security unit , situated on the first floor . He submitted that during unspecified periods of time he had had to share those cells with other inmates . The Government submitted that cell no . CARDINAL , in which Mr GPE was now being detained , was QUANTITY in size , and that Mr Tolumov was alone in it . According to the Government , the cell had a window measuring QUANTITY . Artificial lighting was provided by a CARDINAL incandescent light bulb , which was not on during DATE and was turned off at TIME According to Mr Tolumov , the light bulb was very dim , installed behind a grille , and on all the time .

Mr GPE ’s cell is furnished with a plank bed , CARDINAL small cabinets , a table , which is fixed to the floor , and a stool , also fixed to the floor . Mr GPE submitted that humidity from the communal bathroom , which was adjacent to the cell , penetrated the walls and the floor and produced mould on one of the walls . An additional factor that increased dampness in the cell was the need to dry clothes in it . The Government submitted that the cell adjoined the part of the bathroom which contained the sinks and did not generate humidity ; it was therefore impossible for mould to appear on the cell walls . According to an affidavit drawn up by one of Mr PERSON ’s fellow inmates in DATE , humidity was indeed permeating the walls of the bathroom , and for that reason in DATE the prison authorities had had the gaps between the bathroom tiles filled in , unfortunately to little effect .

Plovdiv Prison does not have a ventilation or air - conditioning system . Mr PERSON claimed that as a result temperatures in his cell were very high in DATE and there was no fresh air . In DATE , heating was inadequate . The Government pointed out the cell window could be opened , and that Mr PERSON had a ventilator . As for heating , the prison had its own heating installation , which was normally turned on QUANTITY , and permanently on DATE .

None of the cells in which Mr PERSON was detained had a toilet or running water . Mr GPE submitted that as a result , apart from the daily visits to the communal toilets , he had to use a plastic bucket to relieve himself . During the period he had had to share his cell with another inmate , he had had to relieve himself in his presence . The lack of running water prevented him from washing his hands or the bucket after relieving himself . The Government submitted that the communal toilet and bathroom in the high - security unit were accessible to Mr Tolumov CARDINAL times a day , and also whenever he asked the guards .

Mr GPE submitted that on DATE he could leave his cell once for his TIME DATE walk and CARDINAL more times , for TIME , to visit the toilet . Mr PERSON also submitted that he took his meals in his cell . The Government submitted that all prisoners in the high - security unit could leave their cells once for their DATE walk , and in addition CARDINAL times a day , for TIME each time , for meals and visits to the toilet . According to an affidavit drawn up by one of Mr Tolumov ’s fellow inmates in DATE , the practice of allowing inmates in the high - security unit to visit the toilet CARDINAL times a day instead of CARDINAL had been introduced very recently . According to a document produced by the Government , since DATE Mr Tolumov could also visit the prison gymnasium CARDINAL times a week : TIME on DATE , DATE and DATE . Mr PERSON submitted that each time he was taken out of the prison ’s high - security unit he was handcuffed . The Government submitted that he was only handcuffed when taken out of the prison for transfers .

According to Mr GPE , the food in prison was poorly prepared , of low quality , tasteless to the point of being inedible , and insufficient in quantity . According to the Government , the quantity and the calorie content of the food were fully adequate . Mr PERSON was being provided with NORP meals on account of an illness , as well as fresh fruit and vegetables . In support of their assertion , the Government provided CARDINAL randomly chosen DATE menus . Mr Tolumov disputed the accuracy of those menus and submitted that he had never been given the meals stated in them . According to him , the “ fresh fruit and vegetables ” consisted of a DATE portion of CARDINAL carrots .

According to Mr Tolumov , medical care in FAC consisted of routinely giving all inmates aspirin or analgin , and inmates had to purchase all other medicines themselves . According to the Government , the prison ’s medical centre was staffed by a general practitioner , a feldsher , a psychiatrist and a dentist . Medical and dental examinations were carried out DATE . Mr PERSON could also consult outside specialists , and since DATE he had been examined CARDINAL times , by a cardiologist , a surgeon , an ophthalmologist , an endocrinologist and a dermatologist . All medicines required for Mr Tolumov ’s treatment had been covered either by the national health insurance fund or the prison ’s budget .

The Government asserted , further , that Mr Tolumov could see the social inspector in charge of his unit DATE . He could also ask to see a psychologist , the prison governor or deputy governor , the prison legal officer , or another member of the prison staff . He could also socialise with other inmates of the same category during his DATE walk and during meal times . He had access to cable television , with CARDINAL channels , to the prison library , and to religious services . For his part , Mr Tolumov submitted that he could not attend religious services , and that , in spite of having expressed his desire to do so , he had not been given any opportunity to work or take part in other meaningful activities . The Government went on to say that at present Mr Tolumov was enrolled in a basic computer literacy class that he attended each DATE TIME

The DATE psychological assessments of Mr GPE for DATE , DATE , DATE and DATE , submitted by the Government , are quite similar . All of them say , often using the same language , that he has not changed his thinking and attitudes ( though the DATE report says that it was possible to detect a positive trend in that respect ) , but that he was not making any unjustified claims . He was able to defend his position , but usually avoided getting drawn into conflicts , and treated prison staff with respect . The risk of his hurting himself or others was average . He had expressed the wish to work , but it had not been possible to find work for him . He had willingly taken part in activities .

Mr GPE submitted that all letters from his legal representative before the Court were being opened and read by the prison administration . He also submitted that he had to hand over all letters to his legal representative to the prison administration without sealing the envelopes . The monitoring of his correspondence was proved by the letter “ P ” stamped on the back of each envelope .

In support of his allegations , Mr Tolumov submitted photocopies of the envelopes of CARDINAL letters that he had sent to his legal representative in DATE , DATE and DATE . They bear illegible postmarks and the word “ checked ” is stamped on the back of each one .


CASE OF STANKA MIRKOVIĆ AND OTHERS v. MONTENEGRO

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

Jon Fridrik Kjølbro;Julia Laffranque;Nebojša Vučinić;Stéphanie Mourou-Vikström;Ksenija Turković

Details of the applicants are set out in the appendix .

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

On DATE the third and fourth applicants filed a request with ORG ( hereinafter “ the Commission ” ) , seeking compensation for land expropriated from their legal predecessor in DATE .

DATE and CARDINAL DATE the first and second applicants made statements waiving their rights in respect of the property belonging to the same legal predecessor in favour of the third and fourth applicants .

On DATE the Commission ruled in favour of the third and fourth applicants .

On DATE ORG quashed that decision upon an appeal filed on DATE by ORG ( PERSON državni tužilac ) in his capacity as legal representative of the respondent State .

On DATE the Commission issued a new decision , awarding compensation to all the applicants as they were all heirs of the legal predecessor . In so doing , it also examined the waiver statements of the first and second applicants made in DATE , but considered that , pursuant to section CARDINAL of ORG , such waiver statements could only be validly made in non - contentious proceedings before a competent court ( see paragraph CARDINAL below ) .

DATE and DATE the competent secondinstance administrative body ( firstly ORG and ORG ) and ORG , before which the case was first brought on an unspecified date in DATE , issued CARDINAL decisions in total ( CARDINAL decisions each ) . The second - instance body ruled upon a series of appeals and gave decisions within DATE , DATE , DATE , DATE , DATE , DATE , DATE , and DATE . ORG gave rulings within DATE and DATE , DATE and DATE , DATE , DATE and DATE , DATE , DATE and DATE , DATE and DATE , and DATE and DATE .

On CARDINAL occasions , when initiating an administrative dispute before ORG , the applicants explicitly referred to section CARDINAL and/or section CARDINAL of LAW ( see paragraph CARDINAL below ) and urged ORG to decide on the merits of their request . ORG never ruled on the merits of the initial compensation request , but instead quashed or upheld the quashing of the first - instance decision of the Commission . Its last decision was issued on DATE , in substance remitting the case once again to the Commission .

On DATE ORG upheld ORG decision . ORG decision was served on the applicants on DATE .

On DATE the applicants each lodged a constitutional appeal against the decision of ORG , relying on , inter alia , Articles CARDINAL and CARDINAL of the Convention . The Government submitted that , on DATE , in addition to those constitutional appeals against ORG decision , the applicants had also each lodged a second constitutional appeal against the decision of ORG DATE . No copies of those second constitutional appeals were provided by either party .

On DATE ORG rejected the applicants’ constitutional appeals against ORG decision as premature , given that the ORG was still considering their compensation request .

On DATE ORG issued another decision dismissing the applicants’ constitutional appeals . The decision stated that the applicants’ constitutional appeals had been filed against the judgments of ORG and ORG . In its ruling , ORG constantly referred to the “ impugned judgments ” . There is no information in the case file as to when that decision was served on the applicants .

On DATE , at a hearing before the Commission , the proceedings were adjourned at the applicants’ request until this ORG ruled on their applications .