Remainder inadmissible;Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life;Respect for private life);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy);Non-pecuniary damage - award

Anatoly Kovler;Elisabeth Steiner;Erik Møse;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Peer Lorenzen

The applicants were born in DATE and DATE respectively and live in GPE .

The first applicant is a person divested of legal capacity owing to his mental and physical retardation . He goes to a workshop for adults at the LANGUAGE primary school in GPE for TIME a week . He is taken care of by his mother , the second applicant . The medical documentation of DATE submitted in respect of the first applicant describes his health as follows :

“ ... in his very early childhood he suffered from purulent meningitis , which resulted in permanent consequences and epilepsy . He is retarded in his mental and physical development and is under the constant supervision of a neurologist and psychiatrist . Owing to hydrocephalus he has had a Pudenz valve [ a type of cerebrospinal fluid shunt ] implanted . ... his eyesight is very poor ... and he is dependent on his mother as regards feeding , dressing , personal hygiene and moving about . His spine is mobile but painful in the lower region . ... he suffers from severe foot deformation , ... has difficulty walking ; walking on his toes and heels is not possible . Mentally he is emotionally distant , fearful and he has a poor vocabulary . ... ”

The applicants live in a ground - floor flat in a block of flats in ORG , a part of GPE . The PERSON primary school is nearby in their neighbourhood .

It appears that the applicants were subjected to harassment DATE and DATE . They alleged that pupils from the PERSON primary school , all minors , frequently harassed them , and in particular the first applicant , at all times of DATE , especially when the pupils returned home from school in groups and in TIME when they gathered without parental supervision on and around a wooden bench in front of the balcony of the applicants’ flat . The harassment , in their submission , was motivated by the first applicant ’s health and both NORP origin . A larger group of children , also minors , came DATE to a park in front of the applicants’ flat , shouted obscenities at the first applicant , called him names and wrote insulting messages on the pavement . The children often rang the applicants’ bell , asking when the first applicant was going out . They often spat at him .

A police report of DATE shows that the second applicant called the police at TIME and complained that unknown young persons were harassing her son and had smashed some objects on her balcony . The police arrived at the applicants’ home at TIME and the second applicant told them that at TIME she and the first applicant had left the flat and that when they had returned at TIME she had found the balcony ruined and all the flower beds torn up . She also told the police that the first applicant had been harassed for a longer period of time by children in the neighbourhood on account of his mental retardation . She named CARDINAL of the children .

On DATE ORG ordered the supervision of the parental care of GPE , a pupil at PERSON primary school , on account of his poor school results , problematic behaviour and tendency to commit criminal offences . There was no mention of his involvement in the harassment of the applicants .

A medical report drawn up on DATE shows that the first applicant had been psychologically and physically harassed in the street and that he had cigarette burns on both hands . The doctor asked the social authorities to institute proceedings for the protection of the first applicant as a person with serious mental disorders and described him as a peaceful and benign person who could not and did not know how to defend himself from the abusers .

NORP In a letter of DATE to the ORG , the second applicant complained that on DATE CARDINAL children , GPE and GPE , had harassed the first applicant . She alleged that while riding their bicycles they had approached the first applicant and burned his hands with cigarettes . She also complained that the first applicant had been continually harassed by children attending a nearby school on the basis of his mental retardation and added that she had on numerous occasions complained to ORG and the authorities of the PERSON primary school , but to no avail .

On DATE the applicants’ lawyer complained to the police about the incident of DATE .

A police report of CARDINAL DATE records that on DATE on the premises of FAC the police interviewed GPE , born in DATE , and PERSON , born in DATE . The relevant part of the report in respect of PERSON reads :

“ When asked whether he remembers the event of DATE in ... GPE , [ GPE ] said that at TIME he was there with his friend PERSON , who is in the seventh grade at ORG , and that PERSON , an older boy from the seventh grade of the same school , arrived together with CARDINAL men , unknown to him , who were playing with a ball . A person who is disabled and has had problems from birth and who lives in a block of flats in ... Street was playing between the buildings . At CARDINAL point , ORG lit a cigarette , approached PERSON and burned his right hand several times , after which they all ran away because that person started to shout . ”

The relevant part of the report in respect of PERSON reads :

“ When asked whether he remembers the event of DATE in ... GPE , concerning the harassment of a disabled person , PERSON , [ ORG ] says that he was not present on that occasion but that at DATE during the TIME break he had met GPE , who is in the fifth grade at the same school and who told him that he [ GPE ] and GPE at TIME had burned with a cigarette the hand of a person named PERSON in ... Street who lives on that street and is disabled .

When asked a further question as to whether he knew what that person looks like , he answered that he used to go to play on that street with other boys from the neighbourhood and he saw that person , who is CARDINAL , strongly built , has short salt - and - pepper hair and a pale complexion and has difficulty speaking . That person plays with other children who tease him and he runs after them and beats them . ”

A police report of CARDINAL DATE records that on DATE on the premises of FAC the police interviewed GPE , born in DATE . The relevant part of the report reads :

“ When asked whether he remembers the event of DATE in ... GPE , concerning the harassment of a disabled person , PERSON , DATE , [ GPE ] said that he remembered that occasion , that it was a DATE ... and that he took his bicycle and went ... with GPE to ... Street , where they saw PERSON , a person disabled from birth , between the buildings , playing with a ball with some children who took the ball and did not want to return it to him . When he saw this , he [ GPE ] asked the children why they did not give the ball back to PERSON , and PERSON started to shout and wave his hands . The children then threw the ball and he took it . He [ GPE ] was holding a cigarette in his left hand ... and as he was passing PERSON on his bicycle he [ PERSON ] started to wave his hands and slapped him a few times on the hand in which he was holding the cigarette and thus PERSON burned his hand . He was sure that he burned PERSON only once and he was sorry for it . He did not understand why PERSON reacted in such a manner because it was not his [ GPE ’s ] fault that some children took his ball . The pupil PERSON was not with them .

When asked a further question as to whether PERSON had problems with other children , [ GPE ] answered that he is often on that street where PERSON plays ball with other boys and that these children tease PERSON because of his illness ... and then he runs after them and catches them .

In the end [ GPE ’s ] mother PERSON was advised to keep an eye on GPE ’s behaviour . She said that she had no problems with him and she did not know why he had done this . ”

On DATE the II FAC sent a report to the GPE State Attorney ’s ORG stating that

– on DATE they had received a letter from ORG stating that it had received a letter from the second applicant in which she had alleged that her son had been ill - treated by GPE and others and enclosed medical documentation ; and

– on DATE they had received a letter from the ORG stating that she had also received a letter from the second applicant who was seeking help in connection with the frequent harassment of the first applicant .

The police also informed the GPE State Attorney ’s ORG about the interviews they had conducted with the children GPE , GPE and ORG

In a letter of CARDINAL DATE the II FAC informed the ORG that they had interviewed the children GPE and GPE , that they had contacted the headmaster of PERSON primary school , that the police officers from the station had been informed about the problems and that they had regularly patrolled the streets in question .

On DATE the police informed ORG that they had established that on DATE at TIME the first applicant had been playing with a ball in the street with some boys from the neighbourhood who had taken his ball away , which had upset him . When the boys GPE and GPE had gone past the first applicant he had waved his hands and GPE had unintentionally burned them .

On DATE ORG drew up a report on the first applicant . The relevant part of the report reads :

On DATE [ the first applicant ’s ] mother , PERSON , complained to us about harassment of PERSON , alleging that the children ... were visiting the girls PERSON and PERSON , who lived in their block of flats . The PERSON girls said that they had not harassed PERSON and that the leader of the group had been PERSON

An agreement has been reached with the PERSON girls and their mother , GPE , that the girls will stop hanging around in front of the block of flats and will find another place to do so in order to avoid conflicts .

H. and her parents were summoned to this office . H. said that she would no longer hang around in front of that block of flats and that there had been peace for a time .

After that the boys started to come , in different groups , so that PERSON could not tell their names , but she knew that they attended PERSON primary school .

PERSON again complained of harassment on DATE , when PERSON had been burned with cigarettes and [ she said that ] the harassment had continued .

On DATE an interview with PERSON was carried out . [ She said ] that the problems had continued . There were constantly new children who provoked PERSON , mostly acquainted with the PERSON girls . There would be peace for DATE and then the problems would start again . She had good relations with the school counsellor , the defectologist and the headmaster .

PERSON stated : ‘ On DATE first the girls came and stood next to the bench . PERSON told PERSON to come inside because she knew how afraid he was of them . They said that he did not need to be afraid because they would soon leave . Then a group of boys came and sprayed PERSON with water from a balloon.’

PERSON also said that lately PERSON had again started to get children to meet up in front of the building , which upset PERSON .

The police and the school were informed about the above events .

The school [ authorities ] talked to all the children who had been reported and to their parents .

The police carried out an inquiry [ and interviewed ] the children who had been present when PERSON was burned .

In order to prevent further harassment we wrote to the school [ authorities , asking them ] to hold meetings with all children and parents at the beginning of DATE , in all classes , to inform everyone of the problem and to make it clear that they were all responsible for the ill - treatment until the perpetrators were identified . It was also suggested that lectures and workshops with children be held in order for them to understand that there were persons with disabilities who had the same rights as everybody else – to walk about and live their lives outside their flats without being harassed by anyone .

It was agreed with police officer GPE from FAC that the police in charge of that neighbourhood would keep a closer eye on and patrol more frequently the street in order to identify the perpetrators of the harassment .

On DATE a visit of the family was carried out and only PERSON was found ; he did not know where his mother was and also said that the children had not teased him lately . PERSON was in the flat and there were no children around the building .

On DATE the GPE State Attorney ’s Office informed the second applicant that the perpetrators of the criminal offence of violent behaviour under LAW were GPE and GPE , who were children DATE , and that therefore no criminal proceedings could be instituted against them . The second applicant was instructed that she could bring a claim for compensation in civil proceedings .

A police report of CARDINAL DATE states that on DATE the second applicant called the police at TIME complaining about noise in the park . When the police arrived at TIME , the second applicant told them that in the meantime the children had left .

A medical report in respect of the first applicant drawn up on DATE indicates that he had constantly been harassed by children , who had burned his hands , shouted at him and made noise in front of the applicants’ balcony . It stated that it was necessary for the first applicant to spend time outdoors .

A report drawn up on DATE by ORG indicates that they had interviewed GPE and his mother . Since GPE expressed regret about the incident of DATE , there was no need for any further measures .

On an unspecified date in DATE the headmaster of PERSON primary school sent a letter to the parents informing them that in their neighbourhood lived a young man with disabilities named PERSON who had been frequently harassed by schoolchildren . The headmaster expressly stated that the children had admitted to “ a number of brutal acts ” against PERSON , such as making derogatory remarks , using insulting language and swearing , behaving provocatively , taking his ball and burning his hands with cigarettes . The parents were asked to talk to their children and warn them about the possible consequences of such behaviour .

The relevant part of the written record of a parent - teacher meeting held on DATE at PERSON primary school reads as follows :

At all parent - teacher meetings in DATE we have drawn the GPE attention to a young man with special needs who lives in the school ’s neighbourhood and who has been harassed by pupils from our school , mostly verbally and sometimes physically . His mother often seeks help from the school employees , and a social welfare centre and the Ombudswoman for Persons with Disabilities have also been involved . The parents were asked to talk to their children and raise their awareness about the problem of accepting differences and the need for peaceful coexistence .

The parents present commented on the matter . Some of them mentioned that the young man in question had sometimes also been aggressive , that he had approached young girls in an inappropriate manner and that they had expressed a fear of him and tended to avoid the area where he usually was . Some also commented that he should not be out in public and that he should spend time in conditions appropriate for him or in the park under the constant supervision of a guardian . The headmaster noted all the comments and promised to contact the competent social welfare centre .

On DATE the ORG lawyer sent a written complaint to the GPE Municipality ORG Attorney ’s Office . She stated that her clients were CARDINAL NORP nationals of NORP origin , a mother and her son who suffered from mental and physical retardation . She explained that her clients lived QUANTITY away from PERSON primary school and that they had been constantly harassed by schoolchildren , at all times of DATE and mainly when the children went home from school in groups and in TIME when they gathered around a bench in front of the applicants’ balcony without parental supervision . She alleged that the harassment had already been going on for DATE and was motivated by the NORP origin and the first applicant ’s disability . A group of children aged from CARDINAL to CARDINAL hung around DATE in front of the block of flats where the applicants lived , shouting insults and obscenities and calling them names . They also wrote insulting remarks on the pavement in front of the building .

The lawyer further described the incident of DATE . Relying on Articles CARDINAL and CARDINAL of the Convention , she complained that there was no effective remedy in the NORP legal system affording protection from violent acts by children .

She also described the events of CARDINAL and DATE , when a group of children had insulted the first applicant and , on DATE , taken a ball from him . On DATE a group of boys had urinated in front of the applicants’ door . On DATE about CARDINAL pupils from the fourth and fifth grades had pushed the first applicant , insulted him and taken a ball from him . DATE after a boy had shouted insults at him .

She also alleged that the children had physically attacked the first applicant on CARDINAL different occasions and had often spat at him . On DATE the children had ruined the applicants’ balcony by tearing up all the flower beds and by throwing stones and mud onto the balcony . DATE they had thrown a carton of chocolate milk onto the balcony .

The second applicant had reported the harassment to the social services , the police , the Ombudswoman for Persons with Disabilities and the school authorities . Despite the good will of all those concerned , the harassment of the applicants had continued .

A medical report in respect of the first applicant drawn up on DATE indicates that he had constantly been harassed by children .

A medical report in respect of the first applicant drawn up on DATE indicates that he had been attacked by children DATE before , which had greatly upset him . Psychotherapy was recommended .

A medical report in respect of the first applicant drawn up on DATE states that “ everyone hit him mercilessly with snowballs ” , which had scared him .

A medical report in respect of the first applicant drawn up on DATE indicates that the first applicant suffered from constant anxiety and a feeling of being persecuted because “ nothing ha[d ] been done to resolve his situation ” .

A police report of CARDINAL DATE states that the second applicant called the police DATE at TIME because of “ problems with children ” . When the police arrived at TIME the second applicant told them that the children had been playing with a ball in the park and had then hit her window with the ball and run away .

A medical report in respect of the first applicant drawn up on DATE indicates that the first applicant was attacked by a group of children and was hit by a ball on the nose .

The applicants alleged that on CARDINAL DATE a group of children , including a boy , PERSON , pushed the first applicant against an iron fence in the park . He fell and hit his head and right leg . He was disoriented and uncommunicative for DATE . Medical documents drawn up on DATE show that the first applicant suffered from swelling in his right leg and skin abrasion on the left side of his forehead . He was unable to walk for DATE and the second applicant had to borrow a wheelchair for him . The medical report also indicates that the first applicant had stumbled and sprained his ankle and had also hit his head .

On DATE the second applicant complained to the police that on CARDINAL DATE a boy , PERSON , had pushed the first applicant against a wall and had also taken his ball .

On DATE the applicants’ lawyer wrote to the GPE Municipality ORG Attorney ’s ORG complaining that since her last letter of DATE , there had been further incidents of violence and harassment against the applicants . The relevant part of the letter reads :

On DATE CARDINAL boys , CARDINAL of whom was PERSON , verbally abused the first applicant , which scared him .

The second applicant informed the school counsellor about the incident but has not received a reply .

On CARDINAL , DATE and DATE a group of children threw snow at the applicants’ window and on CARDINAL of those occasions covered their balcony with snow .

On DATE a group of children verbally insulted the first applicant in the street . On DATE the second applicant was called by a social worker from ORG , GPE , who told her that the only way to resolve the situation was to bring a civil action .

On DATE the children kept throwing a ball at the applicants’ windows , about which the police were informed . On DATE , while the first applicant was riding on a bus , a group of children shouted his name , which upset him .

On DATE a boy whose first name was NORP hit the first applicant on the nose with a ball , which disoriented him and caused him pain . The second applicant informed the police about it . The police conducted a TIME interview with her and expressed their regret but informed the second applicant that nothing could be done because any kind of inquiry would show that the children had only been joking .

On DATE a group of children , including PERSON , pushed the first applicant against an iron fence in the park . He fell and hit his head and right leg . He was disoriented and uncommunicative for DATE .

On DATE , when the first applicant was sitting on a swing , a group of children approached him and made obscene gestures and told him that he was stupid . ”

On DATE the lawyer complained about the harassment of the applicants to the Ombudswoman for Children and asked for advice .

The applicants alleged that on CARDINAL DATE a group of boys hit the first applicant ’s head against an iron fence in the park and said that they enjoyed it . A medical report in respect of the first applicant drawn up on DATE indicates that he had been pushed against an iron fence and had hit his head on it .

On DATE the GPE Municipality State Attorney ’s Office informed the applicants’ lawyer that it had no jurisdiction in the matter since the complaints concerned children who were not criminally responsible .

On DATE the headmaster of PERSON primary school informed the ORG lawyer that the school authorities had taken all measures they deemed appropriate , such as discussion with the pupils concerned and the provision of information to all parents at parent - teacher meetings about the problems the applicants had encountered with the pupils .

NORP On DATE the Ombudswoman for Children informed the applicants’ counsel that she had no jurisdiction in the matter .

A medical report in respect of the first applicant drawn up on DATE indicates that he had continually been attacked by children in the neighbourhood .

Medical reports in respect of the first applicant drawn up on DATE , DATE and DATE and CARDINAL DATE indicate that the first applicant had continually been attacked by children in the neighbourhood .

On DATE the police interviewed PERSON , a pupil attending PERSON primary school , about the incidents of CARDINAL and DATE , in which he denied his involvement .

The applicants alleged that on DATE at TIME boys and a girl made repeated lewd comments in a loud voice under the applicants’ window . When the second applicant asked them to be quiet they replied provocatively , using the NORP dialect in direct allusion to the applicants’ NORP origin , telling her : “ Call the police , we are not afraid [ zovi bre policiju , mi se ne bojimo ] ” . The second applicant reported this incident on DATE to a social worker from ORG , PERSON

On DATE ORG interviewed GPE , who lived in the same block of flats as the applicants . She denied her involvement in the harassment of the applicants . She also said that children and alcoholics frequently gathered at the bench in front of the block of flats where she lived and made screaming noises , which irritated her family as well .

On DATE ORG informed the police that the second applicant had complained of continued harassment and violence against the first applicant . The police were asked to take appropriate measures .

On DATE the police interviewed GPE , a pupil attending PERSON primary school , who denied any involvement in the harassment of the first applicant .

On DATE the second applicant asked GPE for the wooden bench beneath the applicants’ window to be removed .

The applicants alleged that on DATE at TIME , when they were returning home from a shop , a boy known to them as PERSON rode past them on a bicycle and shouted insults at the first applicant , saying , inter alia : “ PERSON is a fag ” . The first applicant felt extremely anxious and stressed .

The applicants alleged that on DATE at TIME three boys on bicycles rode up in front of their window and threw rubbish and screamed . At TIME more children gathered around the wooden bench in front of the applicants’ window and repeatedly hit a nearby metal fence , thus making a lot of noise . They also threw a stone at the applicants’ window and made lewd comments in loud voices . At CARDINAL p.m. the second applicant called the police . Since the police did not come , she called them again at TIME The police said that they would come but that they had other calls to answer as well . The police arrived at TIME and told the children to move QUANTITY away from the applicants’ window . They made no attempt to identify the children . A police report of DATE indicates that at TIME the second applicant had called the police and complained about noise in the park . When the police arrived at TIME they had not found anyone in front of the building .

The applicants alleged that on DATE a group of about CARDINAL children gathered around the bench and made an unbearable amount of noise . At TIME the second applicant called the police , who arrived at TIME and ordered the children to go away , without , however , making any attempt to identify them . A police report of DATE indicates that at TIME the second applicant had called the police and complained about noise in the park . When the police arrived at TIME they had not found anyone .

The applicants alleged that on DATE at TIME they noticed , on returning from church , that an unidentified white substance had been thrown at their window in their absence . There were also some children screaming under their window . At TIME the second applicant called the police . The applicants further alleged that on CARDINAL , DATE , DATE , DATE and DATE DATE , children gathered around the bench and made an unbearable amount of noise .

The applicants alleged that on DATE CARDINAL boys gathered around the bench and made loud noises . At TIME seven boys threw balls at the applicants’ window and made noise until TIME . At TIME the second applicant called the police , who arrived at TIME and told the boys to leave without asking them any questions or making any attempt to identify them . A police report of DATE indicates that the second applicant had called the police at TIME and complained about noise . When the police had arrived at TIME they had not found anyone .

The applicants further alleged that on DATE at TIME they were awakened by a car alarm outside their window . Some children were banging on the outer wall of their flat , making a very loud noise . The first applicant ’s pet rabbit died TIME and he attributed the rabbit ’s death to the events of TIME , which made him extremely upset . On DATE , while the applicants were not at home , someone spat on their living - room window until it was completely covered in saliva . On DATE and CARDINAL , DATE and DATE groups of children gathered around the bench , making a lot of noise .

On DATE the GPE informed the second applicant that her request for the removal of the bench situated beneath the balcony of the applicants’ flat had been denied .

The applicants alleged that on DATE , while they were coming home from a shop , a group of children shouted after them : “ PERSON , PERSON ! ” The first applicant was paralysed with fear and asked his mother why they would not leave him alone . The second applicant wrote to ORG and the ORG about the harassment of her son , seeking their assistance in connection with the removal of the bench . On DATE at around midnight some children threw snowballs at the applicants’ window , which terrified the first applicant .

On DATE the Ombudswoman for Persons with Disabilities recommended to GPE that the bench be removed . The bench was removed in DATE . The applicants alleged that on DATE , some children destroyed a metal container under their window where the gas meters were located .

The applicants alleged that further incidents occurred as follows . On CARDINAL DATE a group of children shouted provocatively at the second applicant on the street , using the NORP dialect ( “ De si bre ? ” ) . On DATE at TIME some children rang the applicants’ doorbell and then ran away . On DATE the applicants went to a hairdresser , taking a detour in order to avoid the children . However , they met a group of children who shouted “ Dalibor ! ” in a provocative manner . On DATE at TIME seven boys ran around the applicants’ flat , banged on the walls , climbed onto their balcony , peered into the flat and laughed loudly . At TIME a group of boys sang the song “ We are NORP ” beneath the applicants’ window .

A medical report of CARDINAL DATE in respect of the first applicant indicates that owing to stress he often bit his lips and fists , and that he had a twitch in his left eye and symptoms of psoriasis . It also mentioned that he had frequently been attacked and ridiculed and that it was necessary to ensure a calm and friendly environment for him .

The relevant provisions of LAW ORG , ORG nos . DATE , CARDINAL , CARDINAL/CARDINAL ( consolidated text ) , CARDINAL , DATE ( consolidated text ) , CARDINAL and DATE ( consolidated text ) , PERSON ( corrigendum ) and CARDINAL ) read as follows .

“ Everyone in GPE shall enjoy rights and freedoms regardless of their race , colour , sex , language , religion , political or other belief , national or social origin , property , birth , education , social status or other characteristics .

All shall be equal before the law . ”

“ Every human being has the right to life .

“ No one shall be subjected to any form of ill - treatment ...

“ Everyone has the right to respect for and legal protection of his or her private and family life , dignity , reputation and honour . ”

“ International agreements in force which were concluded and ratified in accordance with the LAW and made public shall be part of the internal legal order of GPE and shall have precedence in terms of their legal effects over the [ domestic ] statutes . ... ”

In its decisions nos . U - I-CARDINAL/CARDINAL of DATE ( ORG no . CARDINAL/CARDINAL ) and U - I-CARDINAL/CARDINAL of DATE ( ORG no . CARDINAL ) ORG held that all rights guaranteed in the LAW and its Protocols were also to be considered constitutional rights having equal legal force to the provisions of LAW .

The relevant part of LAW ( PERSON , ORG no . CARDINAL/CARDINAL ) reads as follows :

“ Criminal legislation is not applicable in respect of a child who at the time when he or she committed a criminal offence was not yet CARDINAL . ”

The relevant part of LAW ( Prekršajni zakon , ORG no CARDINAL/CARDINAL ) reads as follows :

“ ( CARDINAL ) A person who at the time when a minor offence was committed was not yet CARDINAL is not liable for the minor offence .

( CARDINAL ) When a person under subsection CARDINAL of this section frequently behaves in a manner which amounts to serious minor offences , the ORG body competent to act shall inform that person ’s parents or guardians and the competent social welfare centre of the person ’s behaviour .

( CARDINAL ) A parent of ... a person to whom subsection CARDINAL of this section applies shall be punished for a minor offence committed by that person where the minor offence committed is directly connected to failure to supervise that person ... ”

The Administrative Disputes Act ( Zakon o upravnim sporovima , ORG of ORG no . CARDINAL/CARDINAL , and ORG nos . CARDINAL , CARDINAL/CARDINAL and DATE in force until DATE ) in its relevant part provided as follows :

“ A request for the protection of a constitutionally guaranteed right or freedom ... if such a right or freedom has been violated by a final individual act [ that is , decision ] , and no other judicial protection is secured , shall be decided by ORG ] , by applying , mutatis mutandis , the provisions of this LAW . ”

Sections CARDINAL to CARDINAL provide for special proceedings for the protection of constitutionally guaranteed rights and freedoms from unlawful factual ( physical ) acts of public officials where no other judicial remedy is available . Under the case - law of the domestic courts , the protection against unlawful “ acts ” also includes omissions ( for example , ORG , in its decision no . Us-CARDINAL/CARDINAL of CARDINAL DATE , and ORG , in its decision no . Gž-CARDINAL/CARDINAL of DATE , held that failure of the administrative authorities to carry out their own enforcement order constituted an “ unlawful act ” within the meaning of CARDINAL of LAW ) .

Under CARDINAL such proceedings are to be instituted by bringing an “ action against an unlawful act ” ( tužba za zaštitu od nezakonite radnje ) in the competent municipal court . The action must be brought against the public authority to which the factual act ( or omission ) is imputable ( the defendant ) .

DATE . Under section CARDINAL the action is to be forwarded to the public authority concerned for a reply within the time - limit set by the court conducting the proceedings . However , a decision may be adopted even without such a reply where the submissions made in the action provide a reliable basis for the decision .

Section CARDINAL provides that the court decides on the merits of the case by a judgment . If it finds in favour of the plaintiff , the court orders the defendant to desist from the unlawful activity and , if necessary , orders restitutio in integrum .

Section CARDINAL provides that in proceedings following an “ action against an unlawful act ” the court is to apply , mutatis mutandis , the provisions of LAW .

The relevant part of LAW ( Zakon o obveznim odnosima , ORG nos . CARDINAL/CARDINAL and CARDINAL ) , which came into force on DATE and abrogated the former DATE LAW , reads as follows :

“ ( CARDINAL ) All natural persons or legal entities are entitled to the protection of their rights of personality [ prava osobnosti ] under the conditions provided by law .

( CARDINAL ) NORP of personality within the meaning of this LAW are the right to life , to physical and mental health , reputation , honour , dignity , name , privacy of personal and family life , liberty , etc .

( CARDINAL ) A legal entity shall have all the above - mentioned rights of personality – apart from those related to the biological character of a natural person DATE and , in particular , the right to a reputation and good name , honour , name or company name , business secrecy , entrepreneurial freedom , etc . ”

“ Damage is ... an infringement of rights of personality ( non - pecuniary damage ) . ”

“ Anyone may request a court or other competent authority to order the cessation of an activity which violates his or her rights of personality and the elimination of its consequences . ”

As to which rights of natural persons , apart from those enumerated in section CARDINAL of LAW , are to be considered rights of personality , it should be noted that only the following have so far been interpreted as rights of personality by the NORP courts : the right to life , the right to physical and mental integrity ( health ) , the right to liberty , the right to reputation and honour , the right to privacy of personal and family life , the right to secrecy of letters and personal manuscripts , the right to personal identity ( in particular , the rights to one ’s image , voice and name ) and the moral rights of authors .

The relevant part of ORG decision no . UIIICARDINAL/CARDINAL of DATE , concerning the right to compensation in respect of rights of personality , reads as follows :

Section CARDINAL of LAW defines non - pecuniary damage as an infringement of rights of personality . In other words , any infringement of rights of personality amounts to non - pecuniary damage .

Section CARDINAL(CARDINAL ) of LAW defines rights of personality for the purposes of that LAW as : the right to life , physical and mental health , reputation , honour , respect for one ’s dignity and name , privacy of personal and family life , freedom and other aspects .

... [ I]t is to be concluded that in this case there has been a violation of human , constitutional and personal values because the applicant was in prison conditions which were incompatible with the standards prescribed by LAW and also with the legal standards under LAW . For that reason the courts are obliged to award compensation for the infringement of the applicant ’s dignity .

The relevant part of LAW ( Zakon o suzbijanju diskriminacije , Official Gazette no . CARDINAL/CARDINAL ) reads as follows .

“ ( CARDINAL ) This Act ensures protection and promotion of equality as the highest value of the constitutional order of GPE ; creates conditions for equal opportunities and regulates protection against discrimination on the basis of race or ethnic origin or skin colour , gender , language , religion , political or other conviction , national or social origin , state of wealth , membership of a trade union , education , social status , marital or family status , age , health , invalidity , genetic inheritance , gender identity , expression or sexual orientation .

( CARDINAL ) Discrimination within the meaning of this LAW means putting any person in a disadvantageous position on any of the grounds under subsection CARDINAL of this section , as well as his or her close relatives .

“ This Act shall be applied in respect of all ORG bodies ... legal entities and natural persons ... ”

“ Anyone who considers that , owing to discrimination , any of his or her rights has been violated may seek protection of that right in proceedings in which the determination of that right is the main issue , and may also seek protection in separate proceedings under LAW of this LAW . ”

“ A person who claims that he or she has been a victim of discrimination in accordance with the provisions of this LAW may bring a claim and seek :

( CARDINAL ) a ruling that the defendant has violated the plaintiff ’s right to equal treatment or that an act or omission by the defendant may lead to the violation of the plaintiff ’s right to equal treatment ( claim for an acknowledgment of discrimination ) ;

( CARDINAL ) a ban on ( the defendant ’s ) undertaking acts which violate or may violate the plaintiff ’s right to equal treatment or an order for measures aimed at removing discrimination or its consequences to be taken ( claim for a ban or for removal of discrimination ) ;

( CARDINAL ) compensation for pecuniary and non - pecuniary damage caused by the violation of the rights protected by LAW ( claim for damages ) ;

( CARDINAL ) an order for a judgment finding a violation of the right to equal treatment to be published in the media at the defendant ’s expense .

The relevant parts of Recommendation Rec(CARDINAL)CARDINAL of ORG to member GPE concerning the protection of the human rights and dignity of persons with mental disorder ( adopted by ORG on DATE at the FAC meeting of ORG ) read as follows .

Having regard , in particular :

– to the Convention for the Protection of Human Rights and Fundamental Freedoms of CARDINAL DATE and to its application by the organs established under that Convention ;

Any form of discrimination on grounds of mental disorder should be prohibited .

Member GPE should take appropriate measures to eliminate discrimination on grounds of mental disorder .

Persons with mental disorder should be entitled to exercise all their civil and political rights .

Any restrictions to the exercise of those rights should be in conformity with the provisions of ORG and should not be based on the mere fact that a person has a mental disorder .

Member GPE should ensure that there are mechanisms to protect vulnerable persons with mental disorders , in particular those who do not have the capacity to consent or who may not be able to resist infringements of their human rights .

The law should provide measures to protect , where appropriate , the economic interests of persons with mental disorder .

DATE . The relevant parts of Recommendation Rec(CARDINAL)CARDINAL of ORG to member States on ORG to promote the rights and full participation of people with disabilities in society : improving the quality of life of people with disabilities in LOC DATE ( adopted by ORG on DATE at the CARDINALst meting of ORG ) read as follows .

Bearing in mind the Convention for the Protection of Human Rights and Fundamental Freedoms ( ETS No . CARDINAL ) ;

Action line No . CARDINAL : Legal protection

CARDINAL.CARDINAL.CARDINAL . Introduction

People with disabilities have the right to recognition everywhere as persons before the law . When assistance is needed to exercise that legal capacity , member GPE must ensure that this is appropriately safeguarded by law .

Persons with disabilities constitute a varied population group , but all have in common , to a greater or lesser extent , the need for additional safeguards in order to enjoy their rights to the full and to participate in society on an equal basis with other members .

The need to focus particular attention on the situation of persons with disabilities , in terms of the exercise of their rights on an equal basis with others , is confirmed by the initiatives taken in this area at national and international level .

The principle of non - discrimination should be the basis of government policies designed to deliver equality of opportunity for people with disabilities .

Access to the legal system is a fundamental right in a NORP society but people with disabilities can often face a number of barriers , including physical access difficulties . This requires a range of measures and positive actions , including general awareness raising among the legal professions about disability issues .

ORG . Objectives

i. to ensure effective access to justice for persons with disabilities on an equal basis with others ;

ii . to protect and promote the enjoyment of all human rights and fundamental freedoms by persons with disabilities on an equal basis with others .

CARDINAL.CARDINAL.CARDINAL . Specific actions by member States

i. to provide protection against discrimination through the setting up of specific legislative measures , bodies , reporting procedures and redress mechanisms ;

ii . to ensure that provisions which discriminate against disabled people are eradicated from mainstream legislation ;

iii . to promote training on human rights and disability ( both national and international ) for law enforcement personnel , public officials , judiciary and medical staff ;

iv . to encourage non - governmental advocacy networks working in defence of people with GPE human rights ;

v. to ensure people with disabilities have equal access to the judicial system by securing their right to information and communication that are accessible to them ;

vi . to provide appropriate assistance to those people who experience difficulty in exercising their legal capacity and ensure that it is commensurate with the required level of support ;

Action line No . CARDINAL : Protection against violence and abuse

ORG . Introduction

Acts of abuse or violence against any person are unacceptable and society has a duty to ensure that individuals , particularly the most vulnerable , are protected against such abuse .

There are indications that the rate of abuse and violence committed against persons with disabilities is considerably higher than the rate for the general population , and higher in women with disabilities , particularly women with severe disabilities , where the percentages of abuse far exceed those of non - disabled women . Such abuse can occur in institutions or other types of care and situations , including the family environment . It can be inflicted by strangers or persons known to the individual and can take many forms , for instance verbal abuse , violent actions , or the refusal to meet basic needs .

While governments can not guarantee that abuse will not happen they must do their utmost to establish protection and the strongest possible safeguards . Prevention can be assisted in many ways , particularly through education to appreciate the rights of individuals to protection and to recognise and reduce the risk of abuse . Persons with disabilities who experience abuse or violence should have access to appropriate supports . They must have a system in which they can have sufficient confidence to report abuse and expect follow - up action , including individual support . Such systems require personnel who are skilled and qualified to detect and respond to situations of abuse .

While there has been some research undertaken in DATE , it is clear that further knowledge is required to inform future strategies and best practice .

Objectives

i. to work within anti - discriminatory and human rights frameworks towards safeguarding people with disabilities against all forms of violence and abuse ;

ii . to ensure access for people with disabilities to services and support systems for victims of violence and abuse .

i. to establish safeguards to protect people with disabilities from violence and abuse through the effective implementation of policies and legislation , where necessary ;

ii . to promote the availability of and access to training courses for people with disabilities to reduce the risk of violence and abuse , for example courses in self - confidence and empowerment ;

iii . to develop processes , measures and protocols adapted to people with disabilities , to improve detection of violence and abuse , and to ensure that the necessary action is taken against perpetrators , including redress and adequate professional counselling in case of emotional problems ;

iv . to ensure that disabled victims of violence and abuse , including domestic , have access to the relevant support services , including redress ;

v. to prevent and combat violence , ill - treatment and abuse in all situations by supporting families , raising public awareness and education , promoting discussion and co - operation among relevant parties ;

vi . to support people with disabilities , in particular women , and their families , in situations of abuse through the provision of information and access to services ;

vii . to ensure that systems are in place for the protection against abuse of persons with disabilities in psychiatric facilities , social care homes and institutions , orphanages , and other institutional settings ;

viii . to ensure that relevant training is provided to all staff working in disability - specific institutional settings and mainstream support services ;

ix . to train police and judicial authorities so that they can receive testimony from disabled people and treat instances of abuse seriously ;

x. to provide people with disabilities with information on how to avoid the occurrence of violence and abuse , how to recognise it , and how to report it ;

xi . to take effective legislative , administrative , judicial or other measures with strong sanctions in a transparent manner and to allow for independent review by civil society in order to prevent all forms of physical or mental violence , injury or abuse , neglect and negligent treatment , maltreatment , exploitation or abduction of people with disabilities ;

The relevant parts of ORG ResAP(CARDINAL)CARDINAL on safeguarding adults and children with disabilities against abuse ( adopted by ORG on DATE at the PERSON meeting of ORG ) read as follows .

I. Definition of abuse

NORP In this ORG abuse is defined as any act , or failure to act , which results in a breach of a vulnerable person ’s human rights , civil liberties , physical and mental integrity , dignity or general well - being , whether intended or through negligence , including sexual relationships or financial transactions to which the person does not or can not validly consent , or which are deliberately exploitative . At a basic level abuse may take a variety of forms :

a. physical violence , including corporal punishment , incarceration DATE including being locked in one ’s home or not allowed out DATE , over- or misuse of medication , medical experimentation or involvement in invasive research without consent , and unlawful detention of psychiatric patients ;

b. sexual abuse and exploitation , including rape , sexual aggression , indecent assault , indecent exposure , forced involvement in pornography and prostitution ;

c. psychological threats and harm , usually consisting of verbal abuse , constraints , isolation , rejection , intimidation , harassment , humiliation or threats of punishment or abandonment , emotional blackmail , arbitrariness , denial of adult status and infantilising disabled persons , and the denial of individuality , sexuality , education and training , leisure and sport ;

These abuses require a proportional response – one which does not cut across legitimate choices made by individuals with disabilities but CARDINAL which recognises vulnerability and exploitation . The term ‘ ORG therefore refers to matters across a wide spectrum , which includes criminal acts , breaches of professional ethics , practices falling outside agreed guidelines or seriously inadequate care . As a consequence , measures to prevent and respond to abuse involve a broad range of authorities and actors , including the police , the criminal justice system , the government bodies regulating service provision and professions , advocacy organisations , user networks and patient councils , as well as service providers and planners .

II . Principles and measures to safeguard adults and children with disabilities against abuse

Protection of human rights

Member GPE have a duty to protect the human rights and fundamental freedoms of all their citizens . They should ensure that people with disabilities are protected at least to the same extent as other citizens .

Member GPE should recognise that abuse is a violation of human rights . People with disabilities should be safeguarded against deliberate and/or avoidable harm at least to the same extent as other citizens . Where people with disabilities are especially vulnerable , additional measures should be put in place to assure their safety .

Inclusion of people with disabilities

Member GPE should acknowledge that safeguarding the rights of people with disabilities as citizens of their country is a ORG responsibility .

They should combat discrimination against people with disabilities , promote active measures to counter it and ensure their inclusion in the socio - economic life of their communities .

They should recognise that all people with disabilities are entitled to dignity , equal opportunity , their own income , education , employment , acceptance and integration in social life , including accessibility , health care as well as medical and functional rehabilitation .

They should guarantee that people with disabilities are ensured protection DATE to at least the same extent as other citizens – in their use of services of all kinds .

Prevention of abuse

Member GPE should increase public awareness , promote open discussion , develop knowledge , and improve education and professional training .

They should encourage cooperation between authorities and organisations in finding measures to prevent abuse , to improve detection and reporting of abuse , and to support the victims .

They should create , implement and monitor legislation concerning the standards and regulation of professionals and care settings , in order to make abuse of people with disabilities less likely through action taken or through failure to act .

Legal protection

Member GPE should ensure access to the criminal justice system and provision of redress and/or compensation to people with disabilities who have been victims of abuse at least to the same extent as other citizens . Where necessary additional assistance should be provided to remove physical and other barriers for people with disabilities .

People with disabilities are applicants under civil law whose rights should be safeguarded . Member GPE should therefore ensure that professionals working within the criminal justice system treat people with disabilities without discrimination and in such a way as to guarantee them equality of opportunity in the exercise of their rights as citizens .

The relevant parts of LAW ( DATE ) of ORG on access to rights for people with disabilities and their full and active participation in society ( adopted on DATE ) read as follows .

“ CARDINAL . CARDINAL person in every CARDINAL suffers from some form of disability , representing a total of CARDINAL people worldwide , with an even greater ratio of CARDINAL in LOC alone . There is a correlation between age and disability : as the population ages and health care improves , the number of people with disabilities in LOC grows , and it will continue to grow .

ORG recalls that ORG ( ETS No . CARDINAL ) protects all people , including those with disabilities , and that LAW ( ETS No . CARDINAL ) explicitly guarantees people with disabilities the effective exercise of the right to independence , social integration and participation in the life of the community . A more recent and eagerly awaited text , LAW on the Rights of Persons with Disabilities , came into force with effect from DATE . The ORG welcomes this text , which gives a detailed description of the rights of people , including children , with disabilities , and will certainly contribute to the change of perception needed to improve the situation of people with physical or mental disabilities .

The ORG notes that , in practice , the access of people with physical or mental disabilities to their rights on an equal basis with those of people without disabilities frequently remains wishful thinking and proves inadequate . It therefore welcomes the preparation by ORG to promote the rights and participation of people with disabilities in society for DATE ( Recommendation Rec(CARDINAL)CARDINAL of ORG ) , which endeavours to find practical responses to the most serious and most common problems encountered by people with disabilities , to foster equality of opportunities , and which advocates a number of measures to improve the situation of people with disabilities in all aspects of everyday life .

Whereas the attitude of society , prejudice and fixed mindsets remain the main obstacle to the access to rights for people with disabilities and their full and active participation in society , the ORG invites member ORG to :

step up their campaigns drawing public attention to , and providing information about , disability - related issues ;

NORP take legal action against and penalise discriminatory practices and unacceptable attitudes towards people with disabilities , especially abuse , committed either by isolated individuals or in health - care establishments ;

disseminate examples of good practices in all spheres of everyday life , so as to make clearer − to all , and particularly to young people − the scope of this question in civil society , the working environment and the world of education ;

NORP ensure the full and active participation of people with disabilities in all of these processes .

The relevant parts of the Convention on the Rights of Persons with Disabilities ( which was ratified by GPE in DATE and came into force on DATE ) read :

“ The purpose of the present Convention is to promote , protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities , and to promote respect for their inherent dignity .

Persons with disabilities include those who have long - term physical , mental , intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others . ”

“ CARDINAL . DATE States Parties undertake to ensure and promote the full realization of all human rights and fundamental freedoms for all persons with disabilities without discrimination of any kind on the basis of disability . To this end , GPE Parties undertake :

a. to adopt all appropriate legislative , administrative and other measures for the implementation of the rights recognized in the present Convention ;

b. to take all appropriate measures , including legislation , to modify or abolish existing laws , regulations , customs and practices that constitute discrimination against persons with disabilities ;

c. to take into account the protection and promotion of the human rights of persons with disabilities in all policies and programmes ;

d. to refrain from engaging in any act or practice that is inconsistent with the present LAW and to ensure that public authorities and institutions act in conformity with the present Convention ;

e. to take all appropriate measures to eliminate discrimination on the basis of disability by any person , organization or private enterprise ;

“ CARDINAL . DATE States Parties recognize that all persons are equal before and under the law and are entitled without any discrimination to the equal protection and equal benefit of the law .

DATE States Parties shall prohibit all discrimination on the basis of disability and guarantee to persons with disabilities equal and effective legal protection against discrimination on all grounds .

NORP In order to promote equality and eliminate discrimination , GPE Parties shall take all appropriate steps to ensure that reasonable accommodation is provided .

Specific measures which are necessary to accelerate or achieve de facto equality of persons with disabilities shall not be considered discrimination under the terms of the present Convention . ”

“ CARDINAL . DATE States Parties undertake to adopt immediate , effective and appropriate measures :

a. to raise awareness throughout society , including at the family level , regarding persons with disabilities , and to foster respect for the rights and dignity of persons with disabilities ;

b. to combat stereotypes , prejudices and harmful practices relating to persons with disabilities , including those based on sex and age , in all areas of life ;

c. to promote awareness of the capabilities and contributions of persons with disabilities .

Measures to this end include :

a. Initiating and maintaining effective public awareness campaigns designed :

i. to nurture receptiveness to the rights of persons with disabilities ;

ii . to promote positive perceptions and greater social awareness towards persons with disabilities ;

iii . to promote recognition of the skills , merits and abilities of persons with disabilities , and of their contributions to the workplace and the labour market ;

b. Fostering at all levels of the education system , including in all children from DATE , an attitude of respect for the rights of persons with disabilities ;

c. Encouraging all organs of the media to portray persons with disabilities in a manner consistent with the purpose of the present Convention ;

d. Promoting awareness - training programmes regarding persons with disabilities and the rights of persons with disabilities . ”

“ CARDINAL . No one shall be subjected to torture or to cruel , inhuman or degrading treatment or punishment . In particular , no one shall be subjected without his or her free consent to medical or scientific experimentation .

DATE States Parties shall take all effective legislative , administrative , judicial or other measures to prevent persons with disabilities , on an equal basis with others , from being subjected to torture or cruel , inhuman or degrading treatment or punishment . ”

“ CARDINAL . DATE States Parties shall take all appropriate legislative , administrative , social , educational and other measures to protect persons with disabilities , both within and outside the home , from all forms of exploitation , violence and abuse , including their gender - based aspects .

DATE States Parties shall also take all appropriate measures to prevent all forms of exploitation , violence and abuse by ensuring , inter alia , appropriate forms of gender- and age - sensitive assistance and support for persons with disabilities and their families and caregivers , including through the provision of information and education on how to avoid , recognize and report instances of exploitation , violence and abuse . States Parties shall ensure that protection services are age- , gender- and disability - sensitive .

NORP In order to prevent the occurrence of all forms of exploitation , violence and abuse , GPE Parties shall ensure that all facilities and programmes designed to serve persons with disabilities are effectively monitored by independent authorities .

DATE States Parties shall take all appropriate measures to promote the physical , cognitive and psychological recovery , rehabilitation and social reintegration of persons with disabilities who become victims of any form of exploitation , violence or abuse , including through the provision of protection services . Such recovery and reintegration shall take place in an environment that fosters the health , welfare , self - respect , dignity and autonomy of the person and takes into account gender- and age - specific needs .

DATE States Parties shall put in place effective legislation and policies , including women- and child - focused legislation and policies , to ensure that instances of exploitation , violence and abuse against persons with disabilities are identified , investigated and , where appropriate , prosecuted . ”

“ Every person with disabilities has a right to respect for his or her physical and mental integrity on an equal basis with others . ”


The applicant is a NORP national who was born in DATE and lives in GPE .

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

On DATE ORG convicted the applicant of aggravated murder , sentencing him to DATE imprisonment .

On DATE a search of the applicant ’s belongings was carried out at ORG . The applicant alleges that cash , in the amount of LTL CARDINAL ( about EUR CARDINAL ) , and a packet of washing powder were removed . The prison administration considered that the possession of these items was prohibited by FAC and ORG .

On DATE the prison administration , having obtained a prosecutor ’s approval , ordered that the confiscated money be transferred to the ORG ’s account .

On DATE a special disciplinary commission of the prison decided to impose on the applicant a disciplinary penalty , namely the deprivation of the right to receive or send a parcel on CARDINAL occasion , and to purchase food in the prison shop for DATE .

The applicant brought a court action , contesting the search and the penalty . In particular , he complained that the above decisions had been taken in his absence , in breach of his defence rights . The applicant also alleged that he had suffered double jeopardy by way of the confiscation of his money as well as the imposition of the disciplinary penalty on DATE . He requested that the money be returned to him .

In the context of the action , the applicant was granted free legal assistance for his representation before a court .

On DATE ORG examined the case in the presence of the applicant . The lawyer assigned to represent him failed to appear . The court rejected the applicant ’s request to adjourn the examination of the case , having found that the applicant ’s lawyer had been duly informed of the hearing .

The applicant ’s action was dismissed . The court first held that the applicant ’s money had been confiscated and transferred to the ORG ’s account in accordance with LAW . That measure was not deemed a “ penalty ” under domestic law since it was not included in the exhaustive list of disciplinary penalties ( LAW ) . The court dismissed the applicant ’s allegation that he had been punished twice . It was furthermore established that , prior to the search , the prison inspectors had proposed that the applicant voluntarily show them any possibly illicit items . Had the applicant shown the cash , it would not have been confiscated but returned to him , in accordance with LAW . However , the applicant had failed to do so . The court also noted that the law ( providing for the confiscation of any cash held in the prison ) was justified in the public interest .

It was also established that the penalty of DATE was imposed in accordance with LAW for a breach of prison discipline .

The court noted , however , that the disciplinary proceedings had been conducted in breach of LAW , which guaranteed to the accused the right to be heard by a special disciplinary commission of the prison before the decision on a disciplinary penalty was taken . Nevertheless , the court considered that that irregularity had not rendered the proceedings as a whole unfair , since the applicant had been afforded the opportunity to submit his explanations to the commission in writing , in accordance with LAW . There was no evidence that the applicant had intended to present any new arguments in addition to those indicated in his written explanations , as he had not submitted any new statements to the court .

The applicant appealed , complaining that the case had been examined in the absence of his lawyer . He was again granted free legal aid for his representation before the appellate court .

On DATE ORG examined the case in the presence of the applicant and his lawyer , dismissing the applicant ’s appeal . The appellate court upheld the reasoning of the lower court .

The applicant brought another court action against the administration of ORG , complaining about the lack of space in dormitory no . CARDINAL , where he had been sleeping from DATE until DATE . The applicant alleged that the overcrowding resulted in a lack of fresh air at TIME , causing him insomnia and headaches , and that it had had a very negative impact on his physical and mental health . The applicant claimed non - pecuniary damages in the amount of LTL CARDINAL,CARDINAL ( about ORG CARDINAL,CARDINAL ) .

On DATE ORG essentially accepted the applicant ’s claim , the applicant being present . The court held inter alia :

“ It is undisputed that the official hygienic norms ( ORG ) guarantee the minimum space of QUANTITY for each inmate . The conditions in the [ Sniego Prison ] are not in compliance with the above norm , since the number of inmates exceeds that fixed by the order of DATE by the Director of ORG of ORG . While the order establishes CARDINAL places in the [ prison ] , as a matter of fact CARDINAL inmates are held there at any CARDINAL time . ...

[ T]he Civil Code foresees CARDINAL conditions for civil liability : [ a ] the unlawful actions or inaction of the respondent [ ORG institution ] or its employees , [ b ] damage , and [ c ] the causal link between the actions ( inaction ) and the damage . It is for the applicant who seeks civil damages to demonstrate the existence of all these elements . ”

The ORG concluded that the applicant had not shown that he had suffered non - pecuniary damage as a result of the slight overcrowding .

The applicant appealed , stating that the prison administration had not submitted any evidence to show that it had requested additional finances from ORG or the Government . The applicant also pointed out that the lack of space in the Sniego Prison had been acknowledged as a fact .

On DATE ORG examined the case in the applicant ’s presence , dismissing the appeal and upholding the reasoning of the lower court .

From the medical reports submitted by the applicant , it appears that from DATE to CARDINAL DATE the applicant had consulted the prison doctor CARDINAL times . On several occasions he was diagnosed with a number of minor illnesses . The medical report of DATE indicated that the applicant should be relieved from work and allowed to stay in bed , without specifying any reasons . Several medical reports dating DATE also indicated that the applicant had sought consultations due to headaches , hypertension and certain psychological disorders .

On DATE and DATE , ORG upheld the decisions of ORG to refuse the request of the prison administration for the applicant ’s release on licence .

On DATE the FAC granted the request of the prison administration , ordering the applicant ’s conditional release .

The applicant was released on DATE .

LAW prohibits inhuman and degrading treatment .

The Prisons Code ( as then in force ) provided :

LAW :

“ Punishment is not intended to cause physical suffering or degrade human dignity . ”

Article CARDINAL § CARDINAL

“ Searches of inmates shall be carried out . ”

Article CARDINAL § CARDINAL

“ Convicts are not permitted to keep money in cash ... Any cash found shall be seized and transferred to the ORG ’s account by a reasoned decision of the head of the prison administration , upon approval by a prosecutor . ”

LAW

“ Convicts breaching the prison regime shall be punished ... by the deprivation of the right to receive or send a parcel on CARDINAL occasion , and to purchase food in a prison shop during DATE . ”

Article CARDINAL § CARDINAL

“ Convicts have the right to appeal against a disciplinary punishment . ”

Until DATE , LAW established the minimum floor - space per inmate at QUANTITY . From DATE this norm was increased to QUANTITY , in accordance with Sanitary Standard HN:CARDINAL ( approved by the order of ORG on DATE ) .

Article CARDINAL of ORG provided that any items belonging to a detainee , which have been surrendered to the prison administration voluntarily , shall be put into storage and returned to the owner upon release .

Article CARDINAL of ORG provided a right for an inmate to be present before a special disciplinary commission of the prison .

Article CARDINAL of LAW ( in force from DATE ) :

“ CARDINAL . Damage caused by the unlawful acts of public institutions shall be compensated by the ORG from the budget , irrespective of the fault of an actual civil servant ...

For the purposes of this Article , the term “ action ” shall be taken to mean any action ( active action or failure to act ) of a public institution or its employees , which directly affects the rights , liberties or interests of persons ... .

The civil liability of the ORG ... shall arise if employees of public institutions fail to act in accordance with the law . ”

Article CARDINAL of the Civil Code provides that , in cases where the ORG is liable to cover the damage , it shall be represented by the ORG or an institution authorised by the Government .


Violation of Art. 6-1;Violation of Art. 13

The applicant was born in DATE and lives in GPE .

In DATE the applicant was dismissed from his position as a senior tax inspector ( старший державний податковий інспектор ) of the Moskovsky ORG of GPE ( the “ GPE , ORG податкова інспекція у PERSON PERSON ) . On DATE he instituted civil proceedings in the Moskovsky ORG of Kyiv ( Московський районний суд PERSON PERSON ) seeking his reinstatement , compensation for lost income and moral damage . Subsequently the proceedings were transferred to ORG of GPE ( the “ ORG , ” Ватутінський районний суд PERSON PERSON ) .

On DATE ORG ordered the applicant 's reinstatement and awarded him CARDINAL NORP hryvnyas ( “ UAH ” ) in compensation for lost income and ORG CARDINAL in compensation for moral damage . Pursuant this judgment , the applicant was reinstated and paid the compensation equivalent to his DATE income .

On DATE the applicant resigned from the civil service .

On DATE ORG ( “ ORG , ” PERSON суд м. PERSON ) upheld the judgment of DATE in part ordering the applicant 's reinstatement and recalculated the amount of compensation due to him . In particular , ORG awarded the applicant ORG CARDINAL,CARDINAL.CARDINAL in compensation for lost income and ORG CARDINAL in compensation for moral damage .

On DATE , due to the mergers of the city administrative districts , the Moskovsky Inspectorate was liquidated and replaced by GPE ( the “ GPE ” ; Державна податкова інспекція у Голосіївському районі PERSON PERSON ) .

On DATE ORG rejected the requests for leave to appeal in cassation submitted by the PERSON ( PERSON ) ORG and the applicant 's representative .

On DATE ORG issued an enforcement writ for the judgment of DATE indicating PERSON as the debtor .

On DATE the applicant submitted the writ to ORG ( the “ Bailiffs ” ; ORG виконавчої служби Голосіївського районного управління юстиції м. PERSON ) .

On DATE the Bailiffs initiated the enforcement proceedings and on DATE submitted an invoice to ORG ( ORG ) .

Having received no response from ORG , on DATE and DATE the Bailiffs requested ORG to issue a duplicate enforcement writ . Having received a duplicate writ without a seal on DATE , the Bailiffs returned it to ORG for validation . On DATE ORG informed the applicant that it had never received the returned duplicate writ .

On DATE the Bailiffs requested ORG to issue another duplicate writ . On DATE ORG fulfilled this request , indicating GPE as the debtor .

On DATE ORG paid the applicant ORG CARDINAL,CARDINAL.CARDINAL in compensation for lost income due to him by the judgment at issue ( PERCENT of the judgment debt ) .

On DATE ORG ( ORG у Голосіївському районі PERSON PERSON ) rejected the Bailiffs ' request to pay the remainder award of UAH CARDINAL ( PERCENT of the debt ) in compensation for moral damage , having noted that ORG had been liquidated in DATE .

On DATE the Bailiffs terminated the enforcement proceedings on account of the debtor 's liquidation and returned the writ to the applicant informing him of his right to re - introduce it at DATE .

According to the ORG 's submissions , in DATE the remainder judgment debt of ORG CARDINAL was transferred to the Bailiffs ' account . On DATE and DATE the Bailiffs requested the applicant to provide his banking details to effect the money transfer , but he never responded .

The relevant domestic law is summarised in the judgment of PERSON v. GPE , ( no . CARDINAL , § § CARDINAL , CARDINAL DATE ) .


George Nicolaou;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Päivi Hirvelä;Vincent A. De Gaetano

NORP The applicant , PERSON , is a NORP national who was born in DATE and lives in PERSON . She is represented before the ORG by Mr PERSON , a lawyer practising in PERSON . ORG ( “ the Government ” ) are represented by their Agent , Mr J. Wołąsiewicz of ORG .

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

NORP In DATE the applicant visited PERSON at his private practice and was registered as a pregnant patient . During her pregnancy she visited PERSON CARDINAL times and had CARDINAL ultrasound scans which demonstrated that the foetus was developing normally .

During a visit on DATE PERSON found that the delivery was imminent . At TIME the pains started . On DATE the applicant was admitted to ORG . The birth did not progress normally . After TIME of labour the applicant and her husband asked PERSON to proceed to a caesarean section . He refused .

The applicant ’s daughter , ORG , was born after TIME . She showed no signs of life and had to be resuscitated , which took TIME . The child suffered from serious health problems ( cerebral palsy ) , mostly of a neurological character and required permanent supervision and medical attention . She could not speak , see or walk .

The applicant believed that PERSON was responsible for her daughter ’s condition . On DATE a criminal investigation was instituted at her request by ORG .

A medical expert opinion submitted to the prosecuting authorities on DATE by specialists from ORG established that there had been serious shortcomings in the manner in which the delivery had been handled . However , the experts concluded that there was insufficient evidence for a finding that the child ’s problems had been caused solely by the manner in which she was delivered .

On an unspecified date ORG in GPE found PERSON guilty of a breach of his professional obligations in that he had failed to monitor the child ’s condition properly during the second period of the delivery .

On DATE ORG , referring to this opinion , discontinued the proceedings on the ground that no criminal offence of exposing the child to serious danger to life or limb , punishable under LAW of LAW , had been committed .

The applicant appealed , indicating shortcomings in the investigation . She submitted , in particular , that the prosecution had failed to take into consideration the case file relating to the professional liability proceedings conducted before the authorities of ORG , and that the criminal proceedings had been conducted superficially . She requested that a number of witnesses be questioned . As a result , the facts of the case had not been established properly .

On DATE ORG allowed her appeal , quashed the decision and remitted the case . He observed that the evidence had to be completed by the questioning of the CARDINAL witnesses requested by the applicant , and who had not been questioned so far ; that complete and uptodate medical records of the child had to be included in the file and examined ; that the file from the medical liability proceedings had to be joined to the prosecutor ’s file ; and that an additional medical opinion should be sought to complement the findings of the opinion referred to above .

By a decision of DATE ORG asked ORG of ORG to complete its earlier expert opinion . It was submitted on DATE . In their opinion the experts stated that there was a causal link between the medical error committed by PERSON in his handling of the applicant ’s delivery and her daughter ’s condition .

On DATE ORG filed an indictment against PERSON with ORG . He was charged with an offence punishable under LAW § CARDINAL ( i ) and CARDINAL of LAW by failing to monitor the labour properly .

On DATE the applicant and her daughter declared their intention to become auxiliary prosecutors in the proceedings .

On DATE the court held a session with a view to organising a hearing ( ORG , ORG , II K CARDINAL ) . Subsequently , hearings were scheduled for DATE , CARDINAL DATE and CARDINAL DATE . Because PERSON failed to attend any of the hearings and none of them was actually held because of his absence , on CARDINAL DATE and CARDINAL DATE the court ordered that he be brought to the courtroom . However , apparently no steps were taken to do so . On CARDINAL occasion PERSON was admitted to a psychiatric hospital DATE before the date of the hearing .

The hearing scheduled for CARDINAL DATE was adjourned , also because of his absence .

At a hearing held on DATE , the court read a letter from a psychiatric hospital in T. Having regard to the doubts which had arisen as to whether PERSON was able to participate in the proceedings , it ordered that an additional expert opinion be prepared in this respect . An opinion was submitted to the court on DATE . The experts found that PERSON suffered from reactive depression accompanied by alcohol abuse and , as a result , was unable to participate in the judicial proceedings for DATE .

By a letter of CARDINAL DATE the applicant ’s lawyer drew the court ’s attention to the fact that the experts had failed to address the issue of whether PERSON had himself contributed to his inability to participate in the proceedings . He further submitted that the provisions on criminal procedure allowed for a hearing to be held in the defendant ’s absence when it had been shown that he or she had made himself or herself unable to participate in hearings . In the present case the accused had failed to comply with all the summonses and had thereby effectively boycotted the proceedings . On CARDINAL occasion he had been admitted to a psychiatric hospital DATE before the date of the last hearing , which cast doubt on the credibility of the medical certificates he had submitted so far in the case . The applicant ’s lawyer further requested that the defendant ’s ability to participate be examined by doctors from outside the GPE region . This would , in the applicant ’s view , ensure their impartiality .

The court allowed his request on DATE and appointed new experts , tasking them with establishing the defendant ’s ability to participate in the proceedings .

On DATE PERSON died .

On DATE the court discontinued the criminal proceedings . The applicant appealed against this decision in so far as it concerned costs . The court dismissed the appeal by a decision of DATE , served on the applicant on DATE .

On DATE the applicant ’s child died .

On DATE the applicant lodged a complaint against PERSON with ORG ( Okręgowy PERSON ) at ORG . On DATE the Agent , having completed the investigation , transferred the complaint for examination to ORG .

On DATE that court found PERSON guilty of a breach of his professional obligations in that he had failed to monitor the child ’s condition properly during the second period of the delivery and had failed to notice that the applicant had had an infection during her pregnancy . The court confirmed the fact that largescale damage to the child ’s brain had been caused during the labour .

On DATE ORG in GPE upheld the firstinstance judgment in so far as it concerned the inappropriate monitoring of the child ’s condition during the second period of the delivery . The court further concluded that there was insufficient evidence to hold that PERSON had failed to diagnose the infection .

On DATE the applicant , acting on her own behalf and on behalf of her daughter PERSON , sued ORG for damage and suffering caused as a result of medical malpractice during DATE birth . The applicant claimed MONEY ( ORG ) for nonpecuniary damage and a DATE pension of ORG CARDINAL for her inability to work caused by the fact that she had to take care of her daughter . In respect of her daughter the applicant claimed ORG CARDINAL for nonpecuniary damage and a DATE pension in the same amount .

On DATE the ORG found the legal successor of ORG , which had in the meantime changed hands , civilly liable for the applicant ’s child ’s condition as a result of medical malpractice during the applicant ’s labour . It established that the child was totally and permanently incapacitated , required roundtheclock attention and care . It awarded the applicant and her daughter , jointly , compensation in the amount of ORG CARDINAL .

On DATE ORG , having examined the applicant ’s appeal , increased the amount of compensation to ORG CARDINAL , plus interest . The court observed that the child had been totally physically incapacitated as a result of cerebral palsy resulting from brain damage caused by the negligent handling of her birth . However , her mental faculties had most likely been intact . She had therefore been locked within her own body which could not but be seen as causing her acute and continuous suffering for not being able to either express herself or to attend to her simplest needs . Her condition necessitated constant care and attention . She had been fragile and often suffered from additional ailments . The court was of the view that the enormity of the child ’s infirmity and the applicant ’s suffering it caused justified increasing the compensation to be paid by the defendant to ORG CARDINAL . The court held that while compensation for damage to one ’s health could not be unduly high so as to cause unfair enrichment , the respect for priceless values such as life and physical integrity dictated that it should be sufficiently elevated so as to offset the negative psychological consequences of medical malpractice .

Article CARDINAL § CARDINAL of LAW of DATE provides that a person who causes grievous bodily harm shall be sentenced to between one and ten years’ imprisonment .