Violation of Art. 6-1 with regard to the lack of independence and impartiality;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award

The applicants were born in DATE , DATE and DATE respectively . The first and second applicants live in GPE and the third applicant lives in GPE .

The applicants were employed by ORG of ORG in GPE and were involved in the organisation of public activities and events during religious and national days . Upon the instructions of the mayor and the deputy mayor , the applicants organised on DATE a special night called the “ Jerusalem Night ” during DATE . The event was announced DATE in advance and representatives of the security forces and several important personalities living in the district were invited . The hall was decorated with posters of martyrs who had given their lives for the liberation of GPE . The applicants also organised a TIME play for TIME . The second applicant cleaned the hall , set up and maintained the sound system and welcomed the guests . The play , which was written by the first and third applicants , took the form of a conversation between a father and his son about life in GPE and the struggle of the NORP people . The first applicant played the role of the father in the play . The mayor of NORP and the Ambassador to GPE made speeches before the play began .

The second and third applicants were taken into police custody on DATE and the first applicant on DATE . They were accused of disseminating propaganda in support of an armed , illegal organisation , namely the ORG . During their police interrogations , the applicants denied the charges against them .

On DATE the applicants were brought before the public prosecutor . During their questioning , they repeated the statements they had made at the police station .

On DATE the applicants were brought before the investigating judge attached to ORG , where they made similar statements . Subsequently , the investigating judge ordered that the applicants be remanded in custody .

In an indictment dated DATE , the public prosecutor attached to ORG initiated criminal proceedings against the applicants . It was alleged that they had disseminated propaganda in support of an armed , illegal organisation . The prosecution therefore called for the applicants to be sentenced pursuant to LAW .

On DATE ORG , which was composed of CARDINAL judges including a military judge , found that the applicants had aided and abetted a terrorist organisation by engaging in propaganda in support thereof . It found the applicants guilty as charged , sentenced them to DATE and QUANTITY months’ imprisonment and debarred them from public service for DATE .

On DATE ORG upheld the decision of ORG .

A full description of the domestic law may be found in PERSON v. GPE ( no . CARDINAL/CARDINAL , § § DATE , DATE ) .


The applicant was born in DATE and lives at FAC ( in the province of GPE ) .

She teaches history and geography at secondary - school level . From DATE to DATE she was the head teacher of a secondary school in ORG where she taught .

ORG gave notice through an advertisement in ORG of DATE of an internal competition to fill CARDINAL senior teaching posts at secondary - school level . On DATE ORG and ORG ( “ the GPE ” ) published a provisional list of the candidates whose applications to take part in the competition had been accepted . The final list comprised CARDINAL candidates , including the applicant , and was published on DATE .

On DATE the ORG published the candidates’ assessments and the number of marks awarded to each under the chosen selection criteria , in order to allow any complaints to be lodged .

By an order of DATE , it published a final list of the candidates , including the applicant , who had passed the examination .

NORP In DATE CARDINAL candidates issued proceedings in ORG complaining about the manner in which the competition had been organised and , in particular , of the use of , and weighting given to , teacher - training diplomas in the assessment process , which they maintained was discriminatory . Notice of each individual application was published in ORG of the province of GPE . The national and regional press carried reports that a large number of legal actions had been brought complaining about the organisation and results of the competition and that senior officials in the NORP government or members of their families had passed the examination as a result of the significant weighting given to CARDINAL of the assessment criteria . The dispute was referred to the Ombudsman ( defensor del pueblo ) for GPE , who strongly criticised the weighting system and advised the NORP government to annul the competition . The teachers unions took a stand on the matter , which was also debated in the NORP parliament .

By a decision of the ORG dated DATE the applicant was appointed to the grade of senior history and geography secondary - school teacher .

In the judicial review proceedings that had been brought by a large number of candidates , ORG ordered the ORG to furnish a list of the candidates in the competition , to produce the administrative file and to serve notice on interested third parties to attend the hearing . ORG lodged written pleadings , but without identifying the interested third parties who ought to be summoned . At the end of the proceedings , in a judgment of DATE , ORG annulled the competition for history and geography teachers and directed the examiners to re - mark the examination papers without applying the disputed weighting .

NORP In other judicial review proceedings that had been brought in FAC on the same grounds , interested third parties , who had not been personally served with summonses to appear , made an application under LAW for leave to intervene after learning about the proceedings from other sources . ORG agreed to their participation in the proceedings .

On the reassessment of the candidates under the procedure laid down by ORG , the applicant did not attain the requisite level and failed the examination . ORG issued an order on DATE , which was published on DATE in ORG of ORG , annulling her appointment to the senior teaching post .

The applicant lodged an amparo appeal with ORG under LAW ( right to a fair hearing ) against ORG judgment of DATE and the ORG ’s order of CARDINAL DATE . She said in her appeal that she had learnt of the notice in the DATE issue of ORG of ORG by accident and complained in substance that the process whereby her appointment to the senior teaching post had been annulled was unfair , as she had not been summoned to appear before ORG as an interested party to the dispute . In that connection , she argued , inter alia , that ORG had been under a duty under LAW to inform her of the court proceedings and to summon her to appear . She also sought a stay of execution of ORG judgment .

In a decision of CARDINAL DATE ORG declared her amparo appeal admissible .

On DATE ORG granted the applicant a stay of execution ; it discharged that order on DATE .

State Counsel lodged written pleadings with ORG on DATE concerning the amparo appeal . He argued that the appeal should be allowed in part , as there had been a violation of LAW for the following reasons :

“ ... In order to examine this appeal , it is necessary to recapitulate the criteria and conditions laid down in the case - law of ORG establishing that a failure to serve a summons personally will violate the right to the effective protection of the courts .

In that connection , the notion of ‘ legitimate interest’ has a special meaning for the purposes of LAW ( of LAW ) , as it determines who has a legitimate right to take part in court proceedings , that is to say standing as an interested party to bring an appeal .

ORG has frequently stated that the notion of ‘ legitimate interest ... is defined as an advantage or any legal benefit arising out of the remedy sought’ ( judgment no . CARDINAL/CARDINAL ) . In the present case , it will be seen that the appellant had a legitimate interest in the application before ORG , as she was liable to be affected by the judgment , which resulted in a new list of selected candidates being drawn up and , consequently , the loss of her newly obtained status as a senior secondary - school teacher . From that standpoint , therefore , it was vital for the summons to be served on her personally and directly in the proceedings .

Secondly , ... since the appellant was identifiable , it is necessary to determine whether she could have been served personally . In that connection , it will be observed from the pleadings lodged with ORG in support of the application for judicial review that it was not only the ‘ ORG that was contested , but also the provisional list of candidates permitted to take part in the competition , which means that the persons concerned were readily identifiable .

Consequently , it was not only necessary , but also feasible , for the appellant to be summoned personally and directly . The last requirement is that the person concerned should have no knowledge of the proceedings . In the present case , there is no evidence to suggest that the appellant knew or could have found out about the proceedings , as the judgment was not even served on her . Accordingly , the rule established in ORG judgment no . DATE should be applied , namely : ‘ this ORG will only dismiss the appeal if there is evidence establishing that the appellant was aware of the proceedings ... ’

In the light of the foregoing , in the present case , the appellant should have been summoned to appear in the judicial review proceedings in ORG . The fact that she was not so summoned put her in a position that was prejudicial to her defence rights , in breach of the fundamental right guaranteed by LAW . ”

NORP In a decision of CARDINAL DATE , ORG ordered the joinder of various amparo appeals against ORG judgment in which the appellants all relied on the same points of law .

In a judgment delivered on DATE after an adversarial hearing , ORG dismissed the amparo appeal .

With respect to the complaint that the annulment of the applicant ’s appointment to the senior teaching post was tainted with procedural unfairness , owing to the failure to summon her to appear before ORG as an interested party to the dispute , ORG held :

NORP ... While it is true that the appellants allege , firstly , a violation of section CARDINAL of FAC on the ground that ORG effected service by advertisement and not personally , such a violation would only have a legal bearing on a constitutional amparo appeal if the breach of the LAW also constituted a violation of the fundamental right relied on ( see judgments LAW . CARDINAL/CARDINAL and CARDINAL , legal reason no . CARDINAL ) . ORG addressed the issue of failure to summon third parties with an interest in judicial review proceedings in detail in its judgment no . CARDINAL/CARDINAL . The rules established in that case have been systematically recited , inter alia , in decisions delivered during DATE , in judgments nos . CARDINAL/CARDINAL ( legal reason no . CARDINAL ) ; ORG ( legal reason no . CARDINAL ) ; PERSON ( legal reason no . CARDINAL ) ; CARDINAL ( legal reason no . CARDINAL ) ; CARDINAL ( legal reason no . CARDINAL ) ; PERSON ( legal reason no . CARDINAL ) ; and CARDINAL ( legal reason no . CARDINAL ) . As a general rule , the following CARDINAL conditions must be satisfied for amparo relief to be granted :

( a ) The appellant must have a personal legitimate right or interest capable of being affected by the judicial review proceedings concerned ...

( b ) It must be possible for the court or tribunal concerned to identify the appellant . Whether that requirement is satisfied will depend essentially on the information set out in the notice of application , the administrative file or the grounds of appeal ...

( c ) Lastly , the appellant must have been a victim of a material infringement of his or her defence rights [ indefensión material ] . There will be no material infringement of defence rights if the person concerned has constructive notice of the proceedings and has not appeared through want of diligence . A finding that the person concerned had constructive notice of the proceedings must be based on reliable evidence [ fehaciente ] ( judgments nos . CARDINAL/CARDINAL ( legal reason no . CARDINAL ) ; CARDINAL ( legal reason no . CARDINAL ) ; CARDINAL/CARDINAL ( legal reason no . CARDINAL ) ; CARDINAL ( legal reason no . CARDINAL ) ; and CARDINAL ( legal reason no . CARDINAL ) ) . That does not prevent proof being established on the basis of presumptions ( judgments nos . DATE ( legal reason no . CARDINAL ) ; CARDINAL ( legal reason no . CARDINAL ) ; CARDINAL ( legal reason no . CARDINAL ) ; and CARDINAL ( legal reason no . CARDINAL ) . The presumption that the person concerned had notice will be particularly strong in cases concerning civil servants employed by an authority that is a defendant in the proceedings ( judgments LAW . CARDINAL ( legal reason no . CARDINAL ) ; and CARDINAL ( legal reason no . CARDINAL ) ) .

The application of the aforementioned constitutional parameters to the present case gives the following results :

( a ) Firstly , the appellants indisputably had a legitimate interest ...

( b ) Secondly , ... in the present case , ORG had precise details of the co - defendants or other parties , as the application for judicial review referred to the provisional list of the selected and unselected candidates ... and even the final list of candidates ...

( c ) However , thirdly , as to whether there has been a material infringement of the rights of the defence , this Court held in its judgment no . PERSON ( legal reason no . CARDINAL ) that it was reasonable to presume that teachers had constructive notice of judicial review proceedings when , as in the present case , they had been appointed to their senior teaching posts following a competition that had been challenged in the administrative courts , had attracted extensive media coverage and had had an important impact in trade - union circles ...

We reach the same conclusion in the present case . A number of articles on the proceedings challenging the scale used in the competition ( and the list of candidates selected to take part ) have appeared in large circulation newspapers in GPE ( the case has received extensive coverage in PERSON ( GPE ) , ORG ( PERSON edition ) , PERSON , GPE , PERSON and PERSON ) ) . The underlying issues were also examined by the NORP parliament at a briefing session ( held on DATE ) . In DATE ORG and ORG sent a memorandum to the teachers via the ‘ ORG Office’ expressly informing them of the proceedings pending in ORG . To these considerations must be added the subjective characteristics common to all the applicants : they are all civil servants employed by the defendant authority ; as teachers , they are in a category of the population that has frequent access to the media , particularly the press . Lastly , the number of people affected by the appeals is very high ( CARDINAL teachers entered the competition and CARDINAL were selected in a very specific functional environment ( teaching ) ) . In the light of the foregoing , we reach the clear conclusion that the appellants had constructive notice of the judicial review proceedings that were heard by ORG in GPE . Consequently , their failure to take part in those proceedings was not attributable to any lack of diligence by that ORG . Accordingly , there has been no violation of the right to the protection of the courts ( LAW ) . ”

“ CARDINAL . Everyone shall have the right to the effective protection of the judges and courts in the exercise of his rights and legitimate interests and shall never be left defenceless .

Likewise , everyone shall have the right of access to a judge of ordinary jurisdiction , as predetermined by law , to defend himself and to be assisted by a lawyer , to be informed of the charges against him , to have a public trial without undue delay and attended by all safeguards , to use the evidence relevant to his defence , not to incriminate himself , not to admit guilt and to be presumed innocent .

“ Everyone appearing to have an interest in the dispute shall be immediately informed of any decision by the authority that issued the relevant instrument or provision to forward the administrative file to the court and summoned within DATE to attend the hearing ... ”

NORP In a series of judgments published in ORG of the ORG , ORG has established the legal principles applicable to cases in which interested third parties have not been personally served with summonses requiring their appearance in judicial review proceedings to which they were not parties ( see section CARDINAL of FAC ) . A detailed summary of the rules is to be found in ORG judgment of DATE in the present case ( see paragraph CARDINAL above ) .

It is the settled case - law of ORG that anyone with constructive notice of and a legitimate personal interest in judicial review proceedings who has not been personally served with a summons to take part in those proceedings may apply to the court for leave to do so by virtue of LAW . A number of interested parties were given leave to intervene in some of the applications for judicial review heard by ORG challenging the assessment criteria used by the authority ( see paragraph CARDINAL above ) .


Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens

The applicant , PERSON , is a NORP national who was born in DATE and lives in the town of ORG , ORG .

The respondent Government were represented by PERSON GPE , the then Representative of GPE at ORG .

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

On DATE the applicant ’s neighbour ( the plaintiff ) lodged a claim with a court , seeking partition of the plot of land on which their respective houses were situated . On DATE ORG of GPE granted the plaintiff ’s claim . On DATE ORG upheld the judgment .

On DATE the Presidium of ORG on the applicant ’s request quashed the above judgments by way of supervisory review and remitted the case for fresh consideration .

On DATE the ORG commissioned an expert report and requested the plaintiff to pay for it .

On DATE the court discontinued the proceedings because of the plaintiff ’s failure to pay for the expert report . This decision was not appealed against and became final .

In the meantime , the applicant complained about the length of the proceedings . By letters of DATE and DATE , the President of ORG instructed the President of ORG to make inquiries and to speed up the proceedings . In reply , by a letter of DATE , the President of ORG informed that the case had been discontinued on DATE and that the applicant had been informed accordingly . A copy of the letter of CARDINAL DATE was sent to the applicant .

According to the Government , on DATE the plaintiff brought new proceedings against the applicant in ORG . The plaintiff sought a delimitation of their respective plots of land . On DATE , ORG declined jurisdiction in favour of a justice of the peace .

On DATE the applicant lodged a counterclaim requesting the court to order the plaintiff not to impede her use of the land . ORG declined jurisdiction in respect of the counterclaim in favour of a justice of the peace .

Both cases were joined and a hearing was scheduled for DATE . On that date the justice of the peace declined , however , jurisdiction in favour of ORG .

On DATE ORG scheduled a hearing for DATE . The hearing was adjourned until DATE because the applicant failed to attend . DATE and DATE the proceedings were suspended awaiting an expert report . On DATE the judge requested a ORG agency to provide information on the land plots in question . On DATE the judge granted the applicant ’s request and ordered another expert report .

On DATE the expert requested further details about the case and asked for payment . On DATE the judge forwarded this request to the parties . On DATE the judge resumed the proceedings . On DATE the judge adjourned the proceedings in view of the applicant ’s wish to retain counsel . On DATE the judge granted the applicant ’s additional request and ordered another expert report . However , on DATE the applicant withdrew her request .

By a judgment of CARDINAL DATE ORG granted the plaintiff ’s claims . On DATE ORG set aside this judgment and required a new hearing .

On DATE ORG , having obtained the parties’ consent , ordered yet another expert report . On DATE the expert refused to issue the report , referring to the applicant ’s alleged repeated challenges to different experts and attempts to influence them .

On ORG insistence , on DATE the expert issued the report . On DATE ORG granted the plaintiff ’s claims . On DATE ORG upheld the judgment .

The applicant also brought separate proceedings against the bailiff service in relation to the judgment of CARDINAL DATE . She claimed that it contained wrong findings and that the bailiff had wrongly set the delimitation border between the respective plots of land . By the final judgment of DATE ORG rejected her claims as unfounded .


Violation of Art. 6-1;Costs and expenses partial award - Convention proceedings

Mr Cheniti Omar , an NORP national who was born in DATE , is retired and lives in GPE .

His CARDINAL sons , ORG and PERSON , who are also NORP nationals , and were born in DATE and DATE respectively , were building workers at the material time .

The CARDINAL applicants were charged in DATE with aiding and abetting the investment , concealment or conversion of funds derived from drug trafficking . PERSON was detained on remand from CARDINAL DATE to CARDINAL DATE and PERSON and PERSON from CARDINAL DATE to CARDINAL DATE . On release they were placed under judicial supervision .

On DATE the investigating judge appointed an expert to inspect the accounts of a number of firms and those of the PERSON family . The expert filed his main report on DATE and a supplementary report on CARDINAL DATE .

By an order of CARDINAL DATE the applicants were committed for trial in ORG , which , in a judgment of DATE , sentenced PERSON to four years’ imprisonment , DATE of which were suspended , and PERSON and PERSON to DATE imprisonment each . It also issued warrants for their arrest .

The court held , inter alia , that the offence of laundering the proceeds of drug trafficking had been made out by the fact that the accused were unable to give convincing explanations regarding the source of the family ’s considerable income . The expert had noted the existence of CARDINAL bank accounts containing a total of MONEY , whose origin could not be explained solely by the activity of the trading or property companies owned by the accused , notwithstanding their assertion during the investigation that they had accumulated the money by not declaring their earnings to the inland revenue .

NORP The CARDINAL applicants appealed against the above judgment and requested a second expert opinion on their accounts .

On DATE the case was heard at an adversarial hearing attended by the accused .

In a judgment of DATE ORG fully upheld the impugned judgment with regard to the DATE prison sentences imposed on PERSON and PERSON and raised PERSON sentence to DATE . It also issued warrants for the arrest of each of the CARDINAL applicants , with a view to ensuring that they would serve the sentences imposed on them . They , although duly informed of the date on which the judgment would be delivered , were not in court .

Acting through a lawyer at ORG , the CARDINAL applicants lodged an appeal on points of law within the time - limit of CARDINAL clear days laid down by LAW ( see paragraph CARDINAL below ) . None of the applicants complied with the arrest warrants issued , but PERSON was arrested by the police at his place of work on DATE and committed to prison pursuant to the warrant for his arrest .

On DATE ORG declared the appeal inadmissible on the ground that :

“ It follows from the general principles of criminal procedure that a convicted person who has not complied with a warrant for his arrest is not entitled to act through a representative in order to lodge an appeal on points of law . It can not be otherwise unless evidence has been supplied of circumstances making it absolutely impossible for him to surrender to custody at the appropriate time . As no such evidence has been supplied by the CARDINAL appellants , against whom arrest warrants were issued after they had appeared in court for the hearing , their appeal , which has been lodged by an attorney practising in ORG , must be declared inadmissible . ”

In DATE and DATE PERSON and PERSON were arrested and committed to prison pursuant to the warrants for their arrest .

On DATE and CARDINAL DATE the prefect of the Rhône département issued deportation orders against them .

In NORP law an appeal on points of law , which is an exceptional remedy , may be lodged by any person who has an interest in doing so and gives notice within the time - limit , against any judicial decision given at last instance .

Article CARDINAL of LAW , which lays down the formalities to be observed in connection with appeals on points of law , provides :

“ Notice of an appeal on points of law must be given to the registrar of the court which has delivered the decision being challenged .

It must be signed by the registrar and by the appellant himself or by an attorney ( avoué ) of the court which has given judgment or by a specially authorised agent . In the last - mentioned case , the authority to act shall be annexed to the document drawn up by the registrar …

Article CARDINAL of the Code of Criminal Procedure provides :

“ The prosecution and all parties shall have DATE after the date on which the impugned decision was given in which to lodge an appeal on points of law . ”

“ During the time allowed for an appeal on points of law and , where such an appeal has been lodged , until ORG delivers judgment , execution of the judgment of ORG shall be stayed , except in respect of orders concerning civil matters , and unless ORG upholds the warrant issued by the trial court pursuant to LAW , first sub - paragraph , or unless it issues a warrant itself under the same conditions and according to the same rules . ”

The suspensive effect of an appeal on points of law is derived from statute and may therefore likewise be restricted by statute , particularly in the interests of speedier and more effective punishment . That is the case where an arrest warrant has been issued by the trial court ( see , to that effect , PERSON , PERSON , GPE , CARDINALth edition , DATE , § MONEY ) .

“ If a person sentenced to a term of imprisonment of DATE has not surrendered to custody and has not obtained from the court which convicted him exemption , on or without payment of a surety , from the obligation to surrender to custody , his right to appeal on points of law shall be forfeit .

The memorandum of imprisonment or the judgment granting exemption shall be produced before ORG not later than the time when the case is called for hearing .

For his appeal to be admissible , it is sufficient for the appellant to establish that he has surrendered to custody at a prison , either in the place where ORG sits or in the place where sentence was passed . The governor of that prison shall admit him there on the order of ORG at ORG or of the head of the public prosecutor ’s office at the court of trial or appeal . ”

ORG has ruled on a number of occasions that an appeal lodged by the representative of a convicted person who has not complied with a warrant for his arrest is inadmissible ( PERSON . crim . DATE , PERSON , p. CARDINAL ) . But the convicted person may give notice himself of his intention to appeal ( PERSON . crim . DATE , ORG . Crim . no . CARDINAL ) , subject to the provisions of LAW , reproduced above .

ORG considers that an appeal is admissible in the following CARDINAL situations :

( a ) where , instead of acting through a representative , the appellant signs the notice of intention to appeal in person ( PERSON . crim . DATE , ORG . crim . no . CARDINAL ) by reporting to the registry before the warrant has been executed ( PERSON . crim . PERCENT , ORG . crim . no . CARDINAL ) and accepting the risk of being arrested by mentioning his exact address in the notice ( PERSON . crim . CARDINAL DATE , ORG . crim . no . CARDINAL ; GPE . DATE , ORG . crim . , p. CARDINAL , confirmed by a decision of CARDINAL DATE published in ORG , ORG . , p. CARDINAL ) ;

( b ) where , when acting through a representative , in accordance with LAW , he can prove that there were “ circumstances that made it absolutely impossible for him to surrender to custody at the appropriate time ” ( PERSON . crim . CARDINAL DATE , ORG . crim . no . CARDINAL ; PERSON . crim . DATE , ORG . crim . no . CARDINAL ; PERSON . crim . CARDINAL DATE ; PERSON . crim . DATE , ORG . crim . no . CARDINAL ) .


Violations of Art. 3;No violation of Art. 5-1 (two periods of detention);Violation of Art. 5-1 (two periods of detention);Violation of Art. 5-3;Violations of Art. 5-4;Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses (Convention proceedings) - claim dismissed

The applicant was born in DATE . On CARDINAL DATE he arrived in GPE from GPE . He stayed in PERSON at his cousin 's flat .

On DATE the applicant was arrested on suspicion of the unlawful purchase and possession of drugs . A search was carried out in the flat where he was staying .

On DATE the applicant was charged under LAW CARDINAL of LAW with the unlawful purchase and possession of QUANTITY of hashish . He pleaded not guilty and indicated that he did not need an interpreter because he had studied in GPE .

On DATE and DATE the applicant 's detention was extended until DATE .

On DATE ORG of PERSON refused the applicant 's request for release on bail . It found that the applicant 's detention had been extended in accordance with the law and that no grounds for releasing him could be established . The applicant did not appeal to ORG .

On DATE the acting Prosecutor General approved the extension of the applicant 's detention until DATE . The applicant appealed to ORG , which on DATE dismissed the appeal , finding that the applicant had been charged with an particularly serious criminal offence and had resided in PERSON only temporarily , his permanent residence being in GPE , NORP , so that there was good reason to suspect that he would abscond if released . The applicant did not appeal against that decision to ORG .

On DATE the supervising prosecutor approved the bill of indictment and the case against the applicant and CARDINAL co - defendants was sent to ORG for trial .

On DATE and CARDINAL DATE the applicant requested ORG to review the lawfulness of his detention on remand .

On DATE ORG ordered the case to be remitted for an additional investigation because the bill of indictment had not been translated into the NORP language , even though CARDINAL of the defendants were NORP . The court held that the applicant and his co - defendants should remain in custody .

On DATE the prosecution appealed against the decision but subsequently withdrew their appeal . On DATE the case was returned to ORG for examination on the merits .

On DATE ORG ordered the case to be remitted for an additional investigation because the rights of some of the defendants had been unlawfully restricted . The prosecution appealed .

On DATE ORG of the Russian Federation quashed the decision of DATE . It found that , after the case had been remitted for an additional investigation on DATE , the prosecution had not remedied the defects identified by ORG . In particular , the prosecution had not arranged for translation of the bill of indictment or checked that the interpreter had the requisite skills . In view of these procedural defects , ORG held that all the subsequent judicial decisions had been unlawful and remitted the case to ORG for implementation of the decision of DATE .

On DATE the case was remitted to the prosecutor of GPE for an additional investigation . On DATE a deputy prosecutor of LOC extended the applicant 's detention on remand by DATE , until DATE .

On DATE the prosecutor of GPE applied to ORG for an order extending the applicant 's detention . The applicant lodged objections in which he alleged , inter alia , that the prosecution had thus far failed to perform any additional investigation .

On DATE the ORG established that the bill of indictment had been translated into NORP and that on DATE the defendants and their lawyers had begun their examination of the case file . Noting the gravity of the charges against the applicant , his NORP nationality and absence of a permanent residence in PERSON , ORG further remanded him in custody until DATE .

On DATE and CARDINAL DATE the applicant appealed against the decision of ORG .

On DATE ORG established that one of the applicant 's co - defendants had not been provided with an interpreter into NORP and that the applicant and other co - defendants had had no access to the materials examined by ORG . It held as follows :

“ The defects of the court hearing described above and the curtailing of the defendants ' statutory rights ... are substantial violations of the rules of criminal procedure , which could have affected the judge 's conclusions ; the decision [ of DATE ] must therefore be quashed and the materials of the case relating to the extension of the defendants ' pre - trial detention must be referred for a new judicial examination . During the new examination of the prosecutor 's request , the above defects shall be remedied ... and the arguments by the defendants and their counsel , including those concerning the lawfulness of their detention , shall be reviewed ... The preventive measure [ imposed on , in particular , the applicant ] shall remain unchanged ” .

By an interim decision of the same date , ORG refused the applicant leave to appear at the appeal hearing .

On DATE and DATE ORG adjourned hearings in order to afford the defendants additional time in which to read the case - file .

On DATE ORG upheld a challenge by the applicant against the presiding judge .

On DATE , DATE , CARDINAL and DATE hearings were adjourned because of the absence of several lawyers , including the applicant 's counsel .

On DATE the Vladimir Regional Court again granted the prosecutor 's request ( of DATE ) for an extension of the defendants ' detention on remand until DATE . It found that it was necessary for the applicant to remain in custody because he was a national of NORP , was not registered as resident in PERSON , and had been charged with a serious criminal offence . The court also referred to certain “ conclusions ” contained in the prosecutor 's application to the effect that the applicant might abscond or obstruct justice . The content of these “ conclusions ” was not disclosed .

On DATE the applicant lodged an appeal against the decision of ORG . He claimed that the contested decision was “ unlawful and unconstitutional ” and requested leave to appear in person at the appeal hearing .

On DATE ORG upheld the decision of DATE , finding as follows :

“ The judge came to a well - justified conclusion that the defendants ... could not be [ released pending trial ] . The judge had regard to the fact that these persons were charged with serious and particularly serious criminal offences , he considered the information on their character and all the circumstances to which the prosecutor had referred in support of his application ...

The fact that the above - mentioned decision on the prosecutor 's application was [ only ] made after the defendants had spent that length of time in custody ... is not a ground for quashing the decision of DATE because the first judicial decision on this matter was quashed in accordance with the law and the prosecutor 's application of DATE was remitted for a new examination . The subsequent progress of the criminal case is , under these circumstances , of no relevance to a decision on the prosecutor 's application . ”

By an interim decision of the same date , ORG refused the applicant 's request for leave to appear because the defendants ' arguments were clearly set out in their grounds of appeal and their lawyers were present at the hearing while the prosecutor was not .

Meanwhile , on DATE the additional investigation was completed and the case sent to ORG . On or about that date the applicant asked the court to order his release pending the trial .

On DATE the ORG fixed the first hearing for DATE and held that the applicant should remain in custody pending trial :

“ [ The court ] did not establish any grounds ... to amend or revoke the preventive measure imposed on the accused given the gravity of the offence with which the defendants are charged . Furthermore , the fact that the court decision extending the detention on remand of several defendants in order to afford them [ time ] to examine the case materials was quashed on appeal is of no legal significance . [ In its decision of DATE ] ORG did not revoke the preventive measure , the case was referred to the [ trial ] court without delay and no other grounds for amending the preventive measure were established . ”

On DATE the applicant lodged an appeal against the decision . He complained , in particular , that his detention was unlawful because it had significantly exceeded the maximum DATE period permitted by law , that the conditions in which he was detained were poor and that he had been ill - treated by police officers , both at the time of his arrest and subsequently . He alleged that his notice of appeal had never been dispatched to ORG .

On DATE the hearing was adjourned until DATE because CARDINAL defendants had failed to appear . On DATE the applicant prepared an appeal against the decision to adjourn the hearing ; in the notice of appeal , he also repeated the points he had raised in his appeal of CARDINAL DATE . He again stated that his notice of appeal had not been sent to ORG .

On DATE the ORG established that the case was not ready for consideration on the merits because of a series of procedural defects : in particular , several defendants had not had sufficient time to study the case file , CARDINAL defendant had not been provided with interpretation facilities into NORP , and the applicant had not been informed in good time of the expert examinations . The court remitted the case for an additional investigation and remanded the defendants in custody “ in the light of the gravity and dangerous nature of the offences ” .

On DATE the prosecution appealed against the decision of CARDINAL DATE and the applicant did likewise on DATE . The applicant submitted , in particular , that the domestic law did not permit extensions of detention “ during the investigation ” beyond the maximum period of DATE which had expired , in his case , on DATE .

On CARDINAL DATE the case - file was forwarded to ORG for examination of the issue of detention on remand .

On DATE ORG refused , in an interim decision , the applicant 's request for leave to appear , holding that his position had been clearly and exhaustively stated in the grounds of appeal .

On DATE it examined the appeals lodged by the prosecutor , the applicant and his co - defendants and found that the defence rights had not been impaired . On this ground it quashed the decision of DATE and instructed ORG to proceed with the trial . It held that the applicant and his co - defendants should remain in custody because “ there were no legal grounds to amend the preventive measure given the gravity and dangerous nature of the offences ” .

On DATE the case - file was returned to ORG .

On DATE the Vladimir Regional Court extended the applicant 's detention on remand until DATE . It found as follows :

“ The case was referred to ORG on DATE ; on DATE it was decided to remit the case for additional investigation . On DATE ORG quashed that decision on appeal by the prosecutor . Thus , the defendants have remained in custody for DATE and DATE , starting from the date of the case 's referral and excluding the period between [ the end of the ] examination on the merits and the quashing of the decision [ of DATE ] on appeal .

Regard being had to the fact that the defendant is charged with serious and particularly serious criminal offences , in order to secure the examination of the case and the enforcement of the conviction [ sic ] , there are no grounds to [ release the applicant ] . Under these circumstances , pursuant to LAW of LAW , the defendant 's detention on remand is extended for DATE ” .

On DATE the ORG granted a further extension of the applicant 's detention for DATE , that is to say until DATE [ the decision mistakenly indicates DATE ] . The grounds invoked by the court were identical to those set out in the decision of DATE .

On DATE and DATE and DATE the applicant 's lawyers lodged appeals against the decisions of CARDINAL DATE and CARDINAL DATE with ORG . They submitted , in particular , that the DATE period of the applicant 's detention which had started from the moment the case was referred for trial , had expired on DATE but had been extended DATE , on DATE . Therefore , the applicant 's detention from CARDINAL March to CARDINAL DATE had not been covered by any detention order : the prosecution had not assumed responsibility for the case , whilst the courts considered that the case had been remitted for an additional investigation and held the prosecution accountable for the applicant 's detention .

On DATE , CARDINAL May , DATE and DATE and CARDINAL DATE the ORG authorised further extensions of detention in respect of the applicant and CARDINAL co - defendants , on each occasion for DATE . The reasons given in the decisions of DATE , CARDINAL May and CARDINAL DATE were identical to those given in the decisions of CARDINAL DATE and DATE ( see above ) . The decisions of CARDINAL DATE and DATE referred to the gravity of the charges and the existence of “ sufficient reasons to believe that the defendants would abscond ” .

The applicant submitted appeals against each of these decisions .

DATE and DATE the trial proceeded . On DATE the parties began their final submissions .

DATE . On DATE the Vladimir Regional Court , by an interim decision , held that the applicant 's detention on remand was not to be extended because the prosecution had reduced the charges against him . He appears to have been released from custody DATE .

On DATE ORG examined the applicant 's and/or his co - defendants ' appeals against the decisions of CARDINAL DATE and DATE , CARDINAL DATE , CARDINAL May , DATE and DATE and DATE extending their detention on remand .

ORG quashed the decisions of DATE and DATE and DATE on the ground that they had been given by an incomplete formation : a single judge instead of a CARDINAL - judge panel . As regards the applicant 's situation , it further held :

“ Since the judge 's decision has been quashed because of a breach of the rules of criminal procedure , the court will not examine the arguments in the appeals alleging that the extension of the [ applicant 's ] detention was unlawful on other grounds . The matter will not be remitted for a new examination because [ the applicant ] has been acquitted . ”

ORG upheld the other decisions , finding that ORG had correctly referred to the gravity of the charges and the existence of sufficient grounds to believe that the defendants would abscond during the trial .

On DATE ORG , by an interim decision , dismissed the charges of participation in an organised criminal enterprise and running an opium den against the applicant after they were withdrawn by the prosecution .

By another interim decision of the same date , the court dismissed a charge against the applicant in respect of CARDINAL incident of drug possession because of a recent change in the NORP criminal law that had decriminalised possession of negligible amounts of drugs .

Finally , by a judgment of DATE , the court acquitted the applicant of the remaining drug - trafficking charges because his involvement in the commission of the offences could not be proven . Some of his co - defendants were convicted and sentenced to various terms of imprisonment .

On DATE ORG of GPE upheld , on appeal , the above judgment and decisions of ORG .

On DATE ORG examined the applicant 's complaint concerning his exclusion from the proceedings before ORG and confirmed that the applicant should have had the right to appear in person and plead his case before the court if a prosecutor was present .

On DATE ORG issued decision ( определение ) no . CARDINAL on the applicant 's complaint about the ex post facto extension of his “ detention during trial ” by ORG decision of DATE . It held as follows :

“ LAW provides that the [ trial court ] may ... upon the expiry of DATE after the case was sent to it , extend the defendant 's detention for successive periods of DATE . It does not contain , however , any provisions permitting the courts to take a decision extending the defendant 's detention on remand once the previously authorised time - limit has expired , in which event the person is detained for a period without a judicial decision . Nor do other rules of criminal procedure provide for such a possibility . Moreover , Articles CARDINAL § CARDINAL and CARDINAL § CARDINAL of LAW expressly require the court , prosecutor , investigator ... to release anyone who is unlawfully held in custody beyond the time - limit established in the LAW immediately . Such is also the requirement of LAW and CARDINAL of LAW ... which is an integral part of the legal system of GPE , pursuant to LAW ... ”

On DATE the ORG delivered decision no . CARDINAL on the applicant 's complaint about ORG refusal to permit him to attend the appeal hearings on the issue of detention . It held :

“ LAW regulating the presence of a defendant remanded in custody before the appeal court ... can not be read as depriving the defendant held in custody ... of the right to express his opinion to the appeal court , by way of his personal attendance at the hearing or by other lawful means , on matters relating to the examination of his complaint about a judicial decision affecting his constitutional rights and freedoms ... ”

From DATE to CARDINAL DATE the applicant was held in detention facility no . OD-CARDINAL/T-CARDINAL of GPE ( учреждение ОДCARDINAL/Т-CARDINAL PERSON по PERSON области ) , known as “ Vladimirskiy NORP ” . He stayed in various cells in wings CARDINAL . CARDINAL and DATE , built in DATE and DATE , respectively .

According to a certificate issued on DATE by the facility director , and which the Government have produced , the applicant was kept in CARDINAL cells described as follows : cell no . CARDINAL - CARDINAL ( QUANTITY , CARDINAL bunks , average population CARDINAL to CARDINAL inmates ) , cell no . CARDINAL ( QUANTITY . m , CARDINAL bunks , CARDINAL to CARDINAL inmates ) , cell no . CARDINAL - CARDINAL ( QUANTITY . m , CARDINAL bunks , CARDINAL inmates ) , cells CARDINAL . CARDINAL , DATE , DATE , CARDINAL and DATE ( CARDINAL to QUANTITY m , QUANTITY , CARDINAL inmates ) .

The applicant did not dispute the cell measurements or the number of bunks . He disagreed , however , with the figure given by the Government for the number of inmates . According to him , DATE he stayed in cell no . CARDINAL - CARDINAL that housed CARDINAL inmates and DATE and DATE he was kept in cells measuring approximately QUANTITY . m , together with CARDINAL other detainees . After the new Code of Criminal Procedure came into effect on DATE , the number of inmates in his cell dropped to CARDINAL . Given the lack of beds , inmates slept in TIME shifts . They waited for their turn sitting on the concrete floor or on a stool if one was available .

In support of his statements the applicant produced written depositions by CARDINAL former cellmates , PERSON , Mr PERSON and Mr PERSON . They stated , in particular , that in DATE cell no . CARDINAL had housed CARDINAL inmates ( Mr PERSON 's deposition ) or even CARDINAL to DATE ( Mr PERSON 's deposition ) , as had cells CARDINAL . CARDINAL and DATE . They also testified that they and the other detainees had slept in turns .

The Government , relying on a certificate of DATE from the facility director , submitted that the “ sanitary and anti - epidemic condition of the facility remained satisfactory , including ... in the cells where [ the applicant ] had been held ” . Another certificate of DATE showed that “ the cells ... were equipped with [ a lavatory pan ] placed CARDINAL cm above the floor and separated by a partition of QUANTITY in height with additional curtains ” . Running tap water was available and detainees were permitted to use immersion heaters .

The applicant conceded that there had been no outbreaks of contagious diseases or epidemics . Apart from that , the sanitary conditions were wholly unsatisfactory . Prisoners infected with tuberculosis , hepatitis , scabies and the human immunodeficiency virus ( HIV ) were occasionally held in his cell . The cells were infested by lice , bed - bugs , flies , mosquitoes , cockroaches , rats and mice , but the facility administration did not provide any repellents or insecticides . Detainees were not given any toiletries , such as soap , toothbrush , toothpaste or toilet paper , apart from QUANTITY of caustic soda once DATE and CARDINAL plastic bottles of bleach ( QUANTITY each ) DATE . Cells had no ventilation systems . In DATE they were cold and in DATE it was hot , stuffy and excessively damp inside .

The applicant challenged the ORG 's description of the toilet facilities as factually untrue . The cast - iron pan was raised on a pedestal CARDINAL cm high and separated from the living area from CARDINAL side with a QUANTITY - high partition . The person using the toilet was in full view of other inmates . No curtains were provided ; occasionally the inmates hung a sheet but wardens tore it down and disciplined those responsible . What is more , the lavatory pan had no seat or cover : inmates stuck an empty plastic bottle in the hole in order to prevent smells from spreading . The dining table was fixed to the floor just QUANTITY from the pan . His description was corroborated by written depositions by former cellmates , Mr PERSON , Mr Gunin , Mr PERSON and Mr PERSON , and CARDINAL colour photos showing the lavatory pan and the dining table from various angles .

The Government asserted that “ the applicant was fed in accordance with the established legal norms ” . It appears from an undated certificate signed by the facility director that his DATE diet consisted of CARDINAL g of meat , CARDINAL g of fish , QUANTITY , CARDINAL g of pasta , QUANTITY of salt , QUANTITY of tea [ sic ] , QUANTITY of potatoes , QUANTITY of vegetables , QUANTITY of bread .

The applicant submitted that the food was of an extremely low quality . Many a meal only contained so - called balanda , a soup - like mix of millet , barley and pasta without any fat . Meat was replaced with a soya substitute . No fresh vegetables were given , occasionally the evening meal included cooked beetroot , sauerkraut or pickled cucumbers . Salt and tea were never distributed . Written depositions by CARDINAL of the applicant 's former cellmates confirmed these submissions .

The parties agreed that the applicant had been entitled to a DATE walk of TIME . The applicant indicated , however , that he was not able to go outdoors on DATE when there were court hearings .

The Government did not describe the outdoor conditions . The applicant , and CARDINAL former cellmates in written depositions , portrayed the following picture of the exercise yards : The yards were closed LOC measuring CARDINAL , CARDINAL or QUANTITY m. The opening to the sky was covered with a metal roof with a QUANTITY gap between the roof and the top of the walls . In DATE it was extremely hot and stifling inside as the sun heated the roof . The walls were coated with so - called shuba , a sort of abrasive concrete lining , designed to prevent detainees from leaning on the walls . The entire cell population was brought to the yard at once ; occasionally it was impossible to move around , let alone to exercise , because of the sheer number of prisoners .

DATE . According to the applicant , metal blinds that prevented natural light getting into the cells were only removed on DATE after a delegation that included a representative of ORG had paid a visit to PERSON detention facilities . The Government did not contest that information .

The applicant 's relatives were not permitted to see him throughout the pre - trial investigation . After the trial began , he was allowed CARDINAL short visits by his wife , children , sister and brother . At these meetings the applicant and his parents were prohibited from talking in any language other than NORP . The applicant was likewise prohibited from corresponding with his relatives other than in NORP : the facility administration refused to dispatch or hand over letters written in NORP .

The Government explained that these restrictions had been due to the lack of a staff interpreter from NORP in the facility .

The applicant was transported from the remand centre to ORG for hearings on CARDINAL occasions ; of these hearings , CARDINAL concerned the charges against him and CARDINAL applications for extensions of detention . The applicant offered the following description of DATE , which was corroborated by written depositions from CARDINAL former cellmates .

On DATE of the hearing he was woken up at CARDINAL or TIME At TIME he was taken from his cell to the so - called “ assembly cell ” , together with other detainees who had a hearing on DATE . Each “ assembly cell ” measured CARDINAL to QUANTITY . m and housed CARDINAL prisoners . “ ORG cells ” had no ventilation system and the air was soon heavy with smoke . At CARDINAL or TIME the applicant was taken to a van .

The prison van had CARDINAL collective compartment designed for CARDINAL prisoners and CARDINAL individual compartments of QUANTITY m. It was designed to carry CARDINAL prisoners . However , it transported CARDINAL and on CARDINAL occasion CARDINAL detainees . The applicant was put in an individual compartment together with another prisoner . Owing to the lack of space , CARDINAL of them would sit on the bench and the other on his lap . The route to ORG took TIME and the van called at other facilities on its way .

The applicant did not normally arrive back at the prison until CARDINAL or CARDINAL p.m. During DATE he received no food or outdoor exercise and was liable to miss out on the shower he was allowed periodically .

The Government submitted that the applicant had been transported in special prison vans that met the standard requirements . The route from facility no . OD-CARDINAL/T-CARDINAL to ORG was QUANTITY long and took TIME .

DATE . Until DATE criminal - law matters were governed by LAW of DATE , “ the old CCrP ” ) . From DATE the old ORG was replaced by LAW ( Law no . CARDINAL of DATE , “ the new CCrP ” ) .

“ Preventive measures ” or “ measures of restraint ” ( меры пресечения ) include an undertaking not to leave a town or region , personal security , bail and detention on remand ( LAW CCrP , LAW ) .

LAW of DATE establishes that a judicial decision is required before a defendant can be detained or his or her detention extended ( Article CARDINAL ) .

Under the old ORG , a decision ordering detention on remand could be taken by a prosecutor or a court ( LAW , CARDINAL and DATE ) .

The new ORG requires a judicial decision by a district or town court on a reasoned request by a prosecutor supported by appropriate evidence ( LAW CARDINAL , CARDINAL - CARDINAL ) .

When deciding whether to remand an accused in custody , the competent authority is required to consider whether there are “ sufficient grounds to believe ” that he or she would abscond during the investigation or trial or obstruct the establishment of the truth or re - offend ( LAW CCrP ) . It must also take into account the gravity of the charge , information on the accused 's character , his or her profession , age , state of health , family status and other circumstances ( LAW CCrP , LAW ) .

NORP Before DATE , detention on remand was authorised if the accused was charged with a criminal offence carrying a sentence of DATE imprisonment or if there were “ exceptional circumstances ” in the case ( Article CARDINAL ) . On DATE the old ORG was amended to permit defendants to be remanded in custody if the charge carried a sentence of DATE imprisonment or if they had previously defaulted or had no permanent residence in GPE or if their identity could not be ascertained . The amendments of DATE also repealed the provision that permitted defendants to be remanded in custody on the sole ground of the dangerous nature of the criminal offence they committed . The new ORG reproduced the amended provisions ( Articles CARDINAL § CARDINAL and CARDINAL § CARDINAL ) and added that a defendant should not be remanded in custody if a less severe preventive measure was available .

The Codes distinguished CARDINAL types of detention on remand : the first being “ pending the investigation ” , that is while a competent agency – the police or a prosecutor 's office – investigated the case , and the second “ before the court ” ( or “ during the trial ” ) , that is while the case was being tried in court . Although there was no difference in practice between them ( the detainee was held in the same detention facility ) , the calculation of the time - limits was different .

After arrest the suspect is placed in custody “ pending the investigation ” . The maximum permitted period of detention “ pending the investigation ” is DATE but it can be extended for DATE in “ exceptional circumstances ” . Extensions were authorised by prosecutors of ascending hierarchical levels ( under the old CCrP ) but must now be authorised by judicial decisions taken by courts of ascending levels ( under the new ORG ) . No extension of detention “ pending the investigation ” beyond DATE is possible ( LAW CCrP , LAW of the new ORG ) .

The period of detention “ pending the investigation ” is calculated to DATE when the prosecutor sent the case to the trial court ( Article CARDINAL of the old CCrP , Article CARDINAL § CARDINAL of the new CCrP ) .

Access to the file materials is to be granted DATE before the expiry of the authorised detention period ( LAW CCrP , LAW of the new ORG ) . If the defendant needs more time to study the case - file , a judge , on a request by a prosecutor , may grant an extension of detention until such time as the file has been read in full and the case sent for trial ( LAW CCrP , LAW ( CARDINAL ) of the new ORG ) . Under the old ORG , such an extension could not be granted for DATE .

Under the old ORG , the trial court had the right to remit the case for an “ additional investigation ” if it established that procedural defects existed that could not be remedied at the trial . In such cases the defendant 's detention was again classified as “ pending the investigation ” and the relevant time - limit continued to apply . If , however , the case was remitted for an additional investigation , but the investigators had already used up all the time authorised for detention “ pending the investigation ” , a supervising prosecutor could nevertheless extend the detention period for DATE starting from the date he received the case . Subsequent extensions could only be granted if the detention “ pending the investigation ” had not exceeded DATE ( Article CARDINAL ) .

From the date the prosecutor forwards the case to the trial court , the defendant 's detention is “ before the court ” ( or “ during the trial ” ) .

DATE the old ORG set no time - limit for detention “ during the trial ” . On DATE a new LAW was inserted which established that the period of detention “ during the trial ” could not generally exceed DATE from the date the court received the file . However , if there was evidence to show that the defendant 's release might impede a thorough , complete and objective examination of the case , a court could – of its own motion or on a request by a prosecutor – extend the detention by no longer than DATE . These provisions did not apply to defendants charged with particularly serious criminal offences .

The new ORG establishes that the term of detention “ during the trial ” is calculated from the date the court received the file and to the date the judgment is given . The period of detention “ during the trial ” may not normally exceed DATE , but if the case concerns serious or particularly serious criminal offences , the trial court may approve CARDINAL or more extensions of no longer than DATE each ( LAW and CARDINAL ) .

Under the old ORG , the detainee or his or her counsel or representative could challenge the detention order issued by a prosecutor , and any subsequent extension order , before a court . The judge was required to review the lawfulness of and justification for a detention or extension order DATE after receipt of the relevant papers . The review was to be conducted in camera in the presence of a prosecutor and the detainee 's counsel or representative . The detainee was to be summoned and a review in his absence was only permissible in exceptional circumstances if the detainee waived his right to be present of his own free will . The judge could either dismiss the challenge or revoke the pre - trial detention and order the detainee 's release ( LAW ) .

An appeal to a higher court lay against the judge 's decision . It had to be examined within the same time - limit as appeals against a judgment on the merits ( see paragraph CARDINAL below ) ( Article CARDINAL in fine ) .

NORP Under the new CCrP , an appeal may be lodged with a higher court within DATE against a judicial decision ordering or extending detention on remand . The appeal court must decide the appeal within DATE after its receipt ( LAW ) .

Upon receipt of the case - file , the judge must determine , in particular , whether the defendant should remain in custody or be released pending trial ( Articles CARDINAL § CARDINAL and CARDINAL of the old ORG , ORG ( CARDINAL ) and CARDINAL § CARDINAL ( CARDINAL ) of the new ORG ) and rule on any application by the defendant for release ( LAW CCrP ) . If the application was refused , a fresh application could be made once the trial had commenced ( LAW of the old ORG ) .

At any time during the trial the court may order , vary or revoke any preventive measure , including detention on remand ( LAW CCrP , LAW of the new ORG ) . Any such decision must be given in the deliberations room and signed by all the judges in the formation ( LAW ORG , LAW ) .

An appeal against such a decision lies to the higher court . It must be lodged within DATE and examined within the same time - limit as an appeal against the judgment on the merits ( Article CARDINAL of the old CCrP , LAW of the new CCrP – see paragraph CARDINAL below ) .

Under the old ORG , within DATE after receipt of the case - file ( if the defendant was in custody ) , the judge was required either : ( CARDINAL ) to fix the trial date ; ( CARDINAL ) to return the case for an additional investigation ; ( CARDINAL ) to stay or discontinue the proceedings ; or ( CARDINAL ) to refer the case to a court having jurisdiction to hear it ( Article CARDINAL ) . The new ORG empowers the judge , within the same time - limit , ( CARDINAL ) to refer the case to a competent court ; ( CARDINAL ) to fix a date for a preliminary hearing ( предварительное слушание ) ; or ( CARDINAL ) to fix a date for trial ( LAW ) . The trial must begin DATE after the judge has fixed the trial date ( LAW CCrP , LAW ) . There are no restrictions on fixing the date of a preliminary hearing .

The duration of the trial is not limited in time .

Under the old ORG , the appeal court was required to examine an appeal against the first - instance judgment within DATE of its receipt . In exceptional circumstances or in complex cases or in proceedings before ORG this time - limit could be extended by DATE ( Article CARDINAL ) . No further extensions were possible .

The new ORG establishes that the appeal court must start the examination of the appeal DATE after its receipt ( LAW .

The Standard Minimum Rules for the Treatment of Prisoners , adopted by ORG on ORG and the Treatment of Offenders , held at GPE in DATE , and approved by ORG by its resolution CARDINAL C ( XXIV ) of DATE and CARDINAL ( LXII ) of CARDINAL DATE , provide , in particular , as follows :

“ CARDINAL . All accommodation provided for the use of prisoners and in particular all sleeping accommodation shall meet all requirements of health , due regard being paid to climatic conditions and particularly to cubic content of air , minimum floor space , lighting , heating and ventilation ...

In all places where prisoners are required to live or work ,

( a ) The windows shall be large enough to enable the prisoners to read or work by natural light , and shall be so constructed that they can allow the entrance of fresh air whether or not there is artificial ventilation ;

( b ) Artificial light shall be provided sufficient for the prisoners to read or work without injury to eyesight .

The sanitary installations shall be adequate to enable every prisoner to comply with the needs of nature when necessary and in a clean and decent manner .

Adequate bathing and shower installations shall be provided so that every prisoner may be enabled and required to have a bath or shower , at a temperature suitable to the climate , as frequently as necessary for general hygiene according to DATE and geographical region , but at least once a week in a temperate climate .

All pans of an institution regularly used by prisoners shall be properly maintained and kept scrupulously clean at all time .

Prisoners shall be required to keep their persons clean , and to this end they shall be provided with water and with such toilet articles as are necessary for health and cleanliness ...

Every prisoner shall , in accordance with local or national standards , be provided with a separate bed , and with separate and sufficient bedding which shall be clean when issued , kept in good order and changed often enough to ensure its cleanliness .

( CARDINAL ) Every prisoner shall be provided by the administration at the usual TIME with food of nutritional value adequate for health and strength , of wholesome quality and well prepared and served .

( CARDINAL ) Drinking water shall be available to every prisoner whenever he needs it .

( CARDINAL ) Every prisoner who is not employed in outdoor work shall have TIME of suitable exercise in the open air DATE if the weather permits .

CARDINAL ... ( CARDINAL ) The transport of prisoners in conveyances with inadequate ventilation or light , or in any way which would subject them to unnecessary physical hardship , shall be prohibited ... ”

The relevant extracts from the General Reports prepared by ORG for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment ( ORG ) read as follows :

“ CARDINAL . Overcrowding is an issue of direct relevance to the ORG 's mandate . All the services and activities within a prison will be adversely affected if it is required to cater for more prisoners than it was designed to accommodate ; the overall quality of life in the establishment will be lowered , perhaps significantly . Moreover , the level of overcrowding in a prison , or in a particular part of it , might be such as to be in itself inhuman or degrading from a physical standpoint .

A satisfactory programme of activities ( work , education , sport , etc . ) is of crucial importance for the well - being of prisoners ... [ P]risoners can not simply be left to languish for DATE , possibly DATE , locked up in their cells , and this regardless of how good material conditions might be within the cells . The ORG considers that one should aim at ensuring that prisoners in remand establishments are able to spend a reasonable part of DATE ( TIME or more ) outside their cells , engaged in purposeful activity of a varied nature ...

Specific mention should be made of outdoor exercise . The requirement that prisoners be allowed TIME of exercise in the open air every day is widely accepted as a basic safeguard ... It is also axiomatic that outdoor exercise facilities should be reasonably spacious ...

Ready access to proper toilet facilities and the maintenance of good standards of hygiene are essential components of a humane environment ...

The ORG would add that it is particularly concerned when it finds a combination of overcrowding , poor regime activities and inadequate access to toilet / washing facilities in the same establishment . The cumulative effect of such conditions can prove extremely detrimental to prisoners .

It is also very important for prisoners to maintain reasonably good contact with the outside world . Above all , a prisoner must be given the means of safeguarding his relationships with his family and close friends . The guiding principle should be the promotion of contact with the outside world ; any limitations upon such contact should be based exclusively on security concerns of an appreciable nature or resource considerations ... ”

“ CARDINAL . As the ORG pointed out in DATE ORG , prison overcrowding is an issue of direct relevance to the ORG 's mandate ( cf . ORG ( CARDINAL ) CARDINAL , paragraph CARDINAL ) . An overcrowded prison entails cramped and unhygienic accommodation ; a constant lack of privacy ( even when performing such basic tasks as using a sanitary facility ) ; reduced out - of - cell activities , due to demand outstripping the staff and facilities available ; overburdened health - care services ; increased tension and hence more violence between prisoners and between prisoners and staff . This list is far from exhaustive .

The ORG has been led to conclude on CARDINAL occasion that the adverse effects of overcrowding have resulted in inhuman and degrading conditions of detention ... ”

“ CARDINAL . The phenomenon of prison overcrowding continues to blight penitentiary systems across LOC and seriously undermines attempts to improve conditions of detention . The negative effects of prison overcrowding have already been highlighted in previous ORG ...

In a number of countries visited by the ORG , particularly in central and eastern LOC , inmate accommodation often consists of large capacity dormitories which contain all or most of the facilities used by prisoners on a DATE basis , such as sleeping and living areas as well as sanitary facilities . The ORG has objections to the very principle of such accommodation arrangements in closed prisons and those objections are reinforced when , as is frequently the case , the dormitories in question are found to hold prisoners under extremely cramped and insalubrious conditions ... Large - capacity dormitories inevitably imply a lack of privacy for prisoners in their everyday lives ... All these problems are exacerbated when the numbers held go beyond a reasonable occupancy level ; further , in such a situation the excessive burden on communal facilities such as washbasins or lavatories and the insufficient ventilation for so many persons will often lead to deplorable conditions .

The ORG frequently encounters devices , such as metal shutters , slats , or plates fitted to cell windows , which deprive prisoners of access to natural light and prevent fresh air from entering the accommodation . They are a particularly common feature of establishments holding pre - trial prisoners . The ORG fully accepts that specific security measures designed to prevent the risk of collusion and/or criminal activities may well be required in respect of certain prisoners ... [ E]ven when such measures are required , they should never involve depriving the prisoners concerned of natural light and fresh air . The latter are basic elements of life which every prisoner is entitled to enjoy ... ”


CASE OF McGLINCHEY AND OTHERS v. THE UNITED KINGDOM

Violation of Art. 3;Violation of Art. 13;Non-pecuniary damage - financial award

The applicants PERSON and PERSON , born in DATE and DATE respectively , are the children of PERSON ( born in DATE ) . The applicant PERSON , born in DATE , is the mother of PERSON .

On DATE , PERSON died in ORG , GPE , GPE , whilst in the care of ORG GPE government as a convicted prisoner .

PERSON had a long history of intravenous heroin addiction and was asthmatic , for which she had been admitted to hospital on CARDINAL occasions during DATE .

It is purported that PERSON had , prior to being imprisoned , told her mother , who now cares for her children PERSON and PERSON , that she wanted rehabilitation assistance to rid herself of the heroin addiction . She told her solicitor that she had tried to refer herself for help but that it was impossible to obtain appointments without inordinate delays .

After having been convicted of theft , PERSON was sentenced at ORG , on DATE , to CARDINAL months’ imprisonment , despite an alternative proposal for a probation order with a condition that she be treated for her addiction . Thereafter , she was detained at FAC , GPE . She stated to her solicitor that she intended to use the period in custody as an opportunity to rid herself of her addiction to heroin .

At the health screening on her arrival at the prison on DATE , PERSON was noted as not seeming excessively withdrawn , depressed or anxious . She weighed QUANTITY . She complained of swelling to her left arm , withdrawal symptoms from her addiction and suffering from severe asthma especially when withdrawing , and was kept in the health - care centre pending an examination by a doctor . TIME , PERSON telephoned her mother complaining of her infected arm and asthma . During TIME , when she was observed to be wheezing , she was given an inhaler . She was also given paracetamol .

The prison medical records showed thereafter that she was complaining of withdrawal symptoms and that she was vomiting frequently . The records consisted of the continuous medical record , prescription and administration charts and the nursing assessment notes . Her blood pressure , temperature and pulse were checked DATE .

On DATE PERSON was examined by PERSON , the prison senior medical officer , who prescribed antibiotics for her arm , inhalers for her asthma and medication , ORG , to appease the symptoms of heroin withdrawal . The nursing notes stated that she threw a cup of tea across the cell , was “ locked in for education ” and that during the night she was very loud and demanding . ORG was not administered at TIME . The applicants alleged that this was a punishment , while the Government submitted that it was on the instructions of the doctor due to a drop in PERSON blood pressure . The entries in the nursing notes show that PERSON was seen by a medical officer that TIME and the drugs record sheet , signed by PERSON , indicates that after a blood pressure reading of CARDINAL/CARDINAL the next dose of ORG was omitted at TIME .

On DATE the record noted that she remained demanding . She had been told to clean her cell prior to education , which was a reference to the routine tidying - up of the cell and in accordance with normal practice . It was noted that she refused to comply . She was locked in during the education period and declined every meal . In the evening her weight was recorded as QUANTITY . It was noted that she had vomited during TIME and had complained of vomiting during TIME . She was encouraged to take fluids and given CARDINAL doses of a mild anti - nausea drug ( magnesium trisilicate ) by the nursing staff .

Her situation was reviewed by PERSON on DATE . As stated later in a statement to the coroner dated DATE , her medical readings ( temperature , pulse and blood pressure ) remained satisfactory . She did not appear dehydrated – it was noted that her tongue was moist and clean – but as she was still complaining of vomiting she was given an injection of anti - emetic medication . She complained of diarrhoea and stomach cramps to the nurse on duty during the night . A dose of magnesium trisilicate was given for nausea but it was recorded that this had little effect .

On DATE PERSON called her mother in tears , complaining that despite having been given an injection , she could not stop vomiting and was getting no other medical support to assist her to come off drugs . She said that she was having to clean up her own vomit and thought she was going to die . The Government stated that there was a lavatory in her cell which she would have been able to reach and that the practice was for nursing staff to clean up if vomit landed on the floor or any other area . The only member of staff involved in the care of PERSON who remains with ORG and who is head of nursing care at the prison has informed the Government that a prisoner would not have been asked to clean up her own vomit and she has no recollection of PERSON being asked to do so .

On DATE she was recorded as keeping down a cup of tea and a glass of juice but was vomiting again during the afternoon and evening . At TIME she was found smoking in bed and when asked what the matter was , she replied “ nothing ” . DATE , she was found to be “ opiate positive ” .

The doctor examined her on DATE . She was given a further injection of medication to help with her symptoms . He found her general condition to be stable . In his statement of CARDINAL DATE he noted that , following the injection , she was able to keep down oral fluids during DATE , although she vomited again in the evening . The Government stated that the doctor checked her for signs of dehydration but did not find any . This was confirmed by PERSON evidence to the coroner . The notes stated that her tongue was moist and clean . In the case of a person who was severely dehydrated , he would have expected the person to be physically very weak and possibly bedridden , to have a fast pulse rate and low blood pressure and , on examination , the eyes would appear sunken , the tongue dry and cracked , the lips drawn and the skin drawn and thin .

On DATE she continued to vomit and suffered from diarrhoea and abdominal discomfort . Her weight was recorded as QUANTITY . She ate nothing . The nursing notes recorded that she had had a better night . There was a reference : “ Continues to vomit on occasions ? hand down throat . ” The medical record stated that she had been observed with fingers down throat and vomit on her hand .

On DATE according to the nursing entries , there was no vomiting complained of or witnessed apart from twice at DATE . It was also recorded that she ate a small dinner and slept for long periods that night . There were no entries in the medical record on DATE . The doctor stated in his statement of DATE that on CARDINAL and DATE her temperature , pulse and blood pressure all remained within normal limits . Oral doses of anti - emetic drugs ( metoclopromide ) were prescribed to follow the injections , and administered on CARDINAL occasions DATE . In her evidence to the coroner , the head of nursing care stated that the drugs were not given on DATE as PERSON had stopped vomiting .

NORP However , at TIME on DATE , the following was noted in the continuous medical record :

“ ... went to see inmate in cell , as she got out of bed she collapsed against me vomiting ( coffee ground ) . Laid on floor in recovery position and summoned help . Patient appeared unresponsive and appeared to be having a fit . Ambulance called ( CARDINAL ) . Regained consciousness , still vomiting , CARDINAL nurses helped her onto bed . Oxygen in situ . ECG taken . Unable to obtain pulse or ORG . Unable to gain PERSON access due to abscesses on arms and previous drug use . Next of kin rung at TIME at FAC request , unavailable , son to pass on message within TIME . Taken to hospital by ambulance . Ambulance arrived at TIME and left at TIME for ORG , GPE . ”

Lots of “ coffee - ground ” vomit ( altered blood in the stomach ) was recorded as being found on her bed . ORG medical records showed that she was admitted at TIME Her mother was informed around that time that PERSON was in hospital and that she was ill but had stabilised . She was recorded as being

“ ... drowsy but movable and responsive . Staff nurse informed me that the white cell count was raised , with abnormal kidney and liver function ... possible diagnosis of ... drug abuse ” .

Her mother later learned from the nursing staff that on admission PERSON hair was matted with vomit .

On DATE at TIME , the following entry was recorded :

“ Transferred to Ward CARDINAL ; Ward CARDINAL contacted in the middle of an emergency with her , arrested , but has been resuscitated ( sic ) and now is having a blood transfusion and an airway [ made ] ... ”

At TIME :

“ ... Ward CARDINAL contacted to ask if relatives have been informed of deterioration , they are with her now , they are going to reassess her in TIME and if no improvement turn off the ventilator . ”

The hospital informed the family that PERSON was in a critical condition and might have suffered brain damage due to the cardiac arrest . Her liver and kidneys were failing and they could not stabilise her . She was ventilated by hand as there were no beds in ORG ( ICU ) . The doctors said that they would stop the medication to see if she came round and breathed on her own and , if not , they would leave her . A NORP priest was called . The family was advised to say goodbye to PERSON and did . She then recovered a little and at TIME she was moved to FAC where there was an ICU bed available . She was stable on the ICU ward although she was kept on life support and was heavily sedated .

On DATE at TIME , PERSON condition was recorded as stable but critical . At TIME she was given a very poor prognosis . By TIME on DATE , her condition had improved a little . She remained on a ventilator , although sedation had then been stopped . She made jerking movements at times and appeared to be waking up slowly . On TIME DATE , she opened her eyes and responded to light , although the brain scan did not reveal any activity .

On DATE PERSON was transferred to ORG to ORG and from there to Ward CARDINAL . It was recorded on DATE that although her eyes were open , she remained unresponsive and in a critical condition . On DATE her mother visited with the children . Her eyes were open but she appeared dark yellow in colour and making jerky movements associated with brain damage .

On DATE the hospital advised the family to go to the hospital immediately . The prison medical record stated that PERSON died at TIME

The autopsy report , following the post - mortem examination of CARDINAL January DATE , noted that PERSON weighed QUANTITY . It stated that although one symptom of heroin withdrawal can be vomiting , the cause of the applicant ’s vomiting was never fully established . Episodes of severe vomiting could have caused a tear in the upper gastro - intestinal tract ( “ a PERSON tear ” ) though this would most likely have healed by the time she died . This was the most likely cause of haemorrhaging in the stomach which could result in coffee - ground vomiting . If she had lost a substantial amount of blood , rendering her anaemic , this could have triggered the cardiac arrest . The cardiac arrest precipitated hypoxic brain damage and multi - organ failure with an inevitably fatal outcome .

In a letter dated DATE , the coroner informed the family that an inquest would be held before a jury . At the inquest , which took place on DATE , evidence was given by PERSON , the prison doctor , PERSON , the head of nursing care at the prison , the forensic pathologist who carried out the post mortem , CARDINAL consultants from the PERSON and ORG who had been involved in treating PERSON and the third applicant , PERSON mother . The latter was represented during the proceedings by a solicitor who put questions to the witnesses on her behalf .

During the evidence it emerged that the scales used to weigh PERSON in prison were inaccurate and incompatible , those used on reception being QUANTITY out compared with those used subsequently in the health - care centre . Due to this discrepancy , PERSON explained that he placed greater importance on his clinical impressions of PERSON regarding any effect of possible weight loss , but was aware of the potential problem and had given instructions for her weight to be monitored . Notwithstanding that antibiotics had been prescribed for her septic arm , it was also indicated that these had not been given to her over DATE out of QUANTITY doses that she should have received over DATE , she received CARDINAL . The head of nursing care , PERSON , was unable to explain the omissions although she suggested that the nurse could have forgotten to sign the medicine card .

Both PERSON and PERSON gave evidence that PERSON did not give a clinical impression of being very ill during this period , stating that she was up and about and associating with others . PERSON stated that her symptoms had been diminishing and that given her blood pressure , temperature , pulse and her general condition , he had no concern that she was gravely ill or that there was any need to admit her to an outside hospital . It was revealed that PERSON did not work in the prison on DATE and was not present therefore on DATE before PERSON collapse . A part - time doctor attended on DATE TIME and the prison depended on calling a doctor on agency if required . This explained the lack of any record in the notes for DATE . Sister N. explained that the entry in the nursing notes on DATE which stated that PERSON had been “ locked in for education ” referred to the routine procedure whereby those prisoners not participating in the education class were detained in their cells during that period .

Evidence was also given by the CARDINAL consultants who treated PERSON in hospital , concerning her state on arrival and her subsequent deterioration . They were unable to say with any certainty what had caused her collapse or the bleeding in her stomach . PERSON considered that she was dehydrated on arrival at hospital but , due to her disturbed state , he was unable to put in a central line which would have allowed an accurate analysis to be made . Under questioning , he stated that the signs consistent with dehydration could also have been caused by fresh bleeding but not by one episode of coffee - ground vomiting .

In his summing - up to the jury , the coroner summarised the evidence as follows :

“ ... for DATE PERSON was admitted in ORG ... she was then seen by the doctor , [ Dr PERSON ] , on DATE , on DATE . He examined her and made a note . She was still retained in ORG but as DATE proceeded , PERSON started to become unwell . You have heard evidence of the fact that she was a heroin abuser and it was known that if she was to withdraw from heroin she might develop some unpleasant symptoms ... those symptoms might manifest themselves for example with diarrhoea and vomiting , possible stomach cramps , depleted sleep patterns and the like and in fact the information that PERSON gave to her mother when she first rang rather gave you the impression that she knew that possibly she was to have a rough road ahead but she was prepared to put up with that .

Certainly throughout DATE ... it is well - documented that PERSON was vomiting profusely . Although she was given medication for that on occasions it only worked for a very short time and it is fair to say that from DATE she was vomiting at some stage DATE . There was also reference to the fact that she had diarrhoea and she was generally unwell .

Her nutritional state may well have been not all that it should have been and although drinks were available for her there was no means of monitoring how much liquid she was taking in . It was not possible to monitor whether she was actually drinking and vomiting it back or not drinking at all . There was no attempt at measuring fluid during the course of DATE and her vomiting actually progressed and on some occasions it was described as a lot of vomiting . It was referred to in the notes “ vomiting + + + ” which means rather a lot and although she was seen by nursing staff DATE and by the doctor on other occasions the medical staff at FAC were under the impression all along that PERSON was showing no signs of being dehydrated . In other words , she was not being depleted of fluids and [ Dr PERSON ] explained in his evidence his findings and the fact that he could see no real evidence that she was dehydrated at the time and felt that even with hindsight there was no necessity for her to be admitted into hospital .

DATE after her admission to [ prison ] on TIME when she woke up ... she virtually collapsed in the presence of nursing staff and she vomited a large amount of ... coffee ground vomit ...

There was some discussion during the evidence ... as to whether PERSON had actually had a cardiac arrest at that time . In fact all the doctors who subsequently examined her ... felt that that was not likely to have been the case , although there was certainly a collapse and although she may well have lost a fair amount of blood as a consequence of that . There was no evidence at that particular time that she had experienced a cardiac arrest .

She was taken by ambulance to ORG ... where she was immediately placed under the care of PERSON ... His working diagnosis at the time was that PERSON may well have some degree of liver failure and that there could also be some ... bleeding from the upper gastro - intestinal tract , the oesophagus ... because of the fact that she had vomited the coffee ground vomit .

The evidence of Dr PERSON , the Pathologist ... found some residual material in PERSON ’s stomach which could well have resembled blood or changed blood but ... was at pains to explain that she could find no source of any bleeding within PERSON ’s internal organs ... CARDINAL possible likely cause of the bleed that had produced itself in the coffee ground vomiting was that the retching which she had sustained ... might have caused a small tear either in her oesophagus at the point where it reaches the stomach or alternatively in the lining of the stomach itself ... that is a medical condition known as a PERSON tear but she could not find evidence of that . Her view was that possibly that small tear might well have healed by the time that she saw PERSON ’s body which was obviously by then DATE . That is the only explanation as to why there was any bleeding ... The significance of that bleed is appropriate because it is highly likely that as a consequence ... PERSON will have lost some volume of blood which will have meant that her heart might have had to work harder in order to overcome that and certainly when she was at ORG she was extremely unwell .

PERSON was of the view that he felt that PERSON was in fact dehydrated but he could not prove that specifically because you will recall from PERSON evidence that it was not possible for him to insert a central line . Had he been able to do that then it might have been that could have been used as a diagnostic tool ... certainly PERSON was of the opinion that there would seem to be some suggestion that PERSON was dehydrated , notwithstanding , according to the medical staff at FAC , they felt that that was not the case as DATE had gone on .

On TIME DATE ... unfortunately PERSON experienced a cardiac arrest and it was felt that as a consequence of that she had become deprived of oxygen and ... there would have been a deprivation of oxygen to her brain which would have caused her to sustain what was called hypoxic brain damage .

... The post - mortem evidence ... explained the cause of death and PERSON was able to confirm that the cause of death was hypoxic brain damage , deprivation of oxygen to the brain , caused by a cardiac arrest which PERSON felt was as a consequence of an upper gastro - intestinal haemorrhage of an undetermined cause ... ”

The coroner invited the jury to return a verdict of death through natural causes or an open verdict . The jury unanimously returned an open verdict .

Legal aid was granted to the CARDINAL applicants to pursue domestic remedies for compensation . Their solicitors sent a notice of issue , under cover of a letter dated DATE , to the ORG Solicitor requesting disclosure of medical and prison records in view of a claim for damages with respect to the death of PERSON .

In a report dated DATE , the doctor consulted by the applicants stated , inter alia , as follows :

“ It is my understanding that repeated vomiting can be a symptom of heroin withdrawal and while I have no personal experience in managing people undergoing a detoxification programme , I would , however , be very unhappy about managing anyone who was vomiting repeatedly , without the use of intravenous fluids , the intravenous administration of anti - emetic drugs and the facility to monitor blood chemistry frequently .

... PERSON was severely under weight .

Her poor overall nutritional state was almost certainly longstanding and probably connected to her heroin addiction but any prolonged bout of vomiting , from whatever cause , was likely to cause a serious imbalance of her blood chemistry very quickly . Apart from electrolyte disturbance and dehydration , she would be very likely to have had difficulty maintaining an adequate blood sugar level , as she would have had no reserves in the form of stored carbohydrate substances within the body , that could have been utilised , when she was unable to absorb adequate nutrients from her gastrointestinal system due to her persistent vomiting .

In such circumstances a vicious circle can occur . A low blood sugar level itself can cause more nausea and vomiting . Multiple metabolic pathways can be interfered with . The subject can become irritable . The level of consciousness may be severely reduced and coma can even occur .

Intravenous access is often very difficult in intravenous drug abusers , even for clinicians such as anaesthetists who routinely insert needles . Central lines are likely to be needed . These are special long catheters , often with CARDINAL lumen , that are inserted into major blood vessels close to the heart . I would not expect the average prison medical officer to be proficient in inserting such a line .

It is preferable for these lines to be inserted in hospital , by personnel with the necessary skills . After insertion , the correct positioning ... needs to be checked by ORG before it is used to administer drugs and fluids . Once inserted their maintenance requires skilled , aseptic nursing care ...

I would be inclined to attribute the agitation and apparent lack of cooperation displayed by PERSON after her admission ... and before her second collapse to cerebral irritation . Cerebral irritation is often seen following a period of cerebral hypoxia . Certainly , a degree of cerebral hypoxia probably occurred at the time of her collapse [ in prison ] and continued up to the time that resuscitation was underway at PERSON ...

The bleeding that occurred , following a period of persistent and violent vomiting , could certainly have been caused by a PERSON tear as suggested ... in the autopsy report .

If PERSON had been admitted to hospital earlier , it might still have proved difficult to control the vomiting and , in view of her poor general and nutritional state , if the cause of her bleeding was a PERSON tear , this might still have occurred , but she would not have had such a degree of dehydration and/or biochemical disturbance , and the consequences of such an occurrence would probably have been less serious .

Alternatively , if her vomiting had been brought under control at an earlier stage , the subsequent sad sequence of events might have been prevented . ”

In his opinion of DATE , counsel advised the applicants in the light of this medical report that there was insufficient evidence to establish the necessary causal link between PERSON death and the allegedly negligent care afforded to her in custody . They did not pursue their claims in negligence .

A person who suffers injury , physical or psychiatric , in consequence of the negligence of another may bring an action for damages for that injury . An exacerbation of an existing condition constitutes such injury . Upset and injury to feelings resulting from negligence in the absence of physical or psychiatric damage or exacerbation , do not entitle a plaintiff to damages . Any personal injury action maintainable by a living person survives for the benefit of his estate and may be pursued after his death .

Claims arising from the death of an individual caused by negligence are brought under LAW DATE or LAW ( LAW DATE . The former enables those who were financially dependent upon the deceased to recover damages for the loss of dependency . The scheme of the CARDINAL Act is compensatory and save for the sum of MONEY for bereavement to the spouse of a deceased or parent of a deceased child under CARDINAL at the time of death , damages are awarded to reflect the loss of support . The latter enables damages to be recovered on behalf of the deceased ’s estate and may include any right of action vested in the deceased at the time of his death together with funeral expenses .


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

András Sajó;Nebojša Vučinić;Peer Lorenzen

The applicant was born in DATE and lives in GPE .

In DATE the applicant lodged an action in damages against the owner of a flat in which he lived with his family . He also sought the protection of possession with respect to the flat . The respondent lodged a counter - claim seeking the payment of usage fees for the flat .

After having held several hearings and obtained the opinions of experts , on DATE ORG delivered its judgment , finding that the respondent was liable for the damages sought . It partly upheld the counter - claim of the respondent and ordered the applicant to pay usage fees for the flat .

On DATE ORG , sitting as a second - instance court , increased the amount to be paid to the applicant .

On DATE , ORG , acting as a review instance , decreased the amount to be paid to the applicant and increased the amount of usage fees to be paid to the respondent .