The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in LANGUAGE . He is represented before the Court by PERSON , a lawyer practising in GPE . He lodged the application also on behalf of his CARDINAL children PERSON ( J .- M. ) and Peer PERSON ( P. ) .

The applicant and PERSON ( born in DATE ) married in DATE . Their son PERSON was born on CARDINAL DATE . The applicant further adopted PERSON son PERSON who was born on DATE . Since the spouses’ separation in DATE , both children live with PERSON

On DATE the Winsen ( Luhe ) ORG held a hearing in which the applicant and his wife reached an agreement on the applicant ’s access to his children . According to that agreement , the applicant was entitled to personal contacts with his children , then aged CARDINAL and CARDINAL respectively , every DATE after school until TIME , every second DATE from DATE , during all school holidays CARDINAL of their duration and on DATE , GPE and GPE on the second public holiday .

On CARDINAL DATE ORG ( Luhe ) ORG , after having heard the parties and PERSON , restricted the applicant ’s right of access to DATE from DATE and to DATE of all school holidays , with the exception of DATE , in which he was granted access in DATE .

In DATE , following the exercise of his right of access , the applicant refused to bring the children back to their mother and travelled around with them in GPE without informing her of their whereabouts .

On DATE the PERSON ( NORP ) ORG granted PERSON sole custody of PERSON and P. and ordered the applicant to render the children to FAC

In DATE the applicant returned the children to their mother .

On DATE the applicant lodged a motion with the PERSON ( NORP ) ORG to amend its decision dated CARDINAL DATE and to broaden his right of access to his children . In particular , he applied to be granted access not only every second week - end and during CARDINAL of all school holidays , but also every DATE after ( nursery ) school , during part of the public holidays , further public holidays possibly fixed by law in the future and his children ’s birthdays once in DATE .

On DATE ORG submitted its report after having heard the applicant and PERSON on the question of access . Its representative , a social pedagogue , summarized the spouses’ diverging views on an extension of the applicant ’s right of access . She took the view that it was up to ORG to decide on this issue , as mediation by ORG between the spouses had no prospects of success . The representative further stated that she did not hear the spouses’ children ( then aged DATE ) as they were to be questioned in court soon and she wished to spare them another hearing within a short period of time .

On DATE the PERSON ( NORP ) ORG held a hearing in which it questioned the spouses and their children in person . Both PERSON and PERSON stated that they wished to visit their father also during DATE from time to time . P. said that he also wanted to celebrate his birthday at his father ’s place , but that his mother had told him not to express this wish at the hearing .

On DATE the PERSON ( NORP ) ORG supplemented its decision dated CARDINAL DATE . Relying on section DATE of LAW it ordered that the applicant ’s right of access during DATE of DATE began at TIME on DATE and ended at TIME on DATE of access . Apart from that completion , it dismissed the applicant ’s motion to amend its decision dated CARDINAL DATE .

Having regard to ORG written report dated DATE , ORG found that granting the applicant access to his children more often than fixed in its decision of CARDINAL DATE was not in the children ’s best interests .

As to the applicant ’s motion to be granted access also on DATE and on DATE ORG observed that PERSON had sole custody of the children who resided with her . They needed to be stabilized in the central place of their life and residence and should not be torn between their parents . For the same reasons , it was not in the children ’s best interests to broaden the applicant ’s right to personal contacts during DATE . In view of the serious tensions between the spouses it had , however , been necessary to fix exact times for DATE of the applicant ’s right of access .

As to the applicant ’s motion to be granted access to his children also on their birthdays , ORG took the view that it was in the children ’s best interests to pass their birthdays with the parent having custody , where they could celebrate with friends and possibly relatives in adequate surroundings . Moreover , as it was more likely that the legislator suppressed public holidays instead of creating new ones , it was unnecessary to grant a right of access for DATE possibly fixed in the future .

ORG took the view that the applicant ’s request for further contacts was directed at circumventing Mrs W .- L. ’s sole custody of their children . Given that in DATE the applicant had failed to return the children to their mother following the exercise of his right of access and had been travelling around with them for DATE without informing her of their whereabouts , this was unacceptable .

On DATE the applicant lodged an appeal against ORG decision . In his reasoning dated DATE he complained in particular that ORG had failed to take into account the specific circumstances of his case , in particular the fact that his sons wanted to see him more often , had refused to obtain an expert report and had failed to appoint a curator ad litem . Referring to the standards established in the ORG ’s judgment of CARDINAL July CARDINAL in the case of PERSON v. GPE , he further took the view that his children and a psychological expert should be heard in the appeal proceedings .

On DATE ORG filed a written report . Without having heard the spouses again and without having heard their children , its representative took the view that the wishes expressed by children of the age of PERSON and P. were not decisive for the extent of access which was in their best interests . Otherwise , parents conscientiously or unconscientiously would tend to influence their children according to their own wishes . There was no danger of alienation between the appellant and his children if the present regulation on access was complied with . It was essential for the children to know where their main place of life and residence was after the appellant had travelled around with them in GPE for DATE , without informing their mother of their whereabouts .

On DATE ORG , without holding a hearing , dismissed the applicant ’s appeal as ill - founded . In the court ’s view , the extent of personal contacts as ordered by ORG in its decision dated CARDINAL DATE were sufficient to cultivate and develop the relationship between the appellant and his children . According to the court ’s own experience , it was in the best interests of children aged DATE like PERSON and P. to have CARDINAL main place of residence where they passed their everyday life and met friends . The children lived with their mother . Even though his children enjoyed visiting him , broadening the appellant ’s access to them would de facto make them reside at CARDINAL places . In view of the very serious tensions between the parties , this would unsettle them and make them feel not to know where they belong .

For the same reasons , ORG confirmed that the appellant ’s contacts with his children during the holidays and on further public holidays should not be broadened .

ORG further agreed with ORG that the appellant should not be granted access to his children on their birthdays . It was in the children ’s best interests to pass their birthdays at their home in order to be able to celebrate with children living in their neighbourhood . It endorsed the reasons given by ORG in respect of the appellant ’s further motions .

In ORG view , it had not been necessary to appoint the children a curator ad litem in the present proceedings in order to represent them and to protect their interests . In particular , given the children ’s age , it was not yet their subjective wish to broaden their contacts with their father , but their objective best interests not to disturb their prosperous development which was decisive .

On DATE the applicant lodged a constitutional complaint with ORG . He complained that the family courts had dismissed his motion to be granted more personal contacts with his children without consulting an expert , without appointing a curator ad litem and without hearing the parents and the children in the appeal proceedings . He argued that thereby , his parental rights and his rights to equality and to be heard as guaranteed by LAW and by Articles CARDINAL and CARDINAL of the ORG had been violated .

On DATE a panel of CARDINAL judges of ORG refused to admit the applicant ’s constitutional complaint . It referred to sections CARDINAL a and b of ORG allowing the panel not to accept complaints for adjudication which are not of fundamental constitutional significance and the acceptance of which is not necessary to enforce a complainant ’s rights under LAW . In accordance with section CARDINAL d § CARDINAL , third sentence , of the said LAW , the court did not give reasons for its decision .


CASE OF MEHMET ŞENTÜRK AND BEKİR ŞENTÜRK v. TURKEY

Violation of Article 2 - Right to life (Article 2 - Positive obligations;Article 2-1 - Life) (Substantive aspect);Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);Pecuniary damage - claim dismissed;Non-pecuniary damage - award

András Sajó;Guido Raimondi;Helen Keller;Nebojša Vučinić;Peer Lorenzen

I. THE CIRCUMSTANCES OF THE CASE

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

NORP The circumstances surrounding the death of PERSON

On DATE , at TIME , PERSON , wife of PERSON ( “ the first applicant ” ) and mother of PERSON , who was then DATE pregnant , went to ORG with her husband because she was experiencing pain . She was examined by a midwife , ORG , who decided that PERSON was not yet at the end of her term and that there was no point calling a duty doctor to examine her .

The first applicant then drove his wife to ORG Nevval FAC ( “ ORG ” ) , where they arrived CARDINAL a.m. PERSON was examined by a midwife , GPE , who , noting that the applicant ’s wife was not yet at the end of her term and that there were no complications , did not call the duty gynaecologist for an examination .

In view of his wife ’s continued pain , the first applicant drove her to ORG , where they arrived at QUANTITY PERSON was examined by PERSON , an assistant doctor in the emergency department , then transferred to the urology department , where she was examined by PERSON , a urologist . He diagnosed renal colic , prescribed medication , decided to administer an analgesic and advised her to come back for a consultation after she had given birth .

As his wife ’s pain did not lessen on returning home , the first applicant drove her that TIME to ORG . There , she was initially examined by ORG , an emergency doctor , then transferred to the gynaecology and obstetrics department , where she was placed in the care of a team of doctors . After conducting an ultrasound scan , they established that the child she was carrying had died and that immediate surgery was necessary to remove the child . She was then informed that hospitalisation and surgery had to be paid for , and that a deposit of CARDINAL or MONEY was to be paid into the hospital ’s operating fund . As the first applicant stated that he did not have the requested sum , his wife could not be hospitalised .

The emergency doctor , ORG , arranged for the first applicant ’s wife to be transferred to the GPE ( ORG and ORG in a private ambulance in which no medical staff were present .

PERSON died at TIME while being transferred by ambulance .

B. The investigation by ORG

DATE and DATE , the investigation committee at ORG conducted an investigation into the circumstances of PERSON death , in the course of which the following persons were questioned : the first applicant , the individuals who had accompanied PERSON to the hospitals , the members of the medical teams ( midwives and doctors ) in the various hospitals to which the deceased woman had been taken , and the ambulance driver who had driven her to the GPE ( ORG and ORG .

On DATE statements were taken , inter alia , from CARDINAL midwives working at the LOC district medical centre where PERSON was monitored throughout her pregnancy . Their witness statements indicated that PERSON had gone to the centre on DATE for a check - up ; the child ’s heartbeat had not been heard , as a result of which the midwives advised her to go to a hospital as soon as possible for an ultrasound scan .

On DATE a statement was taken from ORG , the midwife at ORG who had examined PERSON . Evidence taken on that occasion indicates that she had heard the child ’s heartbeat and that the child was alive when she examined the mother . In this connection , she specified that she had listened to the child ’s heartbeat with a GPE foetal monitor , so that it would have been impossible to miss the sound , as this machine provided information on the number of heartbeats per minute . Having decided that PERSON condition was normal , she had not seen the point of carrying out an ultrasound or having her examined by the duty doctor .

On DATE a statement was taken from GPE , midwife at ORG , who stated that she had heard the child ’s heartbeat when examining the mother , that the child had been alive at that point and that , having found no complications , she had not requested the on - call duty gynaecologist .

On DATE statements were taken from ORG , GPE and PERSON , doctors in the gynaecology and obstetrics department at ORG , who stated that they had informed the first applicant of the need to remove the child by Caesarean section . They denied having told the patient or her husband that they had to pay CARDINAL or MONEY into the operating fund and said that they did not know who could have done so . They also claimed that they had explained the patient ’s situation to the duty specialist , GPE , who had not examined her but had seen her , and who had available to him all of the information on her case . Each of them also stated , in particular , that :

“ ... it was explained to the patient ’s husband that the baby was dead and that it was necessary to remove him or her by Caesarean section ... I never said to the patient that she had to pay MONEY into the operating fund for this surgery ... I do n’t know who said that ... The signature under the note [ stating that ] hospitalisation was not accepted is that of the patient PERSON ... I never said to the patient and her relative that if they did not pay into the operating fund ... we could not operate on her ... It was the patient herself who refused to be hospitalised , who said that she could not pay this sum and who signed the papers . Her husband took the patient away , saying that he could not accept this cost , that he refused hospitalisation and that he was going to take her to the PERSON maternity unit ... My colleagues and I , as a team , explained ... to the husband that it was absolutely essential to remove the baby and that he should not take the patient away , but we were unable to persuade him ... ”

In a statement taken on DATE , ORG , a gynaecology and obstetrics specialist at ORG , who had been the duty doctor on the TIME in question , said that he had been informed by ORG about the patient ’s situation and had recommended that she be admitted to hospital . He also claimed not to have spoken with the patient ’s husband , not to have instructed him to make a contribution to the operating fund , and to have been informed by the team which had examined the patient that hospitalisation had been recommended but refused by her husband .

On DATE a committee of medical experts issued a report with the following conclusions :

“ CARDINAL . Nurse G.E. examined PERSON and stated that her condition did not necessitate calling the duty doctor . Although this should have been done , the nurse did not feel the need to do so . In such a case , the principle is that patients are to be examined by a specialist doctor , since a nurse does not have a [ sufficient ] level of knowledge to assess the seriousness of the situation . The nurse should call the specialist for every patient [ who comes to the hospital ] .

NORP The midwife and nurse GPE did not have sufficient knowledge to make a diagnosis as to the patient ’s [ condition ] . She should have been examined by a specialist . In fact , for a correct diagnosis to be made , all patients who come to a polyclinic should be examined by a specialist .

The duty doctor in the emergency department , ORG , ought to have asked for a ORG [ ORG ve DATE gynaecology and obstetrics ] consultation . Only a doctor who examined the patient in this way would have been able to determine whether her symptoms at that time indicated a complication of pregnancy .

The duty urologist , GPE , examined the patient from a purely urological perspective . However ... he ought to have conducted a general examination and asked for a PERSON consultation . Only a doctor who examined the patient in this way would have been able to determine whether her symptoms at that time indicated a complication of pregnancy .

In the light of the patient ’s clinical symptoms , the specialist duty doctors at ORG ought to have insisted that she be hospitalised .

The presence of medical staff in the ambulance would have made no difference to the outcome .

In the light of the information available to date , the causes of death can not be truly determined . [ This will be possible ] in a definite manner after the autopsy , the results of which will enable the [ possible ] liabilities for negligence of the above - mentioned members of staff to be established with certitude ...

Causes of death : CARDINAL . Rupture of the uterus . CARDINAL . Embolism of the mesoderm . CARDINAL . Detached placenta . CARDINAL . Low probability of aggravated pre - eclampsia . ”

On DATE , in the light of this expert report and the statements given by the various parties involved , the head inspector of ORG drew up a report concluding that the midwives GPE and GPE , employed in ORG and ORG respectively , had failed in the duties attached to their functions , in that they had sent the patient home in spite of her continuing pain and without having had her examined by a duty doctor . He also considered that doctors ORG and GPE , employed at the Atatürk ORG , had failed in the duties attached to their functions , in that they had not requested a consultation with a gynaecology and obstetrics specialist , nor indicated to the patient that she should seek such a consultation . Furthermore , the investigation concluded that a complaint report had been drawn up concerning the issue of the liability of GPE , ORG and GPE , doctors in the gynaecology and obstetrics department at ORG , so that it was not necessary to rule again in their respect . The head inspector reached the same conclusion as to the liability of the impugned ambulance company , and a separate report had been transmitted on this matter to ORG .

The investigation report noted , however , that doctors ORG , ORG , and PERSON had failed in their obligations and thus caused , by their negligence , imprudence and lack of experience , the death of PERSON . Finally , the committee considered that Dr S.A.A. from ORG had committed no error in transferring PERSON to the gynaecology and obstetrics department .

The report on the findings of the investigation into the events which occurred at ORG include the following points :

“ After her examination in the emergency department ... , PERSON was transferred to the obstetrics department ... PERSON , who was DATE pregnant , was examined by the duty team at the obstetrics department . During the ultrasound carried out by the duty team ... , the child ’s heartbeat was not heard and it was ascertained that he or she was dead ... The patient ’s relatives [ were informed ] that it was necessary to remove the child , for the sake of the mother ’s health ... However , as the patient ’s relatives had stated that they did not have the resources to pay hospital fees ... the duty team did not admit the patient to hospital and transferred her to the GPE gynaecology and obstetrics hospital in this condition , after obtaining her signature attesting that she was refusing hospitalisation ... Although by law they ought to have dealt with the procedures concerning costs [ only ] after admitting the patient to hospital , examining her , reaching a diagnosis and providing care [ to the patient ] , it is understood that the doctors failed in their duty by transferring her without treatment , [ although she ] was in an emergency situation and suffering persistent pain , and thus caused her death . ”

Various witness statements were cited in this investigation report . In particular , some of them read as follows :

“ Statement by PERSON : ... on DATE , at TIME , I drove my wife ... , who was DATE pregnant , to the emergency department at ORG because of the violent pain she was feeling . Our neighbour GPE was with us ... My wife was examined at ORG ... they told me that they could not do anything , that the ultrasound machine was turned off ... [ and ] that it would be preferable that I drive [ her ] to ORG ... I drove my wife to the emergency department at ORG at TIME There , the people in charge of the emergency department ... told me that they were short of staff and that the ultrasound machine was turned off ... the staff on duty then told me to take [ her ] to another hospital . On hearing that , I took my wife to PERSON Teaching and ORG ... It was about midday when I accompanied her to the obstetrics department ... The doctor told me to take her to the urology department ... I took her to the urology department . They asked for urological examinations and a renal ORG test ... [ My wife ] waited TIME on a stretcher in the emergency department at ORG . Her pains had become even stronger . On seeing this , I went to see the head of the emergency department . I told him that my wife was feeling very unwell and I asked that she be examined by a doctor from the urology department ... the urologist examined her ... After examining her , he said : “ there is still time before the birth , at the moment there is nothing we can do , tell the emergency department to give her painkillers and take her home ” , and he issued a prescription ... I said to the doctor that my wife was DATE pregnant and asked him whether the medicines were harmful . He said that it was not necessary to take them all the time , but only if the pain got worse ... Painkillers were administered , but I do n’t know what type ... the pain did not go away ... I took [ my wife ] back home ... it was TIME when I took her home ... In the evening , at TIME , I saw that my wife ’s condition had worsened and , accompanied by ORG ... , I drove her to ORG ... The doctor who examined my wife ... told me that the baby had died ... I told him to save my wife ... The doctor told me that I had to pay MONEY into the operating fund to have the baby removed from the mother by surgery ... I replied that I did not have that amount at that time , but to operate [ on my wife ] and I would sign a paper [ undertaking ] to pay . The doctor told me that I had to pay the money ... I asked him to tell me what to do ... They then told me to take her immediately to the PERSON maternity hospital ... We called an ambulance ... I asked a woman who was present whether a nurse should accompany [ my wife ] . She replied “ they have n’t sent a nurse ” ... We started driving ... We arrived at ORG ... the duty staff told me that my wife was dead ... My wife was not cared for with diligence in the hospitals I took her to . If at least an ultrasound had been carried out at ORG , ORG or LOC , and had I been told that the child was dead , then , given that it was still daytime , I could have got the money together for the operation and saved my wife . I was not informed that my wife had been examined on DATE at the ORG medical clinic and that the child ’s heartbeat had not been heard ... A day or CARDINAL before DATE , she told me that she had twisted her ankle on the last CARDINAL steps of the staircase and had hit the banister ... but that she was not in pain and did not need to go to the doctor ...

Statement by ORG : ... we drove the patient to the emergency department at ORG ... One of the doctors told me that her condition was serious . He said to go and pay MONEY into the operating fund ... I do n’t know the name of that doctor . It was TIME at that stage . I had MONEY with me . I told the doctor that I had that amount , that I [ could ] pay it and [ could ] sign a paper for the remainder ... He said that this would not do , that he could not operate . I insisted that he operate . He refused again . I then asked what [ we ] should do ... He told us to take her to the PERSON maternity hospital . At the same time , he asked us , under duress , to sign a document certifying that we were taking the patient out of hospital of our own free will ...

Statement by PERSON ... We took PERSON to ORG at TIME They admitted us immediately to the emergency department . A woman doctor examined her ... she told us that the baby was dead ... The doctor told us that the baby had to be removed by emergency surgery ... The doctor said that we had to pay the hospital QUANTITY ] for the operation . The patient ’s husband said that he could not pay the entire amount immediately , that he could pay some of it but would sign a paper and pay later . The doctor said to talk to the cashier ’s desk [ vezne ] . The people at the cashier ’s desk told us that we had to pay the entire amount . We then spoke again with the doctor who had examined the patient . We told her that we had not been able to pay all of the money and asked her what we should do . She told us to take the patient immediately to the PERSON maternity hospital ...

Statement by S.A.A. : ... PERSON came to the emergency department on DATE , complaining about stomach pains ... I met the patient ... , [ and ] carried out an examination ... I sent her to the gynaecology and obstetrics department . TIME after being examined in the obstetrics department , the patient came back to the emergency department ... The patient ’s husband told me that the obstetrics doctors had informed him that the baby was dead ... and that she had to be hospitalised . I asked why they had not hospitalised her instead of taking her back to the emergency department . The patient ’s husband told me that they had been asked to pay fees ... and as he could not pay that amount he wanted to take his wife to the PERSON maternity hospital . At this point he was in a state of panic and emotional . I told him calmly that the baby had to be removed immediately from the mother ’s stomach , [ that he had ] to take her back and have the patient hospitalised immediately ... [ so that ] the child could be removed , otherwise the mother ’s life could be in danger ... In spite of what I said , the patient ’s husband wrote on the patient ’s examination form : “ In spite of the doctor ’s advice , we have refused hospitalisation ” and signed it . I exerted no pressure ... to have this statement written ... The patient ’s husband told me that the doctors in the [ gynaecology and obstetrics department ] had told him that he had to pay a deposit , if my memory serves me correctly , of MONEY ...

Statement by PERSON , driver from the private ambulance company : ... at TIME on DATE I collected the patient from the obstetrics department and drove her to the emergency department . There , I told the head nurse , ORG , to assign a nurse for the ambulance . She said that that was impossible . Later , I asked the doctor in the emergency department which was transferring the patient if I could have a nurse for the ambulance . But she too said that it was impossible , that the baby was dead in the mother ’s stomach and that I had to drive her immediately to ORG ... I put the patient in the ambulance ... The patient ’s husband got in beside her ... There was no nursing staff in the ambulance ... Before we put her in the ambulance , in front of the ORG emergency department ... , the patient told me not to take her away ... That must have been TIME When we arrived at PERSON ... I saw that the patient had died ... As I had explained [ to her ] ... , the reason that there was no nursing staff in our ambulance ... was because our duty nurse was occupied with the transfer of another patient ... The doctors and a nurse at the hospital told me that the patient had been dead on arrival . They told me that they had no morgue and that we ought to take her back to the ORG morgue ... ”

According to the statements as recorded , CARDINAL doctors from ORG , namely ORG , GPE and GPE , denied having told the applicant or the deceased woman that they would have to pay a sum of money in order for the surgical procedure in question to be carried out .

C. The criminal proceedings brought against the medical staff

NORP The proceedings against doctors GPE , ORG and GPE

On DATE the management of the ORG medical faculty opened an investigation in respect of the doctors GPE , ORG and GPE

On DATE it decided that there were no grounds for bringing proceedings against those doctors .

On DATE a committee of investigation , composed of doctors , issued a report concluding that the doctors in question had not committed any error and that , accordingly , there were no grounds for bringing proceedings against them .

On DATE , on the basis of LAW , provisions which concern the right to life , the first applicant lodged an objection against that decision . He alleged , inter alia , that the committee ought to have verified the legislation in force and ORG practice in cases requiring emergency hospitalisation where hospital fees could not be paid .

On DATE ORG set aside the conclusions contained in the investigation report . It noted that the committee had not examined which criteria had to be met in hospitals in order to begin treating a patient whose life was in danger and whose condition required urgent medical intervention . It also noted that the committee had not asked for the investigation to be widened to include Dr GPE , gynaecology and obstetrics specialist at ORG , who had been on duty on the night in question , in order to determine his responsibility with regard to the disputed events . It considered that those shortcomings should be addressed .

On DATE , considering that there had been neither negligence nor carelessness on the part of the doctors in question , the investigation committee adopted a new report , concluding that there was no case to answer . It specified that the case file did not make it possible to determine what should be done in medical emergencies requiring hospitalisation where the corresponding fees were not paid .

On DATE , relying on LAW , provisions concerning the right to life , the first applicant again lodged an objection against those conclusions . He alleged , in particular , that the fact of not including GPE in the investigation proceedings amounted to a failing in that investigation , and asked that Dr GPE be included in the proceedings .

On DATE ORG sent the case back to the ORG .

On DATE the investigation committee adopted a new report , which again concluded that there was no case to answer , in the absence of negligence or carelessness that was imputable to the doctors GPE , ORG , GPE and GPE

On DATE the first applicant submitted an appeal against those conclusions to ORG .

On DATE ORG upheld that appeal , considering that there was sufficient evidence that the accused doctors had committed the acts for which they were criticised . It based this finding on the report drawn up on DATE by ORG ( PERSON , see paragraph CARDINAL below ) , stating that the named doctors were CARDINAL liable for PERSON death . It therefore held that they should be subjected to criminal proceedings and transmitted the file to the prosecution service .

On DATE ORG noted that ORG had transmitted the case to it directly in the absence of an indictment from the prosecution service , and consequently decided to discontinue the proceedings brought against ORG , ORG , GPE and GPE , since the opening of proceedings was subject to the issue of an indictment .

On DATE the GPE public prosecutor issued an indictment against doctors GPE , ORG and PERSON , calling for their conviction for unintentional homicide ( LAW ) .

On DATE the first applicant applied to intervene in the proceedings , a request which ORG granted on DATE .

NORP The proceedings against the midwife ORG

By a decision of DATE , the LOC Governor authorised the opening of criminal proceedings against the midwife FAC for breach of her professional duties .

On DATE the PERSON public prosecutor indicted the defendant for breach of her professional duties ( LAW ) and called for her conviction .

On DATE ORG acquitted the defendant on the ground that another midwife had also been on duty on DATE of the events , and that it had not been established that it was the defendant who had examined the deceased and had sent her home without first calling for a specialist to examine her . The court added that , moreover , even supposing that the defendant was the midwife who had examined PERSON and sent her home , the breach in her duties had not been intentional , so that the constituent elements of the offence had not been made out .

This judgment became final on DATE .

On DATE , on the basis of the conclusions in the report by ORG finding that ORG was DATE liable for his wife ’s death ( see paragraph CARDINAL below ) , the first applicant asked that the criminal proceedings against that midwife be reopened .

On DATE the first applicant applied to join the proceedings against ORG as a civil party .

On DATE the Karşıyaka ORG granted the request for reopening of the proceedings and announced the joinder of this case and the proceedings pending before ORG ( see paragraphs CARDINAL et seq . below ) . It also decided to submit to ORG the dispute as to jurisdiction between those CARDINAL courts .

On DATE ORG decided to join the criminal proceedings in question and named ORG as the court with jurisdiction for examining the remainder of the proceedings .

NORP The criminal proceedings against FAC , ORG and GPE

On DATE the Governor of PERSON authorised the opening of proceedings against the midwife GPE and the doctors ORG and GPE

On DATE the GPE public prosecutor charged those individuals with breach of duty ( LAW ) and called for their conviction .

On DATE the first applicant asked to join the criminal proceedings before ORG as a civil party . The court granted that request at the close of a hearing on DATE .

On DATE the first applicant called for the ambit of the proceedings to be widened , asking in particular for a forensic examination to determine how much time had elapsed between the deaths of the child and of his wife .

On DATE ORG transferred the case file to ORG , for a decision by it on the GPE liability and its extent .

On DATE ORG ( PERSON ) adopted a decision , the relevant extracts of which read as follows :

“ After examining the case file , documents and evidence , the commission has concluded :

– that midwives GPE and GPE , who failed to evaluate correctly the situation after examining the patient and did not call the duty gynaecologist in spite of the patient ’s complaints , are CARDINAL liable ;

– that doctors ORG , who examined the patient solely from the perspective of their area of expertise , although she was DATE pregnant on arrival at the hospital , hypertensive and complaining of severe pain , and who failed to have her examined by an obstetrician , are CARDINAL liable ;

– that the duty doctors GPE , ORG and GPE , from ORG , are CARDINAL liable for the patient ’s death , by having had her transferred , without assistance , to the centre for persons insured with the social security system , on the ground that she had no money , although her condition was not compatible with such a transfer . ”

On DATE the court received the report by ORG and noted that the GPE liability had been established , but not to the extent of DATE .

On DATE the first applicant referred to the report by ORG , which had concluded that , in addition to the persons accused in the context of the ongoing proceedings , other doctors working in ORG had been found to be liable , and asked , in consequence , that indictments be issued in respect of those persons .

At the close of the hearing on DATE , ORG transferred the case file to the public prosecutor with a view to the adoption of a supplementary indictment against the defendants on the basis of LAW .

DATE . On DATE the GPE public prosecutor issued a supplementary indictment with a view to charging the defendants with unintentional homicide ( Article CARDINAL § CARDINAL of LAW ) , and called for their conviction in that respect .

On DATE the first applicant asked ORG to complete the proceedings as soon as possible . Relying on LAW , he emphasised that the length of the proceedings breached his right to a fair hearing within a reasonable time . He also stressed that their continued duration raised the risk of statutory limitation and infringement of his right of property , given that he might find himself deprived of any possibility of obtaining compensation for pecuniary and non - pecuniary damage .

On DATE ORG decided to join the proceedings before it to those being conducted against the doctors GPE , ORG and PERSON for unintentional homicide .

NORP The criminal proceedings subsequent to the joinder of the cases

On DATE the first applicant ’s lawyer , on behalf of the first applicant ’s under - age son , submitted a request to join the proceedings as a civil party . He also complained about the length of the proceedings , emphasising the risk that they would become time - barred . He further submitted a claim for compensation in respect of the damage caused to his client on account of his wife ’s death and claimed CARDINAL NORP lira ( TRY ) in respect of the non - pecuniary damage sustained by the first applicant and TRY CARDINAL for the non - pecuniary damage sustained by the latter ’s son , together with a claim for TRY CARDINAL , jointly , in respect of pecuniary damage .

At the close of the hearing of CARDINAL DATE ORG noted that the indictment contained no mention of PERSON , although the latter ’s name had appeared alongside those of the defendants in the proceedings before ORG . Consequently , it asked for clarification as to whether , after the decision terminating the proceedings ( see paragraph CARDINAL above ) , charges had been dropped against GPE or whether there had been an error . It added that , in the latter case , the omission ought to be rectified .

At the hearing of CARDINAL DATE , ORG noted that the prosecutor had replied that charges had not been dropped against PERSON and that there may have been an error . The court asked that measures be taken in this regard .

On DATE and DATE the applicant ’s lawyer lodged a memorial with the court , complaining about the length of the proceedings .

At the hearing of DATE , the court noted that the opening of proceedings against ORG had not been such as to influence the ongoing proceedings but could protract the case . Consequently , it decided not to wait for those proceedings to be opened .

On DATE the criminal court found GPE , GPE , ORG , GPE , GPE , GPE and GPE guilty of unintentional homicide and sentenced them to CARDINAL years’ imprisonment and a fine of TRY CARDINAL . In application of the provisions of LAW on the remission of sentences , it commuted GPE ’s sentence to a fine of TRY CARDINAL ; that of ORG to a fine of TRY CARDINAL ; and that of GPE , ORG and PERSON to a fine of TRY CARDINAL . In addition , all of the sentences were suspended . The court dismissed the request for conviction of defendant ORG , noting that , although the report by ORG had established that she was CARDINAL liable , that circumstance did not amount to a ground for reopening the criminal proceedings against her under LAW . In consequence , it upheld her acquittal as pronounced at the close of the first criminal proceedings .

The relevant part of the criminal court ’s reasoning reads as follows :

“ ... [ I]t emerges from the case file as a whole that : PERSON , who was DATE pregnant , was driven to ORG in GPE by her husband on DATE on account of severe pain ; – she was examined there by midwife ORG ... , the doctor was not informed , no measure was taken and , since labour had not begun , the patient was sent home ; DATE she was then driven to the emergency department at ORG , where she was examined by midwife GPE , and she was sent home because labour had not begun ; DATE towards TIME , she was taken to the emergency department at the Yeşilyurt Atatürk Hospital , where she was examined by doctor PERSON ; on account of pain on her left side she was sent to the urology department , where she was examined by doctor GPE who diagnosed renal colic , administered painkillers and sent her home ; DATE as the pain persisted after the patient ’s [ husband ] had taken her home , ... she was taken to ORG ; she was transferred by the emergency doctor ... to the maternity unit ; there , it was established that the patient was DATE pregnant but that the [ child ’s ] heartbeat could not be heard ; although the doctor advised that the baby be removed , hospitalisation was not accepted , in the absence of financial resources ; – the patient was then transferred to the GPE gynaecology and obstetrics hospital , but died during the journey ; DATE on account of this event [ and ] as was established by ORG , midwives GPE and GPE were DATE liable , doctors ORG were CARDINAL liable , doctors GPE , ORG and GPE were CARDINAL liable ; – in those circumstances , the defendants [ ought ] to be punished for the offences with which they are charged ... ”

On DATE the applicants lodged an appeal on points of law . In their pleadings they emphasised that the criminal court had not responded to the request , submitted on behalf of the applicant ’s son , to join the proceedings as a civil party , nor to the claim for compensation submitted by them . They also challenged ORG ’s acquittal , given that her liability in the death had been established , and the fact that the prison terms imposed on the defendants had been suspended and commuted to fines . Furthermore , relying on LAW , they alleged that there had been a breach of the right to life and that the ORG had failed in its positive obligations in this respect ; they considered that the fact that the first applicant and his wife had been obliged to go from CARDINAL hospital to another amounted to treatment contrary to LAW . Relying on Articles CARDINAL and CARDINAL , they complained about the length of the proceedings and the lack of any remedy to end the related damage . Finally , they submitted that the judgment had breached their right of property .

On DATE ORG at ORG submitted his observations and asked that court to uphold the first - instance judgment in so far as it concerned ORG , to set it aside in respect of the other defendants on the ground that the offence was time - barred , and to end the proceedings .

On DATE ORG upheld the first - instance judgment in so far as it concerned ORG It set aside the part of the judgment concerning the other defendants on the ground that the offence provided for in sections CARDINAL(CARDINAL ) and CARDINAL ) of PERSON no . CARDINAL had become time - barred . It thus terminated the proceedings on the ground that they were time - barred , in accordance with LAW .

Proceedings brought against ORG

On DATE the GPE public prosecutor dropped the charges against ORG noting , in particular , that in its report of CARDINAL and CARDINAL DATE the health committee had not identified responsibilities attributable to him , that there was insufficient evidence against him and that the events for which he was criticised were now time - barred .

The first applicant lodged an objection against that decision .

On DATE his objection was dismissed by ORG .


The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE . He was represented before the Court by PERSON , a lawyer practising in GPE . ORG ( “ the Government ” ) were represented by PERSON , Representative of GPE at ORG .

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

On DATE the applicant was arrested . On DATE he was charged with murder .

On DATE he appeared before ORG , where Judge PERSON ordered his detention pending trial .

On DATE ORG rejected the applicant ’s appeal and upheld the decision of DATE .

In DATE the applicant learned that by Decree no . CARDINAL of DATE , the President of GPE had appointed Judge PERSON to ORG . No further decree had been issued transferring him to ORG . The applicant immediately lodged a complaint to ORG challenging the lawfulness of the decision of DATE .

On DATE ORG replied that the impugned decision had been fully lawful .

The Government provided the ORG with a copy of a decree , issued on CARDINAL DATE by the President of ORG , according to which the duties of a temporarily absent judge of that court were to be performed by Judge PERSON with effect from CARDINAL DATE .

Article CARDINAL

“ CARDINAL . No one may be deprived of the right to have his or her case considered by the court and judge on which cognisance of the case is conferred by law . ”

Article CARDINAL

“ .. CARDINAL . Judges of ... the federal courts shall be appointed by the President of GPE according to the rules laid down by federal law ... ”

Section CARDINAL

“ ... In the event of the temporary absence of a judge of a district ( town ) court , his duties shall be performed by a judge of the nearest district ( town ) court by decision of the President of a higher court ... ”

In Decision no . CARDINAL-O - O of DATE , ORG held as follows : “ According to LAW ( part CARDINAL ) , no one may be deprived of the right to have his or her case considered by the court and judge on which cognisance of the case is conferred by law ...

The legislator , in exercising legal regulation in the judicial sphere in order to secure the right of citizens and associations to judicial protection within a reasonable time , has the power to determine the organisational and procedural arrangements for the district ( town ) courts , including the arrangements for replacing temporarily absent judges . The PERSON on organisation of the courts in the ORG provides that in the event of the temporary absence of a judge of a district ( town ) court , his duties shall be performed by a judge of the nearest district ( town ) court , the arrangements for his replacement being made by decision of the President of a higher court . Therefore , the impugned provision , being aimed at securing the smooth operation of justice in the event of the temporary absence of a judge , does not impair any constitutional right of the applicant in his specific case .

... The principles of independence and irremovability of judges guaranteed by LAW are not violated by LAW on organisation of the courts in the ORG , as the fact that the duties of a temporarily absent judge of a district ( town ) court are performed by a judge of the nearest district ( town ) court does not amount to the transfer of a judge to another position or another court . A judge preserves his powers , office , position and grade for the whole period of his activity within a judicial body ... ”


Violation of Art. 3;No violation of Art. 8;Non-pecuniary damage - financial award;Costs and expenses - claim dismissed

The applicant was born in DATE and is currently detained in GPE .

The applicant was detained on remand ( voorlopige hechtenis ) on DATE . The criminal proceedings against him , in which he stood accused of a number of offences including murder , manslaughter / grievous bodily harm , rape and narcotics offences , came to an end on DATE , when ORG ( PERSON ) confirmed the judgment of the ‘ s - ORG ( gerechtshof ) of DATE in which the applicant had been sentenced to DATE imprisonment . In imposing that sentence , ORG had taken into account the fact that the applicant had spent much of his pre - trial detention in maximum security . In addition , ORG had imposed a ORG order ( placement at the disposal of the Government – terbeschikkingstelling ) with confinement in a secure institution ( met bevel tot verpleging van overheidswege ) .

The applicant was initially detained in ordinary remand institutions ( huizen van bewaring ) . In a letter dated DATE to the governor of the remand institution where the applicant was detained at that time , ORG stated :

“ ... I wish to inform you that a seriously increased safety risk exists in relation to [ the applicant ] . ORG [ PERSON Informatie DATE “ GRIP ” ] has obtained information DATE which has been examined by myself and which I have found to be sufficiently relevant , reliable and concrete but which should be protected for reasons of security – to the effect that [ the applicant ] is intending to escape from detention and to that purpose is managing to make contacts outside the penitentiary .

An escape or breakout is liable to be accompanied by assistance from the outside and violence directed at others .

I would further draw your attention to the fact that it also appears from the aforementioned information that [ the applicant ] has approached persons , or has had them approached on his behalf , in a threatening and intimidating manner .

I advise you to take the appropriate measures to ensure the uninterrupted continuation of the [ applicant ’s ] detention as well as appropriate measures to prevent any damage , and in particular damage to persons , occurring outside the penitentiary . ”

On DATE the governor of the remand institution where the applicant was detained proposed to the special selection board of the maximum - security institution ( NORP PERSON – “ ORG ” ) that the applicant be placed in the ORG which is part of the PERSON Penitentiary Complex in FAC . At a meeting of the selection board on DATE the applicant was selected for placement . He was transferred to the ORG on DATE .

In a letter of CARDINAL DATE the Minister of ORG confirmed the applicant ’s placement and informed him of the reasons which had led to that decision having been taken . Reference was made to the letter ( referred to as the “ official report ” ( ambtsbericht ) ) of DATE . In respect of the threats and intimidation , the Minister of ORG wrote that these had not only been brought to bear on fellow inmates but also on persons outside the remand institution . The applicant was further informed that his escape would pose an unacceptable risk to society . The Minister had also decided that the so - called “ A regime ” should apply to the applicant in view of the latter ’s threat that he would commit suicide if placed in the ORG .

NORP In DATE the applicant lodged CARDINAL requests for a transfer to an ordinary remand institution with the ‘ s - ORG . The first request was declared inadmissible and the second was rejected . ORG based its second decision on the information obtained by GRIP , which had been further elucidated to the court , in confidence , by FAC at a hearing on DATE . Neither the applicant nor his counsel were allowed to hear what PERSON had told ORG . After the applicant and counsel had once again been admitted to the hearing , ORG very briefly provided them with some information of what it had been told by the Procurator - General but this did not contain anything about the provenance of the information obtained by GRIP or the dates on which this information had been provided to GRIP .

On DATE the Minister of ORG decided that the applicant ’s placement in the ORG should be continued . The wording of that decision was almost identical to that of the decision of DATE . However , the Minister decided that the applicant should no longer be subjected to the A regime .

On DATE the applicant again requested the ‘ sHertogenbosch Court of Appeal to order that he be transferred to an ordinary remand institution , arguing that his placement in the ORG had been unlawful . The applicant explicitly relied on LAW . He submitted that his placement in the ORG had had serious consequences for his possibilities of enjoying private and family life within the meaning of LAW : both privacy and contact with the outside world were severely limited in the ORG . Thus , ORG inmates were only allowed visits from spouses , parents and children without a glass partition between the inmate and the visitor once a month , on which occasions the only physical contact allowed was a handshake at the beginning and end of the visit . Visits from other relatives ( including siblings ) were only allowed with such a partition in place . In addition , it was only possible to contact relatives by telephone twice a week for TIME at a time .

At the hearing which took place on DATE before ORG in camera , the applicant also submitted that the conditions of his detention in the ORG constituted inhuman treatment contrary to LAW . In this connection he referred to the findings of ORG for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment ( CPT – see below ) .

ORG in camera rejected the request in a decision dated DATE . ORG held that the reasons set out in the Minister ’s decision of CARDINAL DATE justified the applicant ’s continued placement in the ORG . It further held that the conditions of detention in the ORG did not breach LAW since the ORG regime had a basis in law and the treatment of the applicant under this regime could not be regarded as amounting to torture or inhuman or degrading treatment or punishment . As regards LAW , finally , ORG held that the interferences with the applicant ’s rights under that provision were justified as they were in accordance with the law and necessary in the interests of , inter alia , public safety .

When the applicant ’s placement in the ORG was once again extended , in a decision of DATE , he lodged an appeal with ORG ( beroepscommissie ) of ORG ( Centrale PERSON ) . On DATE ORG dismissed the appeal . Although it held that he could no longer be considered extremely likely to attempt to escape , it did find that the applicant , in the event of an escape , would pose an unacceptable risk to society in view of the nature of the offences of which he stood accused and of the effects on society and public opinion .

In DATE the applicant was transferred to a prison with an ordinary regime in GPE .

NORP The applicant submitted that during his stay in the ORG he had been confronted with feelings of disempowerment and depression . The applicant ’s psychological condition was examined by ORG – “ the ORG ” ) on a number of occasions , prior to a decision on the prolongation of his placement in the ORG . The following paragraphs contain excerpts from reports of a number of these examinations , drawn up by PERSON , the head of ORG of the ORG .

Report of CARDINAL DATE :

“ The ORG most recently issued an advisory opinion relating to [ the applicant ] on DATE ... The conclusion reached at that time was the following :

‘ Having regard to [ the applicant ’s ] personality and the course of his detention , [ the applicant ] should be deemed capable of acts of desperation . Within the ORG , such acts will almost certainly ( have to ) be directed against himself . Under a less strict regime , he could vent his emotions on others . For the time being , extra attention remains a necessity . The question arises whether in the long run , despite all the efforts made , the ORG is capable of offering the care required . If the risk of escape no longer necessitates keeping [ the applicant ] in the ORG , a transfer to a Special Individual Care Unit [ bijzondere individuele begeleidingsafdeling DATE “ BIBA ” ] might be ORG

The report of DATE confirms this picture of [ the applicant ] . His psychological condition displays ups and downs . There has been a period of depression . A number of factors have a part to play in these psychological low points , such as the fact that [ the applicant ] misses his family ( his detention in the ORG certainly contributes to this ) , the continuing strain of the appeal on points of law ( after all , a great deal is at stake for [ the applicant ] ) , his relatively poorly integrated personality ( his psychological stability is low ) , as well as his cognitive capacities , which are not judged to be very high .

[ The applicant ] has been residing in the ORG for DATE now and he obviously has difficulties coping . Added to this , a number of personal characteristics and the insecurity about his fate in detention place a heavy demand on [ the applicant ’s ] limited strength . I would prefer placement in a BIBA but this is unfortunately not feasible given that [ the applicant ] is detained on remand .

As far as the present prolongation is concerned , I advise that when the decision about continued detention in the ORG is made , the aforementioned aspects will weigh relatively heavily in relation to current information about a possible risk of his escaping . ”

Report of DATE :

“ It appears from reports of the course of [ the applicant ’s ] detention that prior to his placement in the ORG he was seen as a dominant man familiar with the daily routine in detention . There were regular signs that he exerted much ( negative ) influence , involving , inter alia , threats . These signs resulted in frequent transfers . Ever since he has been staying in the ORG , a more unstable , downcast side of [ the applicant ] has become much more apparent .

[ The applicant ] is described by the prison ’s medical and health care team as a vulnerable man tending to depression , who takes medication for these complaints . A number of reasons may explain the contrast between [ the applicant ’s ] behaviour in detention prior to his placement in the ORG and his current behaviour . In the first place there is of course the threat of being sentenced to imprisonment ( for life ) . The fact that his appeal on points of law was upheld caused a strong resurgence of hope , but after he had again been sentenced to life imprisonment , [ the applicant ] was extremely upset . According to the members of the medical and health care team , he is beginning to recover . In the second place , there is the ORG regime itself which [ the applicant ] has difficulties coping with . [ The applicant ] used to be a person who was not constrained by any moral code of behaviour and who did not consider the rights of others . In the ORG , there are clearly defined limits and dependence . [ The applicant ] finds this loss of control over his own life difficult to accept and it looks as if this is a contributing factor to the development and continuation of the complaints linked to depression . Another relevant factor is contact with his family ; personnel in the ORG have the impression that this is deteriorating and that increasingly a distance is beginning to develop .

The report of DATE confirms this picture of [ the applicant ] . His psychological condition displays highs and lows . There has been a period of complaints linked to depression . These lows are often mainly reactive in nature ( bad news , problems with other detainees , the loss of a ‘ mate’ within the unit , etc . ) . There is still the continuing strain relating to the outcome of the criminal proceedings ( after all , a great deal is at stake for [ the applicant ] ) , and this should be seen against the background of the relatively poorly integrated personality of [ the applicant ] ( his psychological stability is low ) and his cognitive capacities , not judged to be very high . In view of all his problems , regular attention is paid to [ the applicant ] by the medical and health care team . There is regular contact with the psychiatrist , the psychologist and social workers . Albeit somewhat intermittently , [ the applicant ] is prepared to take medication , which does have a positive effect on his mood .

The fact remains that [ the applicant ] is having a hard time and that he has difficulties coping with the constraints of the ORG . If information about the risk of his escaping and the associated unacceptability of the risk to society is deemed such that it is no longer strictly necessary to detain [ the applicant ] in the ORG , there should be an alternative available in a secure facility which offers the possibility of creating a certain space in relation to the setting of limits . A BIBA would be suitable but , given that [ the applicant ] is detained on remand , placement there is not yet possible . I am nevertheless of the opinion that the unavailability of the most ideal detention facility where [ the applicant ] should be placed next should not be a decisive factor in the decision - making process on whether or not to prolong his placement in the ORG . ”

Report of DATE :

“ The most serious problems which [ the applicant ] says he is experiencing in the ORG are the conditions under which visits take place and the fact that he is not seeing some of his children . [ The applicant ] becomes visibly emotional when talking about this . He complains of eating a lot , listlessness , being worried and sleeplessness . As confirmed by earlier reports , [ the applicant ] gives the impression of a vulnerable man who yearns for contact and tends towards gloominess , and who has difficulties coping with his detention . There is no appearance of serious psychopathology such as psychosis , severe depression or severe anxiety . Only mild to moderate depressive symptoms and an unstable affect are visible .

It appears from the reports drawn up by the staff at the secure unit over DATE that [ the applicant ] has functioned well . He enjoys contact with certain codetainees . Judged by his own standards , he has participated to a reasonable degree in the programme on offer . He is , however , perceived as someone who complains a lot and who likes to lodge complaints about all manner of things . The conclusion is drawn that in the period under review [ the applicant ] appears to have found his feet .

The medical and health care team reports that [ the applicant ] has regular contact with the social worker .

Having regard to all of the above , [ the applicant ] has thus functioned well in DATE . The imposition of a DATE prison sentence and a ORG order , which , as opposed to life imprisonment , offer a certain perspective , has certainly contributed to the improved level of functioning . ...

Whether or not his placement in the ORG should be extended is determined in the first place by the level of risk of [ the applicant ] escaping . ... Although [ the applicant ] has difficulties coping with his placement in the ORG , the findings are not of such a nature as to constitute strong contraindications militating against a prolongation of his placement . ”

At the request of the investigating judge in the criminal proceedings against the applicant , a report was drawn up concerning the applicant ’s mental faculties by a psychologist and a psychiatrist on DATE , following a period during which the applicant was held in a psychiatric observation clinic . The following excerpt has been taken from the chapter of the report describing the applicant ’s meetings with the psychiatrist .

“ It is remarkable that soon after his admission to the psychiatric observation clinic , [ the applicant ’s ] appearance seems a lot more presentable : with his hair cut short , clean - shaven and wearing fresh clothes , he gives an altogether different impression from that at the first meeting . [ The applicant ] says the regime in the ORG did not encourage him to look after himself properly : sometimes days would go by without him speaking to anybody , he found the continuous strip - searching humiliating , and as a result he preferred not to go to the hairdresser ’s or to get showered . [ The applicant ] describes his treatment in the psychiatric observation clinic as ‘ heaven’ compared to his treatment in the ORG , and he says that as a result he feels a lot better in the psychiatric observation clinic . ”

All GPE penal institutions fall into CARDINAL of CARDINAL security categories , ranging from very limited security ( FAC beperkt beveiligd ) to maximum security ( extra beveiligd ) . The Minister of Justice lays down criteria according to which prisoners are to be selected for each such category ( section PERSON ) and ( CARDINAL ) of the DATE LAW beginselenwet ) .

The actual selection is carried out by a Ministry of Justice placement officer ( section CARDINAL ) and ( CARDINAL ) of the DATE LAW ) .

NORP EBIs are intended for prisoners who , in descending order of importance ,

( a ) are considered extremely likely to attempt to escape from closed penal institutions and who , if they succeed , pose an unacceptable risk to society in terms of committing further serious violent crimes ; or

( b ) if they should escape , would pose an unacceptable risk to society in terms of severe disturbance of public order , the risk of escaping being , as such , of lesser importance .

A special ORG circular governs decisions to detain a prisoner in a maximum - security institution or ORG ( ORG circular no . CARDINAL of DATE ) . In principle , placements in the ORG are made from an ordinary custodial institution . The governor of the custodial institution submits a proposal to the placement officer , giving reasons why the person concerned should be detained in the ORG . Before submitting this proposal , the governor requests information about the person concerned from the secretary of a special ORG selection board , which comprises a representative of ORG , a psychologist and a representative of the board of governors of the ORG in FAC . The secretary having obtained such information from various sources , the governor then discusses his proposal with the detainee . Finally , he completes his report by adding the detainee ’s comments and any objections he may have , and submits his proposal to the selection board .

The placement officer considers the proposal , consults with the governor and interviews the detainee . He then draws up his own report on the governor ’s proposal and submits it to the selection - board secretary . If the detainee is serving a long sentence or if a psychologist considers it necessary , it may be forwarded to ORG , which is responsible for issuing recommendations on the psychological aspects of the enforcement of custodial sentences and orders . The ORG is always consulted about first placements . The case is subsequently discussed by the selection board , chaired by the placement officer .

The decision to detain a prisoner in an ORG is reviewed DATE . The ORG governor must submit a behavioural report ( gedragsrapportage ) on the detainee at corresponding intervals . Prior to the decision to prolong a placement in the ORG , the detainee is interviewed by the placement officer . In all other respects the procedure is the same as the placement procedure .

The decisions referred to above are nominally taken by the Minister of ORG .

The DATE LAW and ORG ) apply in full to detainees in the ORG , giving them the same rights and obligations as detainees in ordinary institutions . A number of security measures are built into the regime , and detainees are under surveillance at all times outside their cells . These special arrangements are set out in the ORG house rules ( PERSON model huisregels ORG , CARDINAL DATE , CARDINAL/CARDINAL/DJ , Government Gazette DATE , no . CARDINAL ) . The following are features of the ORG regime :

– all contacts with the outside world are screened ; all correspondence and telephone calls ( twice a week for TIME ) are screened except for those with privileged contacts ; detainees must be separated from their visitors ( CARDINAL visit DATE for TIME ) by a transparent partition ( “ closed ” visits ) ; members of their immediate families , spouses and partners may visit once a month without such a partition ( “ open ” visits ) , although physical contact is restricted to a handshake on arrival and departure ; visitors must submit to a search of their clothes ( frisking ) before an “ open ” visit ;

– only CARDINAL detainee at a time may come into contact with staff , and CARDINAL staff members must be present ; for this purpose , special corridors have been built leading to areas where group activities take place ; these areas are under camera surveillance or are supervised by staff who are physically separated from inmates by a partition ;

– detainees may take part in sports activities at least twice DATE ; they may spend TIME a day outdoors and may also use the exercise yard at fixed times during recreation periods in their programme ; they are entitled to spend TIME a week taking part in group recreation ;

– CARDINAL people at a time may take part in group activities ;

– detainees who leave the premises must be handcuffed , for instance when going to court or for hospital treatment ; they may also be handcuffed inside the ORG , in areas where they might have access to objects with which they could injure staff or take hostages , for example when visiting the hairdresser ’s or the clinic , or when being escorted to “ open ” visits ;

– cells are periodically ( in practice , DATE ) subjected to a more thorough search ; at the same time or immediately afterwards the detainees are frisked and strip - searched ; the strip - search , which involves an external viewing of the body ’s orifices and crevices , including an anal inspection , is carried out in a closed room and , whenever possible , by a person of the detainee ’s own gender ;

– frisking and strip - searching also take place

▪ on arrival in and release from the ORG ;

▪ before and after “ open ” visits ; and

▪ after visits to the clinic , the dentist ’s surgery or the hairdresser ’s ;

– the ORG governor , or in urgent cases an ORG officer or employee , may decide that the detainee must be subjected to an internal body search if this is considered necessary to prevent any threats to order or safety within the prison , or to protect the detainee ’s own health ; an internal body search is usually carried out by a doctor but he may also instruct a nurse to carry out the search .

The ORG visited the GPE from DATE . Its findings with regard to ORG ( PERSON Extra PERSON – “ temporary maximum - security institution ” ) and the ORG were the following ( ORG to ORG on the visit to the GPE carried out by ORG for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment ( ORG ) from DATE , ORG ( DATE ) CARDINAL , excerpt ) :

“ CARDINAL . The FAC , which is located in a heavily - wooded area of FAC , began life in DATE as a prison for CARDINAL young offenders , and has since expanded to become one of the largest prison complexes in the GPE . At the time of the ORG ’s visit , it had a total capacity of CARDINAL places for young offenders and adult male prisoners .

The focus of the ORG ’s visit to the establishment was the national ‘ extra security institution’ ( unit CARDINAL ) , which provides CARDINAL places for prisoners who have been deemed likely to attempt to escape using violence ( CARDINAL places for remand prisoners and CARDINAL places for convicted inmates ) . The unit is located in CARDINAL distinct buildings : the CARDINAL ‘ temporary extra security institution’ ( Tijdelijk Extra PERSON – ( T)EBI ) opened in DATE and is physically located in CARDINAL wing of unit CARDINAL , while the CARDINAL , custom - built , ‘ extra security institution’ ( Extra PERSON – ORG ) was completed in DATE .

b. material conditions

The cells seen by the ORG ’s delegation in both ORG and ORG buildings were of a reasonable size for single occupancy ( TIME ) , appropriately furnished ( bed , chair , storage cupboard and table ) and equipped with a lavatory and wash basin .

In - cell artificial lighting was of a good standard in both buildings ; however , access to natural light was noticeably poorer in the ( T)EBI ( where the cell windows are partially obscured by frosted glass panels ) than in the ORG . The ventilation in the ( ORG cells also left something to be desired . A number of the ( ORG prisoners interviewed by the delegation complained about these shortcomings .

The ORG recommends that steps be taken to improve access to natural light in cells in the ( ORG . The visiting delegation was informed that work to improve the ventilation system in the ( ORG was due to begin in DATE ; the ORG would like to receive confirmation that this work has now been completed , together with details of the improvements involved .

More generally , while the ORG was located in bright and reasonably spacious LOC , ORG ( which is also known as the ‘ oud ORG or ‘ old ORG ) was a markedly more cramped facility . The ORG would like to be informed of whether the NORP authorities plan to close the ‘ temporary’ extra security institution in the foreseeable future .

c. regime

The ORG ’s views on the nature of the regime which should be offered to prisoners held in special security units were set out in detail in the report on its DATE visit to the GPE . In that context , the ORG welcomed the recommendation of ORG that any future ORG should have ‘ as normal a regime as PERSON .

In its DATE report , the ORG stressed that prisoners should enjoy a relatively relaxed regime ( able to mix freely with the small number of fellow prisoners in the unit ; allowed to move without restriction within what is likely to be a relatively small physical space ; granted a good deal of choice about activities , etc . ) by way of compensation for their severe custodial situation . Special efforts should be made to develop a good internal atmosphere within such units . The aim should be to build positive relations between staff and prisoners . This is in the interests not only of the humane treatment of the unit ’s occupants but also of the maintenance of effective control and security and of staff safety . The existence of a satisfactory programme of activities is just as important – if not more so – in a special detention unit as on normal location . It can do much to counter the deleterious effects upon a prisoner ’s personality of living in the bubble - like atmosphere of such a unit . The activities provided should be as diverse as possible ( education , sport , work of vocational value etc . ) As regards , in particular , work activities , it is clear that security considerations may preclude many types of work activities which are found on normal prison location . Nevertheless , this should not mean that only work of a tedious nature is provided for prisoners . In this respect , reference might be made to the suggestions set out in paragraph CARDINAL of the Explanatory Memorandum to Recommendation No . R(CARDINAL)CARDINAL of ORG .

The current regime in the ( ORG and ORG units is governed by a circular which was issued by ORG on DATE ( cf . document CARDINAL ) . According to the circular :

‘ The extra security institution ( ORG ) at ORG has a limited communication regime . A differentiation of regimes is referred to within the ORG , where a distinction is made between what is known as the A regime , where greater restrictions apply , and the B regime , with less extreme restrictions .

Groups of CARDINAL and a maximum of CARDINAL inmates take part in activities . Under the B regime , a maximum of CARDINAL inmates takes part in communal activities , while the maximum number is CARDINAL under the A regime . Communal activities involve only inmates from a single section .

For security reasons , staff in contact with inmates must always outnumber the inmates , or must even be completely separated from them physically by a transparent ( glass ) wall . Moreover , with a view to the safety of the staff concerned , in those cases covered by LAW , sub - sections CARDINAL , chapter III , of the internal regulations of ORG , inmates’ movements are restricted by handcuffs.’

The delegation found that , in practice , out - of - cell time in the ( ORG and ORG on DATE varied from a minimum of TIME ( of outdoor exercise ) to a maximum of CARDINAL ( of outdoor exercise / recreation and/or sport ) . Depending upon the regime in which an inmate had been placed ( A / B ) and the group to which they had been allocated , these activities would take place with CARDINAL other inmates .

The outdoor exercise yards in the ORG were of a reasonable size and a ‘ running strip’ was available for inmates who wished to engage in more strenuous physical activities . The exercise yards in the ( ORG were also large enough to enable prisoners to exert themselves physically ; however , their cage - like design rendered them rather oppressive facilities .

During recreation periods ( of TIME ) , inmates were allowed access to communal areas where they could associate with each other , cook and eat their own food , use a computer and/or play games including table tennis .

As regards facilities for sport , each of the CARDINAL units in the ORG was equipped with an impressive array of exercise equipment , located in a lofty glass atrium . However , inmates only had access to this equipment for CARDINAL or TIME sessions per week . Again , the equivalent facilities in ORG were of a lower standard . The ORG also had a large and well - equipped gymnasium but , at the time of the visit , it appeared that comparatively little use was being made of this facility .

There were no organised education activities . There was also no out - of - cell work ; some in - cell work was offered to inmates , but it was of a very unchallenging nature ( e.g. stringing plastic curtain hooks onto short rods ) .

All inmate activities within ORG and ORG were subject to a high level of staff surveillance ( which is perfectly understandable in a unit of this type ) ; however , direct contacts between staff and inmates were very limited ( staff and inmate usually being separated by armoured glass panels ) . This is not conducive to building positive relations between staff and prisoners . Contact with non - custodial staff – including medical staff DATE was also subject to a number of very significant restrictions ...

It should also be noted that prisoners were regularly strip - searched ( a practice euphemistically referred to as ‘ visitatie’ ) . Such searches – which included anal inspections – were carried out at least once DATE on all prisoners , regardless of whether the persons concerned had had any contact with the outside world .

Concerning contact with the outside world , it should be noted that the house rules for ORG and ORG units provide that prisoners have the right to receive CARDINAL visit of TIME from family members and other persons approved in advance by prison management . In principle , visits took place under ‘ NORP conditions ( i.e. through an armoured glass panel in a visiting booth ) . Prisoners also had the right to request CARDINAL ‘ CARDINAL visit per month from family members ; however , physical contact during such visits was limited to a handshake on arrival and leaving . Prisoners and their families remained separated by a table equipped with a chest - high barrier and prison staff stood directly behind the prisoner throughout the visit . A number of inmates interviewed by the delegation indicated that , given the upsetting effects which these restrictions had had upon their families , they no longer requested ‘ PERSON visits .

To sum up , prisoners held in the ( ORG and ORG units were subject to a very impoverished regime . They spent too little time out of their cells ; when out of their cells they associated with only a small number of fellow inmates and their relations with staff and visitors were very limited ; consequently , they did not have adequate human contact . Further , the programme of activities was underdeveloped . This was particularly the case as regards education and work . However , even as regards sport , inmates had insufficient access to the very good facilities available . Moreover , certain aspects of the regime ( in particular , systematic strip - searching ) did not appear to respond to legitimate security needs , and are humiliating for prisoners .

DATE . The delegation ’s lengthy interviews with CARDINAL prisoners held in the ( T)EBI and ORG indicated that the regime as a whole was having harmful psychological consequences for those subjected to it . Indeed , the interviews revealed a consistent association of psychological symptoms which appeared to have been induced by the regime . The inmates concerned displayed the following symptom profile :

– feelings of helplessness , which took the form of a disturbance of normal identity and severe difficulty of projection into the future ; in certain cases , the loss of identity was associated with definite episodes of depersonalisation ;

– feelings of powerlessness , closely linked to helplessness , and leading to regression and excessive pre - occupation with bodily functions ;

– anger , the predominant emotion being one of rage ( clearly linked to feelings of powerlessness ) and directed against self ( with expressions of low esteem , lack of confidence and associated depressive symptoms ) and others ;

– communication difficulties , associated with the above - mentioned depersonalisation symptoms .

The delegation ’s concerns about the harmful psychological consequences of the regime were reinforced during its subsequent visit to the Dr S. van Mesdag Clinic , where it interviewed a number of patients who had previously been held in the ( ORG or ORG , in whom persistent psychological sequelae ( insomnia ; anxiety symptoms ; disturbance of identity ; emotional liability and psychosomatic symptoms ) were clearly present .

The ORG would add that it is aware that the psychologist employed in the ( ORG and ORG has publicly expressed the conviction that the regime has led to ‘ no significant harmful effects on ORG . However , this opinion has never been subject to any form of peer review or professional assessment . It should be added that the Psychiatric Adviser to ORG expressed a contrary view to the delegation , citing as an example a case of a prisoner who had developed a florid paranoid psychosis while held in the ( T)EBI .

In the light of all of the information at its disposal , the ORG has been led to conclude that the regime currently being applied in ORG and ORG could be considered to amount to inhuman treatment . To subject prisoners classified as dangerous to such a regime could well render them more dangerous still .

The facilities in the extra security institution are of a high standard . They are quite capable of offering a regime meeting the criteria set out in paragraph CARDINAL without jeopardising legitimate security concerns .

The ORG recommends that the regime currently applied in the extra security institution be revised in the light of the remarks set out in DATE . In particular , the existing group system , if not discarded , should at least be relaxed and inmates should be allowed more out - of - cell time and a broader range of activities . Further , the current searching policies should be reviewed in order to ensure that they are strictly necessary from a security standpoint . Similarly , current visiting arrangements should be reviewed ; the objective should be to have visits taking place under more open conditions . ”

The GPE government responded in the following terms ( Interim report of ORG in response to the report of ORG for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment ( ORG ) on its visit to the GPE from DATE , ORG ( CARDINAL ) CARDINAL , excerpt ) :

“ CARDINAL . The ‘ Extra Security Institution’ ( ( ORG ) at the FAC

Recommendations by the ORG

The ORG recommends that the regime currently applied in the extra security institution be revised in the light of the remarks set out in DATE . In particular , the existing group system , if not discarded , should at least be relaxed and inmates should be allowed more out - of - cell time and a broader range of activities . Further , the current searching policies should be reviewed in order to ensure that they are strictly necessary from a security standpoint . Similarly , current visiting arrangements should be reviewed ; the objective should be to have visits taking place under more open conditions ( paragraph DATE )

Response : The ( ORG houses prisoners who are deemed exceptionally likely to attempt to escape , either with help from outside or by violent means . Generally speaking , they fall into CARDINAL categories : prisoners believed to be members of criminal organisations ; prisoners serving sentences for manslaughter or murder ; and prisoners who have escaped from prison in the past either by taking staff hostage or by using firearms ( and perhaps with help from outside ) . Arrangements for the detention of such prisoners need to be based first and foremost on systematic , fail - safe security arrangements , though a humane regime should then be provided within that context . The task of the ORG , like any other prison , is to execute custodial sentences without disruption . The restrictions imposed on prisoners should be no more than are necessary to deprive them of their liberty . What distinguishes the ORG from other prisons is the nature of the restrictions required to achieve that purpose . They must be more severe because the prisoners present , by definition , an above - average risk of escape or disruption of the normal prison regime . In practice , this means that the purpose of ORG and ORG is to create a place and regime from which it is impossible to escape , even by taking staff hostage .

The regime in the ORG is the most severe anywhere in the GPE . For that reason , use of the institution is kept to a minimum and the decision to place prisoners there is taken and later reviewed at frequent intervals by a broad - based external committee . Despite the severity of the regime , prisoners in the ORG are offered sufficient out - of - cell time ( paragraph CARDINAL ) and have the opportunity to take part in recreational , sporting , musical , creative , educational and other activities . The range of activities on offer gives prisoners regular opportunities for human contact and the staff of the ORG deliberately strive to encourage such contact and participation in activities wherever possible . The small size of the unit ’s population ( paragraph CARDINAL ) is essential to the maintenance of order , security and control and to the prevention of escapes . It is true that there are special restrictions on contact with the outside world ( in the form of the glass partition separating prisoners from visitors ) , but the frequency of visits is the same as in a normal remand centre .

The arrangements for searches in the ( ORG and ORG are essential to ensure the safety of staff . They have been evaluated in the past , as part of the DATE assessment of the ORG , and it has been decided that prisoners should not be searched more often than strictly necessary . This means that prisoners are not always searched on return to their cells , but only if they have been out of sight of the warder who let them out .

Visits are organised in such a way as to permit visual , verbal and non - verbal contact while preventing direct physical contact . The special visiting arrangements are among the most important security measures to prevent escapes . If visits were more ‘ open’ and there were any chance of smuggling contraband into the prison , there would be little point in the existence of the ORG .

The ORG recommends that the NORP authorities commission an independent study of the psychological state of current and former inmates of the extra security institution ( paragraph CARDINAL )

Response : ORG intends to investigate the performance of the ORG in DATE . It will then consider instituting a further study of the impact of the ORG regime on the psychological state of inmates if the outcome of that investigation gives reason to do so . ”

The Ministry of Justice commissioned researchers of ORG to conduct a preliminary study of the ORG ’s policy on care for the mental well - being of detainees and of the feasibility of an in - depth study of the psychological impact of a high - security regime on the mental well - being of ( former ) inmates . On DATE a report entitled “ Care in and around the Maximum Security Prison ” ( Zorg in en om de Extra PERSON ) was issued by the researchers . It concluded that the concern expressed in policy documents for the mental well - being of detainees held in maximum - security conditions was indeed evident in the day - to - DATE running of the ORG in that ORG personnel proved aware of the tension between security and humanity , and endeavoured to reduce this tension . It was further concluded in the report that a study of the psychological impact of a high - security regime was feasible . The researchers nevertheless emphasised that they had examined neither the quality of care for the mental well - being of the ORG detainees , nor the actual psychological condition of the detainees nor the effects which the regime was having on them .

NORP The Minister of Justice has commissioned a follow - up study from the same researchers , involving monitoring TIME rhythm stress and other factors among maximum - security detainees and a control group of detainees in semi - isolation . This study is set to be completed by DATE .