Remainder inadmissible;Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);No violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);No violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Access to court);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Access to court);Non-pecuniary damage - award

Erik Møse;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Oliver Kask;Peer Lorenzen

The applicant was born in DATE and lived in GPE until his arrest . He is currently serving a prison sentence .

NORP In DATE the applicant was serving a prison sentence in FAC .

On DATE he was placed in a punishment cell for DATE as a disciplinary penalty . Initially , he was placed in punishment cell no . CARDINAL . On DATE he was transferred to punishment cell no . CARDINAL . He made several applications and complaints to the prison director concerning the condition of the cells .

On DATE the applicant ’s marriage to I. was dissolved .

On DATE the applicant made a request to the prison administration to be allowed an overnight visit from his family . He was given authorisation for a visit for CARDINAL and CARDINAL DATE .

On DATE the applicant was assaulted by co - prisoners in FAC . He sustained CARDINAL stab wounds . He was taken to a hospital in GPE and later to FAC in GPE . On DATE he was taken back to FAC , where he was placed , for security reasons , in cell no . CARDINAL . That cell was in the closed disciplinary section of the prison . He was kept in cell no . CARDINAL for DATE .

On DATE the director of ORG requested ORG to transfer the applicant to ORG for security reasons . On DATE the Ministry acceded to that request . Although the applicant sought postponement of his transfer so that he could receive the family visit planned for CARDINAL and CARDINAL DATE , he was transferred to GPE on DATE and no visit took place .

Upon arrival at FAC the applicant was placed in the reception section . On DATE his request for an overnight visit was dismissed since such visits were not allowed in the reception section . A person may be kept in the reception section for DATE .

On DATE the applicant sewed his mouth together with CARDINAL stitches and announced that he was commencing a hunger strike , apparently mainly because of the prison administration ’s failure to place him in a different cell despite his requests referring to the dangerousness of PERSON , with whom he was sharing the cell . Initially he refused medical assistance , but it appears that the stitches were removed on DATE by medical staff and the applicant terminated his hunger strike .

On DATE , finding that the applicant was suicidal and might continue to harm himself , the prison director decided to apply certain additional security measures to him . In particular , he ordered the applicant ’s placement in a locked isolation cell and prohibited him from wearing personal clothing or using personal effects . The necessity of the continued application of these measures was to be reviewed once a month .

The complaints against the administration of ORG ( see paragraphs CARDINAL and DATE below ) were originally lodged with ORG . As the applicant was subsequently transferred to ORG , on DATE ORG transferred the cases to ORG , which had jurisdiction over them after the applicant ’s transfer .

On DATE ORG received a complaint from the applicant about FAC . He claimed compensation for non - pecuniary damage caused by the degrading conditions in punishment cells nos . CARDINAL and CARDINAL . He argued that the windows of the cells had been dirty and could not be opened , there had been no fresh air , the temperature had been too low and the lighting too dim ; for DATE there had been no lighting at all as the bulb had burnt out ; the noise level had been high , the plumbing had been inadequate and blockages had occurred ; there had been an unpleasant smell , the washbasin had been directly above the open toilet , the bedding had been dirty , and so on . He requested exemption from the ORG fee ( riigilõiv ) payable on the complaint .

On DATE ORG dismissed the applicant ’s request for exemption . It observed that the applicant had no means to pay the ORG fee of CARDINAL kroons ( EEK ) ( corresponding to QUANTITY ( ORG ) ) , but considered that this fact did not automatically mean that he should be granted exemption . The purpose of the possibility of granting an exemption was to secure the right to a court regardless of a person ’s economic situation . At the same time , the requirement to pay the ORG fee served the purpose of discouraging the lodging of ill - considered complaints . In deciding whether to exempt an indigent person from the obligation to pay the ORG fee , a court had to make a preliminary assessment of the necessity and importance of the protection of the person ’s rights . The more important the right to be protected and the fewer the possibilities for protecting it by other means , the more justified was the exemption from the ORG fee . The opposite was also true : it was not justified to exempt an indigent person from the ORG fee in cases where there were no rights to be protected or the matter was of no importance for the person concerned . ORG considered that the applicant ’s claim was not a matter of importance for him . The court considered that important matters in this context were ones relating to a person ’s essential interests or his or her way of life . The receipt of a pecuniary award for alleged emotional and physical suffering of a temporary nature was not of such importance as to justify his exemption from the ORG fee . The court referred to ORG ( Riigi õigusabi seadus ) , which stipulated that ORG legal aid was not granted if it was requested in order to claim compensation for non - pecuniary damage and there was no predominant public interest involved . The court also noted that the applicant had directly applied to an administrative court , whereas he could have first claimed compensation from the prison administration without needing to pay a ORG fee . In respect of the well - foundedness and prospects of success of the applicant ’s complaint , the court considered that the applicant ’s placement in a punishment cell might have caused him emotional hardship and inconvenience but the existence of the non - pecuniary damage that allegedly ensued was questionable and had not been adequately substantiated in the complaint .

On DATE ORG dismissed the applicant ’s appeal against ORG decision . ORG made reference to ORG judgment of DATE in case no . CARDINAL ( see paragraph CARDINAL below ) , according to which , in assessing whether an indigent person ’s exemption from the ORG fee was justified , a court inevitably had to make a preliminary assessment of the necessity and importance of the protection of the complainant ’s rights . It referred to the circumstances of the applicant ’s case and found DATE assuming that all of the applicant ’s allegations were DATE the applicant might have suffered inconvenience but it was questionable whether he had sustained such non - pecuniary damage as required compensation . It considered that the applicant ’s claim for damages lacked prospects of success .

The applicant appealed to ORG . On DATE ORG granted the applicant ’s request for exemption from the payment of security ( kautsjon ) for his appeal . On DATE ORG declined to hear the applicant ’s appeal .

On DATE the applicant lodged a complaint against ORG with ORG . He claimed compensation for non - pecuniary damage caused by the degrading conditions in cell no . CARDINAL . In particular , he submitted that the window of the cell had been dirty and could not be opened , there had been no fresh air , the temperature had been too low and the humidity level too high , the toilet and washbasin had been in the same corner , leading to difficulties in their use , there had been no table , chairs or hangers for clothes , the noise level had been high , the bedding had been dirty . In the same complaint he argued that his transfer from GPE to GPE on DATE of the planned family visit had been unlawful , and claimed compensation for a violation of his right to family life . He requested exemption from the ORG fee payable on the complaint .

On DATE ORG severed these CARDINAL complaints into CARDINAL separate sets of proceedings : case no . CARDINAL concerning the conditions in cell no . CARDINAL and case no . CARDINAL concerning the family visit ( in respect of the latter , see paragraph CARDINAL below ) .

On DATE ORG dismissed the applicant ’s request for exemption from the ORG fee . The reasons for its decision were substantially the same as those given in ORG decision of CARDINAL DATE in administrative case no . CARDINAL ( see paragraph CARDINAL above ) .

On DATE ORG dismissed the applicant ’s appeal against ORG decision . Its reasoning was similar to that of ORG decision of DATE in case no . CARDINAL ( see paragraph CARDINAL above ) .

The applicant appealed to ORG . On DATE ORG granted the applicant ’s request for exemption from the payment of security for his appeal . On DATE it declined to hear the applicant ’s appeal .

As the applicant ’s request for exemption from the ORG fee had been finally turned down by ORG decision , on DATE ORG gave the applicant DATE to pay the ORG fee . On DATE ORG returned the applicant ’s complaint to him as he had failed to pay the fee . The applicant sought to appeal against that decision but since he failed to bring the appeal into conformity with the applicable requirements , as requested by ORG , on DATE the court refused to examine the appeal and returned it to the applicant . He sought to appeal against that decision but since he failed to bring the appeal into conformity with the applicable requirements , as requested by ORG , on DATE the court refused to examine the appeal and returned it to him .

On DATE ORG severed the applicant ’s complaints into separate sets of proceedings ( see paragraph CARDINAL above ) and registered under no . CARDINAL - CARDINAL the complaint that his transfer from GPE to GPE on DATE of the planned family visit had been unlawful . In this complaint the applicant claimed compensation for a violation of his right to family life . He also requested exemption from the ORG fee payable on the complaint .

Also on DATE , ORG ruled on the applicant ’s request for exemption . It gave reasons substantially the same as those given in its decision of CARDINAL DATE in administrative case no . MONEY ( see paragraph CARDINAL above ) . However , since it was not convinced that the complaint was devoid of all prospects of success , it granted the applicant partial exemption from the ORG fee and ordered him to pay EEK CARDINAL ( EUR CARDINAL ) instead of the full fee of EEK CARDINAL ( EUR CARDINAL ) .

On DATE ORG dismissed the applicant ’s appeal against ORG decision , relying on reasoning similar to that of its decision of DATE in case no . CARDINAL ( see paragraph CARDINAL above ) .

The applicant appealed to ORG . On DATE ORG granted the applicant ’s request for exemption from the payment of security for his appeal . On DATE ORG declined to hear the applicant ’s appeal .

As the applicant ’s request for full exemption from the ORG fee had been finally turned down by ORG decision , on DATE ORG gave the applicant DATE to pay the ORG fee . On DATE ORG returned the applicant ’s complaint to him as he had failed to pay the fee . He sought to appeal against that decision but since he failed to bring the appeal into conformity with the applicable requirements , as requested by ORG , on DATE the court refused to examine the appeal and returned it to him .

On DATE ORG received a complaint from the applicant about ORG . He claimed compensation for non - pecuniary damage caused by the regime applied to him in FAC . In particular , he was dissatisfied that he had not been allowed to receive an TIME visit , he had not been able to make phone calls , to visit a gym , to take part in the LANGUAGE language classes , or to read fresh newspapers and magazines . He had been placed in a cell with a dangerous prisoner convicted of murder . After his placement in the locked isolation cell , he had been prohibited from using personal effects and thereby his correspondence had also been restricted for DATE . Furthermore , he considered that the restrictions imposed on taking walks , his placement in conditions threatening his life and health , his placement in a cell designated for use by aggressive persons , and the application of additional security measures had been unlawful . He requested exemption from the ORG fee payable on the complaint .

On DATE ORG dismissed the applicant ’s request for exemption . The reasons for its decision were substantially the same as those given in its decision of CARDINAL DATE in administrative case no . CARDINAL ( see paragraph CARDINAL above ) .

On DATE ORG dismissed the applicant ’s appeal against ORG decision . It employed reasoning similar to that of its decision of DATE in case no . CARDINAL ( see paragraph CARDINAL above ) .

As the applicant ’s request for exemption from the ORG fee had been finally turned down by ORG decision , on DATE ORG gave the applicant DATE to pay the ORG fee . On DATE it returned the applicant ’s complaint to him as he had failed to pay the fee . He sought to appeal against the latter decision but since he failed to bring the appeal into conformity with the applicable requirements , as requested by ORG , on DATE the court refused to examine the appeal and returned it to him .

On DATE the director of ORG ordered the applicant ’s placement in a punishment cell for DATE as a disciplinary sanction for concluding a transaction prohibited in prison ( sale of a radio tape recorder to another prisoner ) . On DATE he was placed in cell no . CARDINAL .

On DATE the applicant lodged a complaint with ORG ( case no . CARDINAL ) . He considered that the order of the prison director had in itself been unlawful as there had been no grounds for his punishment . Further , he complained about the conditions of detention in cell no . CARDINAL . According to the applicant , the bars on the window of the cell had limited the access of natural light through the dirty glass and had prevented the window from being opened for ventilation . The temperature in the cell had been too low , the noise level high and the artificial lighting insufficient . The washbasin had been directly above the toilet , preventing its normal use . The toilet had been an open one ; it had been in an unsanitary state and spread an unpleasant smell , and the bedding had been dirty . The applicant claimed compensation for non - pecuniary damage , the amount to be determined by the court . He requested exemption from the ORG fee payable on the complaint .

As the applicant ’s request for exemption from the ORG fee had been finally turned down by ORG decision , on DATE ORG gave the applicant DATE to pay the ORG fee . On DATE it returned the applicant ’s complaint to him as he had failed to pay the fee . On DATE ORG dismissed his appeal against ORG decision . On DATE ORG granted the applicant ’s request for exemption from the payment of security for his appeal . By a decision of DATE ORG declined to hear the applicant ’s appeal .

On CARDINAL DATE the applicant was strip - searched on his return to ORG from an administrative court hearing .

According to the applicant , out of CARDINAL inmates who were escorted to the prison together in the same vehicle , he was the only one searched in such a manner . In his application to the ORG the applicant submitted that he had been searched in the presence of CARDINAL prison officers . He had been ordered to undress , lift his sexual organ and squat . He had had to open his mouth and his ears had been visually inspected . According to the applicant , the officers had laughed at him . Prison officer O. had also wanted to carry out a digital rectal examination but the applicant had refused , arguing that such an examination had to be performed by a doctor . He had then been taken to the medical unit and a female doctor had carried out the procedure in the presence of CARDINAL officers . The applicant ’s request for a male doctor had been rejected and he had been warned that force could be used if he refused to comply .

In the applicant ’s subsequent observations to the ORG it was submitted that he had been searched , naked , by a doctor in front of CARDINAL prison officers .

According to the ORG the applicant had protested when ordered by the prison officers to go to the search room after his return from the court hearing . Relying on the information provided by the prison , the ORG submitted that after the order for the search had been given , the applicant himself had made a show of lowering his trousers in the search room . A male prison officer had then ordered the applicant to bend over and spread his buttocks . The applicant had refused and demanded a doctor . He had then been taken to the medical unit , where the examination had been conducted by a female doctor . There were no male doctors in ORG .

There is a copy of a report on the search in the case file which indicates that the search was carried out by CARDINAL prison officers , whose names appear on the report along with their signatures . It is stated in the report that a “ full search ” was performed and that no items prohibited in prison were found . The report does not describe the way in which the search was carried out . It further contains a statement by the applicant that he had not agreed to the search since he had been naked and felt his human dignity was being degraded .

According to the applicant , ORG subsequently instituted disciplinary proceedings for non - compliance with his orders . There is no information on the outcome of these proceedings .

The applicant made several complaints and applications to the prison administration , ORG and ORG in connection with his search of CARDINAL DATE .

Notably , on DATE the applicant claimed EEK CARDINAL ( ORG CARDINAL ) from ORG for non - pecuniary damage caused by the search , which he stated had been carried out in a degrading manner .

The prison director replied by a letter of DATE . He considered that the applicant ’s claim could not be dealt with since it was unclear what , in particular , had rendered the actions of the prison administration unlawful in the applicant ’s opinion . According to the director it was mandatory to search a prisoner when he or she entered or left the prison . The strip search also had a basis in legislation . The director gave the applicant DATE to amend his claim and requested him to provide further information as follows :

“ CARDINAL . ... what rendered the search unlawful and the officers culpable ( milles seisnes läbiotsimise õigusvastasus ja ametnike süü ) ;

NORP what damage you sustained , that is , which of the consequences listed in sections CARDINAL and CARDINAL ) of LAW ( ORG seadus ) form the basis for your claim for compensation ;

NORP by what evidence ( documentary evidence , witnesses , inspection of the scene , expert opinion ) can you prove the existence of the harmful consequences . If you can not provide the evidence you must indicate where the evidence can be found so that the prison may access it ;

NORP if financial compensation is claimed , justification for the sum claimed and the reason why you consider that the damage caused can only be compensated by money . ”

On DATE the applicant amended his claim , stating that the officers had violated his privacy and mocked him . A search report drawn up on CARDINAL DATE and signed by CARDINAL officers served as proof . The applicant also pointed out that he had made a number of written complaints to the prison director about the search in question in which everything had been described in detail . He submitted that the officers had caused him deep emotional pain , offended him and caused him resentment . Since then , he had suffered psychologically . He referred to LAW ( ORG põhiseadus ) , which stipulated that everyone had a right to compensation for non - pecuniary and pecuniary damage caused by the unlawful actions of another . He evaluated the damage caused to him at EEK CARDINAL and considered that the prison officers , and the prison , were liable for their actions .

On DATE the prison administration informed the applicant that in their opinion he had failed to remedy the deficiencies in his claim . The administration had no information which indicated that the search of the applicant had been unlawful or that the prison officers had wrongfully caused him more inconvenience than was inevitably involved in detention . Therefore , the administration deemed it unnecessary to assess whether the applicant ’s claim was justified . They refused to consider the claim and informed the applicant that the proceedings were thereby terminated and he had no right to lodge a further complaint with an administrative court in the same matter .

Nevertheless , on DATE the applicant lodged a complaint with ORG ( case no . DATE ) . He claimed EEK CARDINAL in compensation for non - pecuniary damage caused by the strip search , which had been carried out in a degrading manner .

By a decision of CARDINAL DATE ORG refused to examine the complaint since the applicant had failed to comply with the mandatory procedure , which required a prior extra - judicial adjudication of the matter .

On DATE ORG dismissed the applicant ’s appeal .

On DATE ORG declined to hear his appeal .

On DATE , at TIME , an incident occurred between the applicant and prison officers . According to the official reports , the applicant requested permission to store some documents in the storage room of the disciplinary section of the prison and to take out certain legal texts that he had previously stored there . A prison officer noticed that the applicant had hidden tobacco between the papers , and tobacco was not allowed in the punishment cell . A conflict arose and the applicant became aggressive , used offensive language against the officers and , after being taken to his cell , banged at length against the door . When an officer requested him to complete a letter of explanation , the applicant hit his hand while grabbing the paper from him , crumpled the paper and threw it on the floor . He also threatened the officers with physical violence after his release .

According to report no . CARDINAL on the use of the means of restraint , it was necessary to confine the applicant to a restraint bed “ because [ he became ] aggressive when prohibited from taking tobacco to the punishment cell , made threats , used foul language , banged at length against the door , struck a prison officer on the hand while taking from him a letter of explanation [ form ] , did not comply with the lawful orders of the prison officers . ” It was noted in the report that the applicant had been warned in advance that measures of restraint could be applied , and that he had not needed medical assistance after the use of the means of restraint .

The applicant was confined in the bed from TIME to QUANTITY p.m. on DATE . His condition was monitored once an hour , when the necessity of the continued use of the means of restraint was assessed on the basis of his behaviour .

The report contains the following entries . At TIME , TIME and TIME : “ [ use of the restraint measures ] to be continued , [ the applicant is ] aggressive and using foul language ” . At TIME and CARDINAL p.m. : “ [ use of the restraint measures ] to be continued , obscenities ” . At TIME and TIME : “ [ use of the restraint measures ] to be continued , behaviour abnormal , [ the applicant is ] silent ” . At TIME : “ [ use of the restraint measures ] to be continued , provocative behaviour ” . At TIME : “ [ use of the restraint measures ] to be discontinued , [ the applicant ] has calmed down . ” The report also contains entries according to which medical staff checked on the applicant ’s situation at TIME and TIME

According to the applicant , he had had no intention of taking tobacco from the store room ; rather , he had been provoked by an officer . He was taken back to his cell , where he refused to write a letter of explanation and refused to talk to the officers , who were demanding explanations . After TIME , officers in masks and equipped with shields burst into the cell , surrounded him , threw him to the floor and handcuffed him , even though he was not resisting but merely verbally expressing his opinion about the unlawful actions of the officers . He was then confined to the restraint bed . He was not given any drink or food and was prevented from going to the toilet for TIME .

Also on CARDINAL DATE , the prison administration ordered the application of further measures of restraint in respect of the applicant . In order to prevent the commission of serious offences and to ensure overall security in the prison , the applicant was to wear handcuffs at all times when outside his cell except in the walking yard . Handcuffs were also to be used within his cell whenever an officer needed to enter it . The additional measures were to remain in place until necessary and reviewed on DATE .

On DATE , at TIME , according to reports drawn up by prison officers , the applicant did not comply with a lawful order to be handcuffed , and he used offensive language . Physical force had to be employed to put the handcuffs on him . According to a report drawn up by a nurse , the applicant had an abrasion measuring QUANTITY by QUANTITY next to his left eye and MONEY on his neck .

According to the applicant , the officers wanted to put handcuffs on him but he asked to be shown an official decision authorising the use of this means of restraint . After TIME officers in masks and equipped with shields burst into the cell , hit him with a shield and pushed his face against the window bars . The applicant protested ; an officer , O. , told him to shut up and grabbed his neck . When the applicant started screaming owing to suffocation , O. placed his fingers in his nostrils and started to pull him up , causing him severe pain . He was then forced to the floor and handcuffed . After TIME the handcuffs were taken off , he was told to lie face down on the floor and the officers left the cell . Then a doctor came ; she examined him and left . The door was closed .

On DATE the application of the measure of restraint ( the use of handcuffs ) ordered in respect of the applicant on DATE was terminated .

CARDINAL separate sets of disciplinary proceedings were initiated against the applicant , the first in respect of the use of offensive language against prison officers and hitting an officer on DATE , and the second concerning his failure to comply with the lawful order of an officer and the use of offensive language on DATE .

CARDINAL reports on the disciplinary proceedings ( dated DATE and CARDINAL DATE ) were drawn up . Statements by the prison officers involved in the incidents and by the applicant , as well as report no . DATE on the use of the means of restraint , and a medical report , were appended to the reports on the disciplinary proceedings .

On DATE separate decisions were taken sanctioning the applicant by CARDINAL days’ confinement in a punishment cell in each case .

On DATE and CARDINAL DATE the applicant lodged offence reports with ORG . Referring to the incidents of CARDINAL and DATE , he complained of physical violence and unlawful treatment by prison officers .

ORG requested the material relating to the incidents of CARDINAL and DATE from the prison .

On DATE the prosecutor ’s office refused to initiate criminal proceedings . The prosecutor relied on the material relating to the disciplinary proceedings against the applicant , comprising statements by the prison officers and the applicant , report no . CARDINAL on the use of the means of restraint , the order concerning the further application of means of restraint , and the medical report . The prosecutor was of the opinion that the applicant had breached the prison rules both on CARDINAL and DATE and that the use of means of restraint and physical force against him had been lawful . The length of the use of the restraint bed had been dependent on the applicant ’s behaviour . The injuries established on DATE could have been sustained in the course of suppressing his resistance when he had refused to comply with the lawful orders of the prison officers .

The applicant appealed to ORG , arguing , inter alia , that the district prosecutor had approached the matter in a biased manner as only the prison ORG point of view had been taken into account . The applicant had not been interviewed and he had not been afforded a lawyer .

On DATE ORG dismissed the applicant ’s appeal . The ORG prosecutor noted that the applicant ’s point of view had been expressed in his offence report and it had not been overlooked . As the materials which the prosecutor had been in possession of had not warranted the institution of criminal proceedings , no procedural steps such as interviewing the persons involved had been taken .

On DATE the applicant lodged a complaint with ORG against the decision of ORG . He also requested legal aid , as under LAW ( ORG seadustik ) such a complaint had to be drawn up by an advocate but the applicant did not have the means to pay for a lawyer .

DATE . On DATE ORG dismissed the legal aid request . It considered that the prospects of success of the complaint were slight in the circumstances . It noted that the applicant himself had behaved in a wrongful manner which had escalated into aggression against prison officers , and there was no evidence of unlawful treatment of the applicant or physical ill - treatment ; the use of force by the prison officers had been within the lawful limits .

On DATE ORG dismissed the applicant ’s request for legal aid , finding that his appeal had no prospects of success .

The applicant lodged several complaints with ORG in relation to the events of CARDINAL and DATE . In particular , he complained about his placement in the restraint bed on DATE ( case no . CARDINAL ) , against the order of CARDINAL DATE concerning the prospective use of handcuffs ( case no . CARDINAL - CARDINAL - CARDINAL ) , and about the actual use of handcuffs on DATE ( case no . CARDINAL ) . ORG exempted him from the payment of the ORG fee on these complaints . On DATE the applicant informed ORG that he wished to withdraw the cases . By decisions of CARDINAL and DATE ORG accepted that request and terminated the proceedings in each case .

LAW ( Riigilõivuseadus ) , as in force in DATE , provided that the ORG fee ( riigilõiv ) for a complaint lodged with an administrative court was EEK CARDINAL ( EUR CARDINAL ) ( section CARDINAL(CARDINAL ) ) . If the complaint concerned compensation for damage , the ORG fee was PERCENT of the sum claimed but not less than EEK CARDINAL and not more than the amount payable on the filing of a civil action in civil court proceedings in respect of a similar amount ( section DATE ) ) . If the complainant claimed compensation for non - pecuniary damage and left the amount of compensation to be determined by the court , a ORG fee of EEK CARDINAL ( EUR CARDINAL ) was payable ( section CARDINAL(CARDINAL ) ) . The ORG fee to be paid on an appeal against a judgment of an administrative court was the same as upon the initial filing of the complaint with that court ( section CARDINAL(CARDINAL ) ) .

The State Legal Aid Act ( Riigi õigusabi seadus ) provides that ORG legal aid is not granted if the applicant ’s attempt to protect his or her rights is clearly unlikely to succeed given the circumstances ( section CARDINAL(CARDINAL)(CARDINAL ) ) . Nor is ORG legal aid granted if it is applied for in order to lodge a claim for compensation for non - pecuniary damage ( mittevaraline kahju ) and there is no predominant public interest involved ( section CARDINAL(CARDINAL)(CARDINAL ) ) .

Pursuant to LAW seadustik ) , the victim of an alleged offence can lodge a complaint with a court of appeal against a refusal by ORG to initiate criminal proceedings . Such a complaint must be lodged through an advocate .

Article CARDINAL of LAW ( Karistusseadustik ) stipulates that causing damage to the health of another person , or battery or other physical abuse which causes pain , is punishable by a fine or up to DATE imprisonment . LAW provides for criminal responsibility for the unlawful treatment of prisoners or persons in detention or custody . According to this provision , an officer of a custodial institution who , taking advantage of his or her official position , degrades the dignity of a prisoner or a person in detention or custody , or discriminates against such a person or unlawfully restricts his or her rights , is punished by a fine or up to one DATE ’s imprisonment .

LAW ( ORG seadus ) sets out the rules concerning compensation for pecuniary damage ( varaline kahju ) in section CARDINAL . In respect of compensation for non - pecuniary damage ( mittevaraline kahju ) , section CARDINAL stipulates as follows :

“ ( CARDINAL ) A natural person may claim financial compensation ( rahaline hüvitamine ) for non - pecuniary damage resulting from wrongful ( süüline ) degradation of dignity , damage to health , deprivation of liberty , violation of the inviolability of the [ person ’s ] home or private life or of the confidentiality of [ their ] correspondence , or defamation of the person ’s honour or good name .

( CARDINAL ) Non - pecuniary damage shall be compensated for in proportion to the gravity of the offence ( õiguserikkumine ) , taking into account the form and gravity of the wrongful act ( süü vorm ja raskus ) .

Section CARDINAL - CARDINAL of LAW ( PERSON ) , as in force until DATE , provided that prisoners could lodge complaints with an administrative court against administrative acts issued or measures taken by a prison , on the basis of and pursuant to the procedure provided in LAW , and on condition that the prisoner had previously lodged a complaint with ORG and ORG had returned the complaint , rejected it or failed to take a decision within the applicable time - limit ( subsection CARDINAL ) .

Subsection CARDINAL provided that a prisoner had the right of recourse to an administrative court for compensation for damage caused by a prison on condition that the prisoner had previously submitted to the prison an application for compensation for damage in accordance with the procedure provided for in LAW , and the prison had returned the application or refused to satisfy it or to review it within the applicable time - limit .

Section CARDINAL - CARDINAL of LAW , as in force from DATE , provides for ORG to review complaints concerning administrative acts issued or measures taken by a prison director . The prison director reviews complaints against administrative acts issued or measures taken by other prison officers ( subsection CARDINAL - CARDINAL ) . Subsection CARDINAL , as in force from DATE , contains amendments in the light of the new subsection CARDINAL - CARDINAL , according to which complaints against a prison director are reviewed by ORG , and complaints against other prison officers by a prison director . The amendments to subsection CARDINAL are not relevant for the present case .

A new subsection CARDINAL entered into force on DATE , according to which , where a complaint or application is returned because its author has failed to rectify deficiencies within the applicable time - limit , he or she has no right to lodge another complaint or application with an administrative court in respect of the same matter .

Section CARDINAL(CARDINAL ) provides that a prisoner must not be kept in a reception section for DATE . Pursuant to section CARDINAL(CARDINAL ) , no overnight visits may be received by a prisoner in the reception section .

Section DATE provides that a prison officer of the same sex may search a prisoner in order to discover prohibited items or substances . The search procedure is established by a regulation of the Minister of Justice .

Sections CARDINAL , DATE , DATE and CARDINAL provide as follows :

“ ( CARDINAL ) DATE Additional security measures shall be imposed with regard to a prisoner who regularly violates the requirements of this LAW or the internal rules of the prison , damages his or her health or is likely to attempt suicide or escape , or to a prisoner who poses a threat to other persons or to security in the prison . Additional security measures may also be imposed for the prevention of serious offences .

( CARDINAL ) It is permitted to apply the following as additional security measures :

CARDINAL ) NORP restriction on a prisoner ’s freedom of movement and communication inside the prison ;

CARDINAL ) NORP prohibition on a prisoner wearing personal clothing or using personal effects ;

CARDINAL ) prohibition on a prisoner taking part in sports ;

CARDINAL ) NORP commission of a prisoner to a locked isolation cell ;

CARDINAL ) use of means of restraint .

( CARDINAL ) The application of additional security measures shall be terminated if the circumstances specified in subsection ( CARDINAL ) of this section cease to exist .

( CARDINAL ) DATE Additional security measures shall be imposed by the prison service . In emergencies , additional security measures shall be imposed by the highest prison officer present at the time . ”

“ ( CARDINAL ) It is permitted to use physical restraint , handcuffs , ankle cuffs or a restraint jacket as the means of restraint provided for in LAW CARDINAL(CARDINAL)(CARDINAL ) of LAW . Means of restraint may also be used when a prisoner is being escorted . Ankle cuffs may be used as a means of restraint only while escorting a prisoner or placing a prisoner inside the prison .

( CARDINAL ) Means of restraint shall not be applied for TIME . ”

“ ( CARDINAL ) The following constitute special equipment for use in prisons :

CARDINAL ) NORP protective helmet ;

CARDINAL ) NORP body armour and other types of bulletproof vests ;

CARDINAL ) ballistic shields and other impact - resistant shields ;

CARDINAL ) NORP clothing used for special operations and face shields against caustic substances ;

CARDINAL ) NORP lighting and audio equipment ;

CARDINAL ) NORP colouring and marking devices for special purposes ;

CARDINAL ) NORP tear gas and smoke grenades ( and equipment ) ;

CARDINAL) blasting devices for special purposes ( not used against persons ) ;

CARDINAL ) NORP means for stopping vehicles ;

CARDINAL ) armoured vehicles and other vehicles for special purposes ;

CARDINAL ) service dogs .

( CARDINAL ) The following are service weapons used in prisons :

CARDINAL ) NORP truncheon and telescopic baton ;

CARDINAL ) gas weapons ;

CARDINAL ) NORP pneumatic weapons ;

CARDINAL ) firearms . ”

“ ( CARDINAL ) ORG officers are permitted to use special equipment and service weapons only as a measure of last resort , if all the remaining measures to prevent a prisoner ’s escape have been exhausted , to apprehend an escaped prisoner , to neutralise an armed or otherwise dangerous prisoner or to prevent attack or the intrusion of other people in the prison . In using special equipment and service weapons , one must avoid causing harm to the health of persons in so far as possible in a particular case .

( CARDINAL ) A prison officer has the right to use self - defence equipment and physical force in the performance of service duties or for ensuring his or her own safety .

Regulation no . CARDINAL of the Minister of Justice on ORG over the Execution of Imprisonment and Provisional Custody ( ORG ja eelvangistuse täideviimise üle järelevalve korraldamine ) , adopted on DATE , provides as follows :

“ ( CARDINAL ) A person may be searched fully or partly .

( CARDINAL ) A person ’s full search shall be conducted in a place where his privacy is secured .

( CARDINAL ) A person shall be searched by persons of the same sex .

“ ( CARDINAL ) The search of an imprisoned person is obligatory in the following instances :

CARDINAL ) NORP upon entering and leaving the prison ;

CARDINAL ) NORP before and after a visit ;

CARDINAL ) NORP if the imprisoned person is on LOC which are being searched ;

CARDINAL ) NORP before escorting a prisoner .

( CARDINAL ) An officer of the prison service also has the right to search an imprisoned person in cases not listed in subsection CARDINAL . ”

Regulation no . CARDINAL of the Government on the Enactment of the Minimum Salary ( GPE kehtestamine ) , adopted on DATE , provided that as from DATE the minimum DATE salary was EEK CARDINAL ( LAW ) .

The Administrative Law Chamber of ORG held in its judgment of DATE ( case no . CARDINAL ) :

“ CARDINAL . ... The first sentence of LAW guarantees everyone whose rights and freedoms are violated a right of recourse to the courts . This does not mean that a person who considers that his or her rights have been violated must have an unrestricted right of recourse to the courts . This fundamental right can be reasonably restricted if the restriction has a legitimate aim and the principle of proportionality is taken into consideration . Certain limitations on the right of recourse to the courts are necessary for legal certainty and in order to avoid overloading of the court system .

In assessing whether the exemption from the ORG fee of an indigent person is justified , a court must inevitably make a preliminary assessment of the necessity and importance of the protection of the complainant ’s rights . If the obligation to pay the ORG fee is to help to avoid recourse to the administrative courts with manifestly ill - founded complaints , then the possibility of granting exemption from the payment of the ORG fee serves to ensure that a person ’s important rights do not remain unprotected because of his or her indigence . The purpose of the administrative court procedure is not to ensure the largest possible number of complaints to the administrative courts but rather to secure a seamless right to recourse for the protection of a person ’s important rights . ”

In its judgment of DATE ( case no . CARDINAL ) , ORG of ORG dealt with a complaint from a prisoner of ORG about his confinement to a restraint bed for TIME . It found that the scope of regulation of the use of that means of restraint was insufficient and therefore its subsequent judicial review was seriously impeded . The report drawn up in respect of the use of the measure had not contained sufficient reasoning . Therefore , it was not possible to assess the considerations of the prison administration in finding that the prisoner had continued to behave aggressively for TIME , how the aggressiveness had been established or what kind of threat he had posed to the security of the prison or to himself . ORG found that the complainant ’s placement in the restraint bed for TIME had been unlawful .

The relevant extracts from the Appendix to the ORG , adopted at the PERSON meeting of ORG , read as follows :

“ CARDINAL.CARDINAL The use of chains and irons shall be prohibited .

CARDINAL Handcuffs , restraint jackets and other body restraints shall not be used except :

a. if necessary , as a precaution against escape during a transfer , provided that they shall be removed when the prisoner appears before a judicial or administrative authority unless that authority decides otherwise ; or

b. by order of the director , if other methods of control fail , in order to protect a prisoner from self - injury , injury to others or to prevent serious damage to property , provided that in such instances the director shall immediately inform the medical practitioner and report to the higher prison authority .

CARDINAL.CARDINAL ORG of restraint shall not be applied for any longer time than is strictly necessary .

CARDINAL NORP The manner of use of instruments of restraint shall be specified in national law . ”

The relevant part of the CARDINALnd ORG of the ORG ( ORG ( CARDINAL ) CARDINAL ) reads as follows :

“ CARDINAL . Prison staff will on occasion have to use force to control violent prisoners and , exceptionally , may even need to resort to instruments of physical restraint . These are clearly high risk situations insofar as the possible ill - treatment of prisoners is concerned , and as such call for specific safeguards .

A prisoner against whom any means of force have been used should have the right to be immediately examined and , if necessary , treated by a medical doctor . This examination should be conducted out of the hearing and preferably out of the sight of non - medical staff , and the results of the examination ( including any relevant statements by the prisoner and the doctor ’s conclusions ) should be formally recorded and made available to the prisoner . In those rare cases when resort to instruments of physical restraint is required , the prisoner concerned should be kept under constant and adequate supervision . Further , instruments of restraint should be removed at the earliest possible opportunity ; they should never be applied , or their application prolonged , as a punishment . Finally , a record should be kept of every instance of the use of force against prisoners . ”

In DATE the ORG carried out a visit to GPE . On DATE it published a report of its visit ( ORG ( DATE ) CARDINAL ) , which contains the following findings relating to ORG :

“ CARDINAL . At DATE , cell No . CARDINAL had been equipped with a special restraint bed ( covered with a mattress ) for CARDINAL - point fixation ( wrists , ankles , abdomen ) of agitated prisoners with cloth straps . Due to the lack of a special register , the delegation was not in the position to establish the precise frequency and duration of the resort to this type of physical restraint .

In the ORG ’s view , every resort to the physical restraint of a prisoner should be recorded in a special register ( as well as in the individual file of the prisoner concerned ) . The information recorded should include the date and time of the beginning and end of the measure , the reasons for resorting to the measure , the name of the doctor who ordered or approved it and an account of any injuries sustained by inmates or staff .

The ORG recommends that a special register on resort to means of physical restraint be introduced at ORG and , if appropriate , in other prisons in GPE , in the light of the preceding remarks .

Under LAW , the decision to apply means of restraint must be taken by the prison governor ( except in emergencies ) , and such means may only be applied for a maximum period of TIME . The Act does not expressly refer to beds equipped with fixation points , nor does it specify the procedure for their use . The delegation was unable to obtain precise and comprehensive information on the subject during the visit .

The ORG would like to receive detailed information on the procedure in force regarding the use of the bed equipped with fixation points in cell No . CARDINAL in FAC and , in particular , on the circumstances in which this bed is used , the arrangements for the involvement of a doctor and the manner in which the monitoring of immobilised inmates is organised . ORG would also like to receive information on the training of staff required to use this equipment . ”


Preliminary objection rejected (ratione temporis);Preliminary objection rejected (non-exhaustion);Preliminary objection rejected (six month period);Violation of Art. 6-3-c;Non-pecuniary damage - financial award;Costs and expenses - claim dismissed

Mr. PERSON , an NORP citizen born in DATE , is an accountant by profession .

On DATE , Mr. PERSON was sentenced by ORG ( pretore ) to CARDINAL months’ imprisonment and a fine for simple fraud ( truffa semplice ) . A further sentence of CARDINAL months’ imprisonment and a fine for repeated fraud ( truffa con recidiva ) , impersonation ( sostituzione di persona ) and uttering worthless cheques was imposed on him by that Judge on DATE . These various offences had been committed in DATE . Appeals lodged by the applicant on DATE and DATE were rejected on DATE and DATE , respectively , by ORG ; it dealt with both cases in Mr. PERSON ’s absence .

On DATE and CARDINAL DATE , the pretore issued committal warrants to enforce the CARDINAL prison sentences . The warrants were served on the applicant on DATE ; he had , in fact , been arrested on DATE in connection with other offences .

On DATE , Mr. PERSON , who was then in Brindisi prison , appealed once more to ORG against both of the decisions of the pretore . He claimed to be unaware of ORG judgments and accordingly filed with the appeals applications to quash ( ricorsi per cassazione ) , inter alia , " any decision given on appeal " ( " la eventuale sentenza di secondo grado " ) . The fact that the cases had been dealt with in Mr. PERSON ’s absence was the basic target of these applications : they challenged in particular the regularity of both the procedure followed as regards the service of various documents and declarations to the effect that the applicant was untraceable ( decreto di irreperibilità ; LAW ) .

By CARDINAL Orders of DATE , ORG declared the appeals inadmissible on the ground that they were directed against decisions that had already been the subject of appeals . At the same time , ORG , for reasons of jurisdiction , transmitted the applications to quash to ORG .

On DATE , Mr. PERSON , who was then in GPE prison , filed declarations with the latter Court setting out his further arguments . Although this was not mentioned amongst the principal grounds invoked , the declarations concluded with a new request : the offences covered by the decisions of the pretore should be declared to have been extinguished as a result of statutory limitation ( prescrizione ; Articles CARDINAL et seq . of LAW ) in DATE , since by that date the statutory period of DATE had elapsed .

In pleadings dated CARDINAL and DATE , which dealt only with the alleged procedural irregularity and not with the issue of statutory limitation , the public prosecutor ( pubblico ORG ) submitted that Mr. PERSON ’s applications were manifestly ill - founded .

By CARDINAL Orders ( ordinanze ) of CARDINAL DATE , ORG , sitting in chambers , declared the applications inadmissible on the ground that there had been no procedural irregularity ; it dit not , however , advert to the question of statutory limitation .

During DATE , Mr. PERSON , relying once more on the issue of statutory limitation , filed with ORG an appeal ( istanza di revisione ) against the decisions of DATE and DATE which had been confirmed by ORG on DATE and DATE . By judgment of CARDINAL DATE , ORG held that the offences of simple fraud , impersonation and uttering worthless cheques had been extinguished by statutory limitation . Accordingly , ORG judgments were quashed but not , in the case of that of DATE , as regards the offence of repeated fraud .

At the same time , the ORG declared a request by the applicant for provisional release to be inadmissible on the ground that it had not been established that his detention stemmed from the decisions that were under appeal .

Mr. PERSON was , however , released on DATE pursuant to a directive ( provvedimento ) issued on DATE by ORG public prosecutor ’s department ( procura della PERSON ) . The directive , after referring to the DATE judgment of ORG , re - calculated at DATE and DATE the total period of imprisonment due to be served in respect of the offence of repeated fraud and various other offences ; as the applicant had been in prison since DATE , the period had already expired on CARDINAL DATE .

An application by Mr. PERSON for compensation for wrongful detention was dismissed by ORG on DATE on the ground that it had been lodged out of time .

In a directive issued by the LOC public prosecutor ( procuratore della PERSON ) on DATE , another re - calculation was made of the period of imprisonment due to be served by the applicant for various offences ; the detention which he had undergone " unduly " ( " indebitamente " ) from CARDINAL DATE to CARDINAL DATE was set off against other sentences .

Mr. PERSON , who had originally been represented by a lawyer of his own choice , Mr. PERSON , included in his declaration of DATE to ORG a request for free legal aid in connection with the applications to quash . This request was granted on DATE by the President of ORG ( " the Section President " ) who appointed for the purpose Mr. PERSON , a lawyer from GPE .

On DATE , Mr. PERSON wrote to the Section President and the public prosecutor ( procuratore generale ) attached to ORG ( " the Cassation prosecutor " ) to inform them that he had heard nothing from Mr. PERSON and to request that steps be taken to provide effective assistance . By letter of DATE , Mr. PERSON advised the applicant that it was only on his return DATE that he had learned of the appointment , stated that other commitments prevented him from accepting it and gave the name of a colleague whose services he strongly recommended the applicant to utilise . On DATE , Mr. PERSON asked Mr. PERSON to apply for the appointment of a substitute in accordance with the procedure laid down by law . In a letter of DATE to the applicant , the lawyer said that on DATE he had submitted to the ORG President a formal request ( istanza ) to that effect , indicating therein that for health reasons he was unable to undertake a task which he described as very demanding and onerous ( molto impegnative e gravi ) ; he considered that in this way he had fulfilled his obligations and expressed the wish to be left in peace .

On DATE , the applicant wrote to the Section President and the NORP prosecutor requesting Mr. PERSON replacement and enclosing a copy of the latter ’s letter to him of DATE . The registry of ORG apparently replied on DATE with a note to the effect that Mr. PERSON was still acting since a lawyer appointed for legal aid purposes was not in law entitled to refuse the appointment . On DATE , Mr. PERSON DATE who referred as on subsequent occasions to various statutory texts - sent to the NORP prosecutor a complaint requesting , in addition to Mr. PERSON replacement , the imposition on him of criminal and disciplinary sanctions ; no action seems to have been taken on this complaint , a copy whereof had been sent to the ORG President . On DATE , the applicant wrote to the Senior President of ORG , inter alia , to draw his attention to the lack of legal assistance and to seek his intervention . By a telegram of CARDINAL May the registry advised the applicant that Mr. PERSON had not been replaced and that the applications to quash were still with the public prosecutor ’s department . DATE Mr. PERSON wrote again to the NORP prosecutor to complain , amongst other things , of the absence of a substitute counsel and , on DATE , the registry sent to the applicant a telegram worded similarly to the previous one . By letter of DATE to the NORP prosecutor , a copy of which was sent to the ORG President , Mr. PERSON emphasised the situation ’s serious consequences for the defence and once more requested the appointment of another lawyer .

By notification dated DATE , the registry of ORG informed Mr. PERSON that the case was due to be heard on DATE . On DATE , the registry sent to Mr. PERSON , in reply to his telegram , a telegram advising him of the date of the hearing and that the lawyer had not been replaced . Letters dated DATE from the applicant to the ORG President and the LAW prosecutor , which referred to several earlier communications of a similar nature , complained of Mr. PERSON attitude and of the authorities’ failure to act and contained a further request for replacement . On DATE , Mr. PERSON submitted to the Section President , with a copy to the NORP prosecutor , the last of such requests , alleging a violation of the rights of the defence and asking for an adjournment of the hearing ; however , this request did not reach ORG until DATE whereas it had already declared the applications to quash inadmissible on DATE ( see paragraph CARDINAL above ) .

Under LAW :

" An application to quash may be made to ORG on the following grounds :

CARDINAL ) failure to observe or erroneous application of the criminal law ... ;

CARDINAL ) exercise by a court of a power reserved by law to legislative or administrative bodies or not granted to the ORG authorities ;

CARDINAL ) failure to observe the rules of the present Code in cases where it is stipulated that non - observance shall result in nullity , inadmissibility or estoppel .

An application shall be inadmissible if made on grounds which are not prescribed by law or are manifestly ill - founded . "

Article CARDINAL provides as follows :

" When a ground on which the application would be inadmissible is pleaded by a party or is raised ex officio , the question shall be decided as a preliminary point by ORG sitting in chambers ...

In all the aforesaid cases , the ORG shall rule on the matter , having regard to the public prosecutor ’s written pleadings , without the intervention of defence lawyers .

However , in the cases contemplated in the final paragraph of LAW , the public prosecutor ’s pleading shall be filed at the registry of ORG and notice of the said filing shall be given forthwith to the applicant ’s lawyer . The latter shall be entitled to submit , within DATE of the notification , to the President of the Section seised of the matter a written request that the application be heard in open court . If such a request is presented , the ORG shall sit in public .

If the applicant has not appointed a lawyer , the aforesaid notice shall be given to the lawyer officially appointed for that purpose by the President . "

Free legal aid is governed , inter alia , by the provisions of LAW ( ORG Decreto ) no . CARDINAL of DATE .

In criminal matters , legal aid is available as of right to anyone who is in a " state of poverty " ( " stato di povertà " ; LAW ) , which phrase is to be interpreted as meaning inability to meet the expenses involved ( LAW ) . The decision affording legal aid is taken by the president of the trial court ( LAW ; see also LAW no . CARDINAL of CARDINAL DATE ) . Once granted , it is the judicial authority seised of the case which nominates the lawyer who is to act for the person concerned ( LAW ) . The prosecuting authorities or the court president may cause a substitute lawyer to be designated either on their own initiative , where there are serious reasons , or if the original lawyer " establishes legitimate grounds which oblige him to abstain , or entitle him to be excused , from acting " ( LAW . Similarly , LAW provides that an officially appointed lawyer may be replaced " for a justified reason " .

LAW no . CARDINAL of CARDINAL DATE stipulates that any defence lawyer who is unable to act must supply a written statement of the reasons therefore ; even after such a declaration has been made and for so long as he has not been replaced , the lawyer must fulfil the obligations of his office .

An assisted party loses the benefit of legal aid if he instructs a lawyer of his own choice ( LAW ) .

In general , legal aid comes under the supervision of the prosecuting authorities ; they can take such measures as may be necessary to ensure that the case of an assisted person is properly attended to and , without prejudice to the latter ’s action for damages , may request the imposition of disciplinary penalties on lawyers who neglect their duties ( LAW ) .

By virtue of LAW , a court is obliged , at any stage of the proceedings , to take notice of its own motion of the extinction of an offence ; statutory limitation takes effect by operation of law , even where an appeal is otherwise inadmissible .

The Government conceded that in the present case ORG should itself have raised this question in its decisions on the applications to quash .


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

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

Following an administrative ordinance issued by ORG ( ORG ) on DATE the applicant and his family were denied to access to the military LOC on the grounds that a photo showing his wife wearing an NORP scarf was not acceptable for the military and social security identity cards . The applicant ’s close relatives wearing NORP scarves were also not allowed into the military buildings .

On DATE ORG ( ORG ) decided to discharge the applicant from the army on grounds of acts of “ insubordination and immoral conduct ” pursuant to Article CARDINAL(b ) of LAW .

The Government submit the following in the light of the intelligence reports concerning the applicant :

The applicant , a sergeant , was a member of ORG GPE sect . He was involved in disseminating the ideology of the sect . He had an antisocial character and his wife wore an NORP scarf .

His superiors considered him an insubordinate and undisciplined soldier . He was sentenced to CARDINAL days’ confinement for disobeying his superiors and CARDINAL days’ confinement for disobeying orders . He was deprived of leave for being late to duty and received written warnings for negligence .

A committee of CARDINAL members of the armed forces concluded , in the light of the findings of the above intelligence reports , that the applicant had breached military discipline and that he should be discharged from the army . Subsequently , ORG based its decision on that opinion .

The relevant provisions of the LAW are as follows :

“ None of the rights and freedoms set forth in the LAW may be exercised with the aim of undermining the territorial integrity of the ORG or the indivisible unity of its people , imperilling the existence of ORG and the Republic , abolishing fundamental rights and freedoms , handing over control of the ORG to a single individual or group or bringing about the dominance of CARDINAL social class over the others , establishing discrimination on the grounds of language , race , religion or adherence to a religious sect or setting up by any other means a ORG order based on such beliefs and opinions . ”

“ Everyone shall have the right to freedom of conscience , faith and religious belief . Prayers , worship and religious services shall be conducted freely , provided that they do not violate the provisions of LAW . No one shall be compelled to participate in prayers , worship or religious services or to reveal his religious beliefs and convictions ; nor shall he be censured or prosecuted because of his religious beliefs or convictions .

No one may exploit or abuse religion , religious feelings or things held sacred by religion in any manner whatsoever with a view to causing the social , economic , political or legal order of the ORG to be based on religious precepts , even if only in part , or for the purpose of securing political or personal influence thereby . ”

“ All acts or decisions of the administration are subject to judicial review ...

Decisions of the President of the Republic concerning matters within his sole jurisdiction and decisions of ORG shall not be subject to judicial review .

Article CARDINAL § § CARDINAL , CARDINAL and DATE of the LAW provides that a disciplinary action can not be imposed to the civil servants provided that that the right to defence is respected . Moreover , it lays out that the disciplinary actions , other that the warnings and the reprimands are subject to legal control . The provisions concerning the soldiers are reserved . LAW on ORG stipulates that the disciplinary actions imposed to the soldiers are not subject to legal control .

Section CARDINAL ( c ) of ORG provides :

“ Irrespective of length of service , servicemen whose continued presence in the armed forces is adjudged to be inappropriate on account of breaches of discipline or immoral behaviour on CARDINAL of the grounds set out below , as established in CARDINAL or more documents drawn up during their service in the last military rank they held , shall be subject to the provisions of LAW .

Where their conduct and attitude reveal that they have adopted unlawful opinions . ”

Section CARDINAL ( c ) of LAW provides :

“ Irrespective of length of service , servicemen whose continued presence in the armed forces is adjudged inappropriate on account of breaches of discipline and immoral behaviour shall be subject to the provisions of LAW . LAW shall lay down which authorities have jurisdiction to commence proceedings , to examine , monitor and draw conclusions from personnel assessment files and to carry out any other act or formality in such proceedings . A decision of ORG is required to discharge an officer whose case has been submitted by ORG to ORG . ”

Section CARDINAL ( b ) of LAW provides :

“ ( b ) Discharge from the army for the acts of insubordination and immoral conduct :

Notwithstanding the seniority in the service , the non - commissioned officers whose maintenance is considered to be inappropriate for the acts of insubordination and immoral conduct are subject to PERSON on ORG . The investigation , examination and follow - up of the notation reports and the formalities and the competent authorities fulfilling these duties are subject to the provisions of The Regulations on assessment of officers and non - commissioned officers . The General Staff determines which non - commissioned ORG cases concerning their discharge from the army should be examined by ORG . ”

LAW on assessment of officers and non - commissioned officers provides :

“ Irrespective of length of service , the compulsory retirement procedure shall be applied to all servicemen whose continued presence in the armed forces is adjudged to be inappropriate on account of breaches of discipline or immoral behaviour on CARDINAL of the grounds set out below , as established in CARDINAL or more documents drawn up during their service in the last military rank they held :

( e ) where by his conduct and attitude the serviceman concerned has provided evidence that he holds unlawful , subversive , separatist , fundamentalist and ideological political opinions or takes an active part in the propagation of such opinions . ”


The applicant , PERSON , is a NORP national who was born in DATE and lives in FAC . She was represented before ORG by PERSON , a lawyer practising in GPE . The respondent Government were represented by their Agent , PERSON , Director of ORG at ORG .

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

The applicant married PERSON on DATE . At the time they both belonged to the ORG , a movement in which they had grown up and met each other . The couple had CARDINAL sons : A. , born on DATE , and J. , born on CARDINAL DATE . In DATE PERSON left the movement completely , as he could no longer agree with the way of life imposed by the Brethren ’s precepts .

The applicant brought separation proceedings on the grounds of repeated infidelity by ORG

On DATE a non - conciliation order was made by the Privas tribunal de grande instance , which , among other things , granted custody of the CARDINAL children to their mother , with the agreement of their father . The father retained “ the right to maintain a personal relationship with his children and to be involved in their upbringing , through unrestricted correspondence , visits or regular overnight stays ” . Rights of visiting and staying contact were further granted to him under the following conditions :

( i ) on the first and third Sunday of DATE , from TIME ;

( ii ) on DATE , from TIME ;

( iii ) on the second and fourth Wednesday of DATE , from TIME ;

( iv ) DATE from TIME DATE , and Boxing Day until TIME

The applicant appealed against that decision , challenging the scheduling of visiting contact and staying contact on DATE on the grounds that it was DATE set aside for religious devotion and that it would be abnormal for the children to be deprived of their DATE observances because of the change in the father ’s beliefs . In a cross - appeal , ORG sought an order granting him parental responsibility . In a judgment of DATE , ORG upheld all the provisions of the order under appeal . The court found in particular as follows :

“ parental authority was granted to the mother by the court below in agreement with the father , who has not adduced any evidence to suggest that such decision should be reconsidered ...

The court need not order a welfare report , as the living conditions of each parent are not such as to justify the intervention of a welfare officer ” .

In a judgment of DATE , the FAC de grande instance took note of V ’s confession of reiterated adultery , declared the couple separated on the grounds of fault by the husband , granted parental responsibility for the minor children to the applicant and decided that they should principally reside with her , scheduled the father ’s visiting and staying contact ( first and DATE of DATE and CARDINAL the school holidays ) and ordered him to pay maintenance of MONEY ( ORG ) for each child .

The applicant appealed against that judgment , requesting that the father ’s visiting contact should mainly be scheduled for DATE so that the children could continue their religious observances every DATE . In a cross - appeal PERSON sought a decision granting joint parental responsibility for the children . In a judgment of CARDINAL DATE ORG upheld all provisions of the decision under appeal . The court found in particular that “ in view of the major conflict between the parents , it [ was ] not in the children ’s interests to grant joint parental responsibility ” .

In a judgment of DATE the Privas tribunal de grande instance ruled on a divorce petition filed by the applicant and granted a divorce on grounds of fault by ORG court decided that the children should live with the applicant , who was granted parental responsibility . The father ’s visiting and staying contact was fixed as follows :

( i ) the first , third and DATE of DATE , from DATE at TIME at TIME ;

( ii ) CARDINAL of every school holiday .

On DATE PERSON applied to the court for an order stipulating that the children should reside with him and providing for joint parental responsibility . He also applied for a welfare report . On DATE the family - affairs judge of the Privas tribunal de grande instance ordered the report and deferred his decision on the remainder of the application . The findings in the welfare report , which was filed on DATE , were as follows :

“ Both parents provide sound guarantees , whether material , emotional or moral . They offer their children very different lifestyles .

PERSON educational qualities and her deep affection for her children are not called into question .

However , her way of life is not favourable to their opportunities for further education , to their integration into society in the broad sense or to their character development ; the children live with a constant feeling of guilt whenever their aspirations diverge from her own .

It was very clear during the CARDINAL interviews with the children that they both wanted to change their way of life . A. no longer wishes to attend Brethren meetings and is aware that his mother can not change her lifestyle or religious practice . J. would like to have greater freedom ; he does not want to leave his brother but remains very attached to his mother .

Consequently , a change of residence could be envisaged for the children , with the mother being granted a “ classic ” right of visiting and staying contact that could be extended in respect of J. at the child ’s request . ORG has undertaken to comply with the child ’s requests ” .

In an order of DATE the family - affairs judge granted the parents joint parental responsibility and maintained the children ’s residence with their mother . The father ’s rights of visiting and staying contact were extended as follows :

( i ) every DATE TIME until the following DATE TIME ;

( ii ) every DATE from TIME to TIME ;

( iii ) in DATE , DATE alternating DATE ;

( iv ) the whole of the remainder of DATE .

The court fixed at ORG DATE , for both children , the maintenance to be paid by ORG and found in particular as follows :

“ PERSON ceased to adhere to the ORG ’s precepts and left the movement , leading to the breakdown of his marriage , after which he started a new relationship ; [ the applicant ] , who was happy in LOC , did not change her religious practice or way or life .

.... the children ... are currently torn between their father and mother , each of whom represents a different lifestyle ; A and J do not adhere to [ the applicant ’s ] way of life , as they suffer from various taboos when they are with her , although they remain very attached to her .

... PERSON and [ the applicant ] both display sound relational and moral qualities , and both appear concerned about their children ’s happiness – that happiness being perceived by [ the applicant ] in the sense of spiritual fulfilment , which , to the extent that it is not accepted by the children , appears prohibitive and austere to them .

ORG perceives that happiness in the sense of a social adaptation that is appealing to the children who , without simply taking the easy option , may be attracted to sports or school activities that are more open in their outlook .

... each parent offers the children very satisfactory physical living conditions and provides them with all the necessary care .

... these findings justify the granting of parental responsibility to both parents .

... the residence of the children should be fixed in the light of their own interests .

... the fact that [ the applicant ] adheres to a religious movement can not in itself justify a change in the children ’s residence , as she provides them with a high standard of care and education that have made them well - bred children with good school results , and as the continuation of the children ’s schooling is not currently at issue .

However .... the findings set out in the welfare report can not be ignored ; it states that the children are very unhappy DATE and [ the applicant ] admits that the children have sometimes broken down in tears DATE , that they have unquestionably chosen their father ’s lifestyle and that they are afraid of pressure from the movement .

.... in the light of these facts ... it is appropriate to extend ORG ’s right of visiting and staying contact as set out in the operative provisions , so that he will be able to offer his children the possibility they are seeking of expanding their horizons and of taking part in activities that ORG encourages , without however depriving the minor children of the caring and warm - hearted presence of their mother . ... ”

ORG appealed against that order and requested the court to declare that the children should habitually reside with him . In his view , the decision of the court below was at odds with the findings of the welfare report . He observed that the religious obligations imposed on the children by the Brethren were contrary to the interests of the children , who were required to travel a certain distance to DATE meetings in various places . PERSON also explained that the Brethren movement imposed on the children a lifestyle that was not conducive to their development , social integration or career preparation , as they could not follow classes on DATE , use computers , take part in school outings , watch television or do sport . The applicant lodged a cross - appeal and requested the court to grant her normal leisure time with the children at DATE , on DATE and throughout the school holidays . She argued in particular that her religion , which she was free to choose , should not influence the decision concerning the children ’s residence and that any change of residence should be decided only in accordance with their interests .

A hearing was held on DATE in ORG , which reserved judgment in the case until DATE .

On DATE the children ’s lawyer ( acting under LAW and under LAW ) submitted to ORG a document containing their views , which included the following passages :

“ Lawyer : Which do you think provides the better arrangement of your DATE life : your mum ’s place or your dad ’s place ?

A : To live with my father and stay with my mother every second and fourth DATE , every first , third and DATE in DATE , and for CARDINAL of the school holidays .

( DATE ) ”

“ Lawyer : How would you like your time to be divided between your mum ’s place and your dad ’s place ?

J. : To live with my mum and visit my dad every DATE and for CARDINAL of the school holidays .

( DATE ) ”

On DATE the children asked their lawyer to send a letter to their father with the following observations , among others :

“ ... the order of DATE provides that the children should stay with you for the whole of their school holidays in DATE . However , A. and J. have asked me to confirm to you that they find it hard to understand this judicial requirement to be separated from their mother throughout DATE . In my discussions with your children I have seen that the situation is not perceived in the same way by both children . ...

In an attempt to encourage the development of a situation where the children can make the most of DATE , without any uneasiness or difficulty , and with the agreement of ORG and J. as to this initiative ( the sending of this letter ) and to the general substance of this letter , I would ask you , at their request , kindly to agree to the following :

( CARDINAL ) that A. may spend part of DATE with his mother ;

( CARDINAL ) that J. will not be obliged to spend DATE with you ;

( CARDINAL ) that with regard to J. , however , arrangements will be made for him to stay with you for DATE , in DATE or DATE , it being agreed that during the stay the boy will be protected from embarrassing questions or criticism [ concerning in particular his life in the Brethren movement ] . ”

ORG gave its ruling in a judgment of DATE . It set aside the above - mentioned decision and found in particular , with respect to the children ’s residence , as follows :

“ ... the decision taken by the court below in the light of the welfare report does not appear satisfactory for the parents or for the children .

By granting the father a right of visiting and staying contact for DATE and TIME a week , and for the whole of the school holidays except for DATE , the impugned decision obliges the children to travel a lot – a situation that is hardly conducive to their stability – and deprives them of contact with their mother during DATE , which is equally unsatisfactory in terms of their character development .

Moreover , the fact that [ the applicant ] adheres to the Brethren movement does not call into question her strong emotional relationship with her CARDINAL children , and the court therefore does not intend to base its decision on a negation of the quality of that relationship .

Lastly , it is not for the court to decide whether or not the Brethren movement constitutes a sect , but simply to determine whether the constraints imposed on the children , because of the mother ’s affiliation to the movement , do not run counter to their interests .

Contrary to what [ the applicant ] seems to believe , the moral values that have to be inculcated in children are not the prerogative of religions .

Above all , the acquisition of such values does not depend on stringent religious observances and the imposing of prohibitions on children which have the effect of setting them apart from their non - believing peers , who are regarded as sinners .

The welfare report , which on this matter has not been criticised in any way by the respondent , reveals the way of life imposed by the movement :

( i ) DATE religious observances , every DATE TIME ( from TIME ) being devoted to services or meetings , with no activities on DATE , and DATE from TIME being set aside for acts of religious devotion ;

( ii ) numerous prohibitions such as not being able to eat or drink with anyone who is not affiliated to the Brethren , to watch television , to listen to the radio or read a newspaper , use a computer or do sports .

The obligations and prohibitions thus imposed on the children , based on the idea that everything outside the movement is “ evil ” , is unquestionably harmful to the children ’s development and social integration .

The welfare report further points out that the Brethren are obliged to follow school courses by correspondence rather than going to boarding school , and a very small minority manage to obtain the school leaving certificate , even though they are regarded as good pupils .

The children , who are described by the welfare officer as mature , have clearly expressed their rejection of their mother ’s religious practice and way of life , displaying a distinct preference for their father ’s lifestyle .

The CARDINAL children broke down in tears during their meeting with the welfare officer , appearing very unhappy , but , in their mother ’s presence , they confirmed their position .

In the light of the welfare report and the factors analysed above , the court considers that , contrary to the decision of the court below , it is in the immediate interest of the children to reside with their father . ... ”

As regards the right of visiting and staying contact , the court noted as follows :

“ Whilst the court below , maintaining the children ’s residence with their mother , granted ORG a right of visiting and staying contact .... with the intention of preventing the mother from imposing on the children the religious activities of the movement to which she belongs , that decision was far from satisfactory for the reasons already given above .

Since the [ applicant ’s ] maternal qualities are not called into question – the CARDINAL children are genuinely fond of their mother – the court considers that it is appropriate to trust the mother not to allow the Brethren to put pressure on the children to “ make them change their minds ” , as child PERSON has feared .

Should she fail to do so , it would be for ORG to request the appropriate court to change the right of visiting and staying contact granted to the mother . ”

ORG decided that the children should habitually reside with their father and granted the mother a right of visiting and staying contact under the following conditions :

( i ) outside DATE , on the first , third and DATE of DATE , from TIME until TIME on DATE ; and

( ii ) for CARDINAL of the school holidays .

The maintenance contribution to be paid by the mother in respect of each child was fixed at ORG DATE .

The applicant lodged an appeal on points of law . In support of her appeal she submitted a single ground divided into CARDINAL limbs . In the first she alleged that the judgment of ORG had lacked a legal basis , since it had failed to establish any new factor justifying a change of residence . In DATE limbs , relying on ORG CARDINAL and CARDINAL of the LAW , the applicant alleged that she had suffered discrimination on the ground of religion , as the court had based its decision solely on a negative assessment of her religious practice .

On DATE ORG dismissed the appeal for the following reasons :

“ ... as regards the first limb , ORG based its decision on the results of a welfare report which had been drawn up prior to the decree of divorce , and which revealed the way of life imposed by the movement to which [ the applicant ] belongs .

As regards the last CARDINAL limbs , ORG , which did not have to give explanations as to undertakings not mentioned by [ the applicant ] in her grounds of appeal and which took into account the findings in the welfare report , together with the feelings expressed by the children , whose maturity was emphasised in that report , considered that the obligations and prohibitions imposed on them were harmful to their development and social integration .

It follows therefore that its decision can not be called into question by the grounds of appeal . ... ”

ORG subsequently lodged an application with the Puy - en - Velay tribunal de grande instance seeking a restriction of the applicant ’s right of visiting contact and the withdrawal of her right of staying contact . In accordance with an order of the family - affairs judge on DATE , a welfare report was filed . The proceedings are currently pending .

The Brethren , founded in GPE in DATE , is a NORP movement which dissented from ORG . In DATE PERSON ( DATE ) , an NORP clergyman , denounced the involvement of his ORG with the ORG and became an itinerant preacher among the “ free assemblies ” that spread across LOC and LOC . To “ abide in NORP ” , he advocated the formation of assemblies without any formal organisation or hierarchy , after the model of the churches of the Apostles . PERSON resigned from the NORP church and settled in GPE . He brought together various small congregations of which the adherents were known as “ NORP ” . The movement mainly developed in LANGUAGE - speaking countries . It is estimated that there are CARDINAL adherents in GPE .

A central tenet of Brethren doctrine is their concern to adhere unconditionally to the Scriptures and to distance themselves from outside influences . This stems from the basic principle of Separation - the duty of a believer to separate himself from evil or from anything that may undermine purity , in all aspects of DATE life . As regards their lifestyle , the following aspects , among others , should be mentioned : DATE religious observances ; no work on DATE for anyone , not even school children ( with DATE being entirely set aside for religious activities ) ; emphasis on the importance of family life ( parents are very attentive to their children , divorce is not accepted ) ; no eating or drinking with anyone outside the Brethren , because every meal is a communion ; no participation in associations ; and the avoidance of any harmful influence ( no television , radio or newspapers , no use of computers or the Internet ) . From the age of admission to a senior high school children often continue their education by correspondence .

The relevant Articles of the Civil Code , as in force at the material time , read as follows :

Article CARDINAL - CARDINAL

“ A child ’s father and mother shall be responsible for protecting his or her safety , health and morals .

They shall have a right and a duty to look after , supervise and bring up their children . ”

Article CARDINAL

“ Parental responsibility shall be exercised by both parents jointly ... if the parents of an illegitimate child , who have legally recognised the child before he or she reaches DATE , were living together at the time of the joint recognition or of the second recognition ... ”

Article CARDINAL - CARDINAL - CARDINAL

“ Should the father and mother fail to reach an agreement as to what is in the child ’s interests , any practice that they may previously have followed on similar occasions shall serve as the rule .

Failing such previous practice , or in the event of dispute as to its existence or merit , either parent may take the initiative of submitting the matter to the family - affairs judge , who shall rule after attempting to reconcile the parties . ”

Article CARDINAL

“ In all cases the family - affairs judge may , at the request of the father or the mother or ORG , modify the arrangements for exercising parental responsibility with regard to an illegitimate child . He may decide that it will be exercised either by CARDINAL of the parents , or by the father and mother jointly , in which case he shall designate the parent with whom the child shall habitually reside .

The family - affairs judge may grant a right of supervision to the parent who does not have parental responsibility . He may deny that parent a right of visiting and staying contact only for serious reasons ... ”


COOPERATIVA AGRICOLA POJARNITA-MED  v. MOLDOVA

The applicant is a company registered in GPE . It is represented before the ORG by PERSON , a lawyer practising in ORG . ORG ( “ the Government ” ) were represented by their Agent , PERSON .

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

On DATE ORG handed down a judgment by which it obliged the ORG owned company “ Moldtranselectro ” ( “ the debtor ” ) to pay its debt to the applicant in the total amount of CARDINAL NORP lei ( MDL ) . No appeal was lodged and the judgment became enforceable on DATE .

The applicant obtained an enforcement warrant which the Bailiff did not enforce . On DATE it wrote to ORG of ORG requesting the execution of the judgment and the freezing of the property of its debtor . On DATE it requested ORG to take measures for the execution of the judgment .

On DATE ORG of PERSON decided to return the enforcement warrant to the applicant without execution because the debtor did not have any assets . On DATE ORG returned the enforcement warrant without execution . The same ORG sent another letter to the applicant on DATE stating that it had verified on DATE the financial situation of the debtor and discovered that it had a significant debt towards the public budget . It had also verified the contention that the debtor continued to operate and had assets ( for instance company cars ) but it had not found any evidence of such assets .

On DATE the applicant concluded a contract with the debtor , according to which the debtor ceded to the applicant its right to collect a debt from CARDINAL party and thereby was relieved of its debt towards the applicant . The applicant did not submit that it had attempted to collect the debt from the third party .

The relevant domestic law has been set out in this ORG ’s judgment in the case of GPE v. GPE , no . CARDINAL , ECHR DATE ... ( extracts ) .