Isabelle Berro-Lefèvre;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Snejana Botoucharova;Volodymyr Butkevych

The applicant , PERSON , is a NORP national who was born in DATE and is presently serving a prison sentence in FAC . She was represented before the Court by PERSON , a lawyer practising in GPE . ORG ( “ the Government ” ) were represented by their Agent , PERSON , of ORG .

The applicant had CARDINAL previous applications with the ORG ( nos . MONEY and CARDINAL/CARDINAL ) , in both of which she complained , inter alia , about her conditions of detention DATE and the medical care she received in custody ( see below ) . In application no . CARDINAL the applicant also raised a complaint in respect of the fairness of the DATE criminal proceedings against her ( see below ) . These applications were declared inadmissible by committees of CARDINAL judges , acting under LAW of the LAW , on DATE and DATE respectively .

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

DATE the applicant was convicted CARDINAL times of various offences and sentenced to several terms of imprisonment , which she served before DATE .

DATE the applicant committed a number of offences of fraud in GPE . She was arrested on DATE . Later she was charged and prosecuted . On DATE the ORG found her guilty and sentenced her to ten years’ imprisonment . Her conviction and sentence were upheld by ORG on DATE .

On DATE ORG convicted the applicant of insulting a prison officer and sentenced her to CARDINAL months’ imprisonment .

On DATE the ORG convicted the applicant of falsely accusing CARDINAL investigators and another official of bribery , and sentenced her to CARDINAL years’ imprisonment .

In a decision of DATE the ORG joined the CARDINAL punishments and imposed a global term of imprisonment of DATE .

In a decree of DATE the President of the Republic partially pardoned the applicant .

According to the medical documents in the file and the applicant ’s submissions in her observations , she suffers from the following medical conditions : ( i ) chronic bronchitis , diagnosed in DATE , but having first developed DATE ; ( ii ) bronchial asthma , diagnosed in DATE as a complication of the chronic bronchitis ; ( iii ) arterial hypertonia , diagnosed for the first time in DATE ; ( iv ) chronic hydronephrosis of the right kidney , diagnosed in DATE , but which had first occurred earlier ; ( v ) a cyst on the left ovary ; ( vi ) polyallergy to contrast media ; ( vii ) reactive depression ; and ( viii ) neurosis .

The applicant started serving her sentence in FAC for female offenders on DATE .

On DATE her sentence was interrupted until DATE for medical reasons . As she did not return to prison , she was put on the national list of wanted persons and on CARDINAL DATE was arrested and sent back to ORG .

The applicant ’s sentence was interrupted again on DATE until DATE . As she failed to return once more , she was arrested on DATE and sent to ORG on DATE .

A further interruption was granted on DATE , until DATE . As she again did not return to prison , she was arrested on DATE and sent there .

Another interruption was granted DATE and DATE . The applicant returned to prison on DATE .

It seems that each time the applicant was arrested and returned to prison , she did not produce any documents showing that she had used the interruption of her sentence for medical treatment and provided no specifics of the medical examinations of treatments she had undergone while at liberty . On CARDINAL occasion , in DATE , she claimed that she had consulted CARDINAL doctors from the hospital of ORG . When contacted by the prison authorities , the doctors denied ever having met the applicant .

The latest interruption of the applicant ’s sentence for medical reasons was granted on DATE , until DATE . She did not return to prison .

While in prison , the applicant underwent many medical examinations and tests . On a number of occasions she refused to submit to tests .

On DATE the applicant was arrested by the NORP police on suspicion that she had used a forged identity card to pass herself off as another person . She was charged with knowingly using false documents .

On DATE ORG decided to place the applicant in pretrial detention . She was sent to an investigation detention facility in GPE . On admission she was medically examined .

The facility was situated on the premises of the NORP police department in the town centre . According to the description provided by ORG on the basis of a visit carried out in DATE , it had CARDINAL cells , each measuring CARDINAL by QUANTITY , with high ceilings . Each cell had a twolevel metal bed with mattresses , CARDINAL blankets and pillows , as well as a small table and QUANTITY small chairs . Additional blankets and bed sheets were provided upon request . The mattresses and blankets were clean but worn out . The cells did not have sanitary facilities . They did not have windows , but only openings in the doors , and were equipped with not very bright luminescent light bulbs , with the result that the lighting in them was dim , especially when the windows in the corridor , which were painted brown , were closed . The cell walls were frequently repainted and were in a satisfactory condition . While no outdoor exercise was available , the detainees were taken out of the cells for meals and the toilet for TIME CARDINAL times a day ; during this time the cell doors and the windows in the corridor were left open for ventilation . Meals were served in a separate room with a table , chairs , a sink and metal lockers for the detainees’ personal belongings . Adjacent to this room were the bathroom and the toilet . The toilet , which was of the NORP type , was quite dilapidated . The bathroom had a boiler , which made possible a shower twice DATE . No timelimits were placed on showering . The detainees were not forced to use buckets to relieve themselves in the cells .

The facility did not have a medical unit or resident medical staff . On arrest detainees were taken to the NORP local emergency service for examination . Whenever a detainee needed a doctor or a dentist , he or she was transported in a police car to the local hospital or an outside doctor was called . There were CARDINAL officers on the staff , none of them female . When necessary , a female police officer was called from the local police station .

The facility was closed DATE as part of a programme for the improvement of pretrial detention facilities in the country in the runup to its accession to ORG .

During her stay in the facility the applicant was apparently not banned from accessing the toilet every time she needed to do so . However , each time she had to notify the guards , who were all male .

On DATE and DATE the applicant was medically examined . On both occasions she complained of pain in the chest and the lumbar area ; the ORG conclusions were that her state of health did not require hospitalisation and that she could remain in the facility .

The applicant ’s stay in the facility was interrupted several times by transfers to another investigation detention facility in GPE , where she had to appear for court hearings . These transfers took place DATE , DATE , and DATE . This facility provided better conditions ; there was abundant access to natural light during DATE and proper lighting at TIME , sanitary facilities in the cells and good ventilation .

On being admitted to the investigation detention facility in GPE on DATE , the applicant informed the resident doctor that she suffered from hydronephrosis . She was then taken for an examination at FAC hospital , where she was prescribed medication . According to the doctor servicing the medical centre of the GPE detention facility , the applicant had not mentioned other conditions or symptoms and had not exhibited external signs of illness during the routine admission checkups .

On DATE the applicant , represented by an ex officio counsel , entered into a plea agreement with the prosecution in respect of the charges of using false documents . The agreement was upheld by ORG at a public hearing held on DATE . The applicant was sentenced to CARDINAL months’ imprisonment , which she was to serve after the expiry of her initial thirteenyear sentence .

On DATE ORG sent a copy of the plea agreement to ORG , advising it that the applicant was to be transferred to ORG within DATE . However , due to a lack of suitable transport she remained in GPE .

On DATE the applicant complained to the prosecution authorities about not being transferred to ORG . After conducting an inquiry , in a decision of DATE the ORG refused to open a criminal investigation against the officials allegedly responsible for the delay . The applicant did not appeal against this decision .

In the meantime , on DATE , the applicant was transported to FAC .

On admission to ORG the applicant underwent a medical checkup . It was found that she was suffering from a viral infection and she was treated with antibiotics .

As the applicant apparently made a number of complaints relating to her state of health , in DATE the prison administration arranged for her to be transferred to FAC hospital for tests . On DATE the applicant was offered the opportunity to go to that hospital but refused .

However , some time later , on DATE , the applicant was admitted to FAC hospital . She remained there until DATE . On DATE a medical committee from the hospital informed the warden of ORG and ORG that the applicant ’s main ailment was a chronic hydronephrosis of the right kidney and that none of her other conditions required hospital treatment . They further noted that the applicant had refused to undergo tests which she had been offered in an outside hospital . Their conclusion was that the applicant ’s conditions were not in an acute phase and did not require an urgent interruption of her sentence on medical grounds .

On DATE ORG turned down a request by the applicant for an interruption of her sentence .

On DATE the applicant was examined by a urologist in a hospital in GPE . He was of the opinion that surgery might be necessary if her kidney problems worsened .

On DATE the applicant had a consultation with a psychiatrist .

In a decision of CARDINAL DATE ORG rejected another request by the applicant for an interruption of her sentence on medical grounds . The office stated , after having obtained the observations of the warden of ORG and a medical certificate , that the medical treatment required could be dispensed in FAC hospital . It was thus unnecessary to release the applicant from custody .

On DATE the applicant was transferred to a detention facility in GPE , so as to be able to attend a hearing listed before ORG . She remained in that facility until DATE . On admission she underwent a medical checkup . She informed the medical staff that she was suffering from bronchial asthma , arterial hypertonia , a valvular defect and hydronephrosis . She accordingly underwent CARDINAL further checkups and was monitored throughout her stay in the facility . In view of the applicant ’s stable condition the facility medical staff saw no need to refer her to an outside hospital .

On DATE the applicant was sent for tests to a hospital in NORP where she was allegedly given an injection .

It seems that on DATE the applicant was admitted to FAC hospital for treatment for an unspecified amount of time .

On DATE the applicant was examined by a special medical committee for pulmonary diseases for the purpose of establishing the degree of her disability for pension purposes . The committee found that the applicant was suffering from asthma and chronic hydronephrosis , and concluded that she was PERCENT disabled . On DATE the applicant was again examined by the central special medical committee for pulmonary diseases . In a decision of CARDINAL DATE the commission reversed the other medical commission ’s finding and established that the applicant was suffering from light to intermediate persistent bronchial asthma , a cyst on the left kidney , a cyst on the left ovary and a dissociative personality disorder , and concluded that she was PERCENT disabled . The commission recommended that the applicant refrain from hard physical labour and avoid damp or dusty spaces , as well as cold environments .

On DATE the applicant and CARDINAL other inmates , who were , like her , in group CARDINAL ( see below , paragraph CARDINAL of the report of ORG for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment from their visit in GPE in DATE ) , were not allowed to attend a play staged by a theatre company from GPE for the inmates . The warden had based this decision on security considerations , after an incident which had taken place in the prison cinema DATE , on DATE , and because the maximum number of persons who could attend the play was CARDINAL , whereas the total number of prisoners was CARDINAL .

On DATE the applicant was examined by a cardiologist and prescribed medication .

On DATE ORG , after conducting an inquiry , rejected the applicant ’s request to open a criminal investigation against members of the prison staff who had allegedly breached the law by not allowing her to attend the theatre play .

On DATE the applicant asked to be admitted to FAC hospital . This happened on DATE . On admission she complained of breathing difficulties and pain in the right lumbar area . She remained there until DATE and was diagnosed with chronic nonobstructive bronchitis , bronchial asthma , high blood pressure , hydronephrosis , and neurosis with mood swings . She underwent urine and blood tests and several medical examinations . The conclusion of the doctors was that her overall state of health was satisfactory and that she could return to ORG as she had requested . They expressed the view that the real cause of her admission to hospital had to do with “ nonmedical ” issues and her behaviour was actuated by “ her neurosis with mood swings ” . According to Government , during her stay at the hospital the applicant had been rude to the medical staff and had refused to submit to certain medical tests . According to the applicant , there was no need for her to remain in the hospital any longer , as the doctors had refused to subject her to certain tests which she had considered important .

On DATE the applicant was examined by a surgeon in PERSON who found that she had a verruca on her left thigh . He proposed removing it on the spot , but the applicant refused .

On DATE the applicant was examined by a urologist . He apparently recommended that she undergo kidney surgery . He also suggested that she undergo a scintigraphy and an isotope nephrogram and noted that she had a polyallergy to contrasting matters . The Sliven Prison medical staff informed the applicant that the prescribed tests could be administered at FAC hospital , but she refused to undergo such tests .

On an unspecified date in DATE or DATE the applicant requested an interruption of her sentence , citing the need to undergo kidney surgery and to have a mole removed . By a decision of CARDINAL DATE ORG refused the request , noting that , according to the opinion of the medical committee at FAC , the applicant could be treated in FAC hospital , which obviated the need for such an interruption .

On DATE ORG turned down a further request for an interruption of the applicant ’s sentence on medical grounds . It reasoned that the applicant had on numerous occasions been treated at prison hospitals in GPE and in GPE and that the necessary medical tests and treatment could be carried out at FAC hospital . According to the opinion of the medical committee at FAC , there was no need to interrupt her sentence on medical grounds .

On DATE the applicant was taken out of prison to be examined by a cardiologist in NORP and undergo a electrocardiogram . The doctor who examined the applicant was of the opinion that she had to remain as an inpatient because of a worsening of her bronchitis . A hospital bed was made available , but the applicant refused to submit to treatment . However , she underwent an X - ray and laboratory tests .

On DATE ORG , after interviewing the applicant and taking note of a number of relevant medical documents , refused to open criminal proceedings pursuant to her allegations that the warden and medical staff of ORG were not doing what was necessary to preserve her health while she was in custody , and were understating her health problems in their letters to the competent prosecutor ’s offices .

On DATE the applicant was taken out of prison and examined by a cardiologist . She underwent a cardiogram and an echocardiography . It was found that she was suffering from arterial hypertonia . She was prescribed drug treatment whose costs were borne by the prison ’s medical centre .

On DATE the applicant was examined by a pulmonologist , as she had had a bronchial attack . She was prescribed medication , but refused to take it .

On DATE a medical committee of FAC hospital expressed the opinion that the applicant ’s conditions were all chronic and could be treated with medication . None of them required urgent admission to a hospital . In particular , the problem with her right kidney had been stable for DATE and there was no obvious need to remove the kidney . The commission further noted that on previous occasions the applicant had abused the interruptions of her sentence , and recommended that her request for a further interruption be turned down . She could be treated in FAC hospital or as an outpatient in FAC .

In reply to a request for an interruption of the applicant ’s sentence on medical grounds , on DATE the head of the medical centre of FAC expressed the opinion that it was possible to treat her in the prison hospital system or in the LOC hospital , if she expressed such a wish .

DATE and DATE the applicant was granted an interruption of her sentence for the purpose of medical treatment . It is unclear whether she in fact submitted to such treatment .

On DATE the applicant was apparently examined by CARDINAL urologists .

On DATE the applicant was seen by a doctor in PERSON . He examined her lungs , found that she suffered from asthma , with attendant chronic obstructive pulmonary disease , and prescribed treatment with pills and inhalers .

It seems that during most of her stay in ORG after DATE , the applicant visited its medical centre at least once a week . The journal of the centre recorded fiftyfour such visits in DATE .

During DATE and DATE the applicant received disciplinary measures CARDINAL times and was cautioned CARDINAL times , most often for rude and aggressive behaviour towards other inmates and prison staff .

Throughout DATE the prosecution authorities opened a number of inquiries pursuant to complaints by the applicant against prison guards and other officials . However , each time they decided not to open criminal proceedings . Apparently the applicant did not appeal against these decisions .

DATE the applicant apparently made several requests to have the DATE criminal proceedings against her reopened , which were all turned down .

Under LAW of LAW , a prison sentence can be interrupted if the inmate is suffering from a serious medical condition , until recovery . There is no reported caselaw clarifying what may be considered a “ serious medical condition ” .

Under LAW , in force until DATE , the authority competent to interrupt a sentence in all cases was the regional prosecutor . From that date until DATE the regional prosecutor could only order an interruption of DATE . If the interruption was for a longer period , it could be ordered by the chairperson or a specifically authorised deputy chairperson of the appropriate regional court ( LAW , as in force DATE and DATE ) . In DATE the Code was amended to provide that interruptions for periods DATE could only be ordered by a panel of the appropriate regional court ( LAW , as amended in DATE ) . In DATE competence to order an interruption was again vested in the regional prosecutor , irrespective of the period of the interruption .

Under LAW DATE Code of Criminal Procedure , which entered into force on DATE , a prison sentence may likewise be interrupted if the inmate is suffering from a serious medical condition , until he or she recovers .

The authority competent to interrupt a sentence is the regional prosecutor ( LAW ) . This Code makes no provision for appeal to a court , which means that the prosecutor ’s decision is subject to appeal before the higher prosecutor , whose decision is not subject to further appeal ( LAW ) .

Under section CARDINAL(CARDINAL ) of this LAW , as amended in DATE , medical treatment for inmates is provided , as a rule , by medical establishments attached to ORG ( that is , the prison hospitals ) . Section CARDINAL ) of the LAW provides that if these medical establishments are not suitably equipped to provide certain kinds of treatment , prisoners are to be sent to other hospitals , but are to remain under the same regime , isolation or escort .

Recommendation No . R ( CARDINAL ) CARDINAL of ORG DATE concerning the ethical and organisational aspects of health care in prison , provides , in so far as relevant :

“ A. Access to a doctor

NORP When entering prison and later on while in custody , prisoners should be able at any time to have access to a doctor or a fully qualified nurse , irrespective of their detention regime and without undue delay , if required by their state of health . All detainees should benefit from appropriate medical examinations on admission . ...

NORP In order to satisfy the health requirements of the inmates , doctors and qualified nurses should be available on a full - time basis in the large penal institutions , depending on the number and the turnover of inmates and their average state of health .

A prison ’s health care service should at least be able to provide out - patient consultations and emergency treatment . When the state of health of the inmates requires treatment which can not be guaranteed in prison , everything possible should be done to ensure that treatment is given , in all security , in health establishments outside the prison .

Prisoners should have access to a doctor , when necessary , at any time during DATE and the night . Someone competent to provide first aid should always be present on the prison LOC . In case of serious emergencies , the doctor , a member of the nursing staff and the prison management should be warned ; active participation and commitment of the custodial staff is essential .

Where appropriate , specific services should be provided to female prisoners . ...

B. Equivalence of care

Health policy in custody should be integrated into , and compatible with , national health policy . A prison health care service should be able to provide medical , psychiatric and dental treatment and to implement programmes of hygiene and preventive medicine in conditions comparable to those enjoyed by the general public . Prison doctors should be able to call upon specialists . If a second opinion is required , it is the duty of the service to arrange it .

NORP The prison health care service should have a sufficient number of qualified medical , nursing and technical staff , as well as appropriate LOC , installations and equipment of a quality comparable , if not identical , to those which exist in the outside environment .

C. Persons unsuited to continued detention : serious physical handicap , advanced age , short term fatal prognosis

Prisoners with serious physical handicaps and those of advanced age should be accommodated in such a way as to allow as normal a life as possible and should not be segregated from the general prison population . Structural alterations should be effected to assist the wheelchair - bound and handicapped on lines similar to those in the outside environment .

The decision as to when patients subject to short term fatal prognosis should be transferred to outside hospital units should be taken on medical grounds . While awaiting such transfer , these patients should receive optimum nursing care during the terminal phase of their illness within the prison health care centre . In such cases provision should be made for periodic respite care in an outside hospice . The possibility of a pardon for medical reasons or early release should be examined .

PERSON of treatment , hunger strike

In the case of refusal of treatment , the doctor should request a written statement signed by the patient in the presence of a witness . The doctor should give the patient full information as to the likely benefits of medication , possible therapeutic alternatives , and warn him / her about risks associated with his / her refusal . It should be ensured that the patient has a full understanding of his / her situation . ... ”

In this report ( ORG ( DATE ) CARDINAL ) ORG for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment ( “ the CPT ” ) described in detail their findings from visits carried out by them in a number of detention facilities , including the facility where the applicant was brought on CARDINAL occasions in DATE and DATE .. The ORG ’s findings in respect of this facility were as follows :

“ ... CARDINAL . Material conditions at the investigation detention facility at “ Major Vekilski ” Street in GPE were distinctly superior to those found elsewhere , and in many respects could serve as a model for the rest of the country . With an official capacity of CARDINAL , the facility was holding CARDINAL detained persons ( including QUANTITY women ) . There were CARDINAL cells ( measuring some CARDINAL m² ) designed to hold CARDINAL persons each . Access to natural light , artificial lighting and ventilation were adequate . The cells were furnished with beds with full bedding and personal cupboards , and were neat and clean . All cells were equipped with a sanitary annexe ( toilet and sink ) , screened by a waist - high wall . The corridor areas were monitored by closed circuit television cameras . ... ”

In this report ( ORG ( DATE ) CARDINAL ) the ORG described in detail their findings from visits carried out by them in a number of penitentiary establishments , including ORG and FAC hospital , in DATE . The ORG ’s findings in respect of them , in so far as relevant , were as follows :

“ ... DATE . Sliven Prison is the only penitentiary establishment for women in GPE . It comprises a closed prison , set up in DATE on the outskirts on the town of GPE , a reformatory hostel for girls and a transitory - type prison hostel at the same location , and an open - type prison hostel “ Ramanusha ” QUANTITY from NORP ( not visited by the delegation ) . With an official capacity of CARDINAL , on DATE of the visit the establishment was holding CARDINAL prisoners , of whom CARDINAL were women on remand , CARDINAL were sentenced women held in the closed prison and the transitory facility , CARDINAL were sentenced women accommodated in the opentype hostel , and CARDINAL were sentenced men employed on maintenance jobs in the closed prison . The female prisoner population included QUANTITY juveniles , CARDINAL life - sentenced prisoners and CARDINAL foreign prisoners .

Prisoners were distributed into CARDINAL groups [ including ORG CARDINAL : lifers and other prisoners under special regime ] in accordance with their legal status and regime . Prisoner accommodation was provided in the original QUANTITY building to which CARDINAL wings had been added over DATE , holding , inter alia , the reformatory hostel for girls ( ... ) and the transitory - type hostel ( ... ) . Due to ongoing refurbishment works on CARDINAL of the floors of the main building , there had been some reshuffling of prisoners which had resulted in overcrowding in certain of the cells . For example , in ORG , CARDINAL women were being held in a cell of CARDINAL m² , and CARDINAL women in a cell of CARDINAL m² . In the unit for remand prisoners ( Group CARDINAL ) , all the cells were overcrowded ( e.g. cells of CARDINAL m² were accommodating CARDINAL or QUANTITY women ) . In Group CARDINAL , cells measuring some QUANTITY m² were holding CARDINAL prisoners each .

Access to natural light and ventilation were not a problem , due to the fact that all cells had large , unscreened windows . Artificial lighting was also adequate ; however , the electricity supply was reportedly intermittent . The cell equipment ( single beds and/or bunks , individual lockers , a table and stools ) was generally in a good state , and the cells had a personal touch ( curtains , small carpets on the wooden floors , plants , some decoration on the walls ) . Further , general hygiene was very good . However , the top floor of the main building ( Groups CARDINAL and CARDINAL ) showed signs of disrepair ( because of a leaking roof , there was mould on the walls ) .

There was no integral sanitation in any of the cells . During DATE , prisoners could circulate around their units and access to a toilet was not a problem ( each unit had a common sanitary facility ) . However , at TIME , low staffing levels resulted in delays or failure to provide access to toilets , and prisoners relied on buckets inside their cells . This is not acceptable ; as already stressed ( ... ) , all prisoners should have access to toilets at all times . Given the special needs of women for ready access to sanitation during menstrual periods , this situation must be addressed as a matter of urgency .

As regards possibilities to maintain personal hygiene , the unit sanitary facilities ( with showers , sinks and floor - level toilets ) were somewhat dilapidated but clean . Some complaints were heard about the fact that all prisoners in a group had to use the washing facilities during the same limited period of time in TIME , which resulted in conflicts . Hot water was provided for TIME in the evenings , during which time prisoners also washed their clothes and bed linen . Further , there was hot water for showering for TIME at DATE . The lack of supply of personal hygiene products was reportedly a problem for some inmates ( only the most destitute prisoners received help from donations ) ; apparently , only washing powder and basic materials for women ’s DATE needs were provided by the prison .

NORP The food appeared to be well prepared and very few complaints were heard about it . Meals were eaten in CARDINAL dining rooms , with large windows providing a sense of space and light . The delegation was told of plans to refurbish the dining rooms in DATE .

The kitchen was scrupulously clean and well organised , despite the ageing equipment . Quantity , quality and hygiene control appeared to be functioning well .

NORP The ORG recommends that steps be taken at FAC to :

– reduce cell occupancy rates to an acceptable level ( a minimum of CARDINAL m² per prisoner ) ; cells measuring CARDINAL m² should not accommodate CARDINAL prisoner ( save in exceptional circumstances when it would be inadvisable for a prisoner to be left alone ) ;

– provide sufficient staffing levels at TIME to enable all prisoners to have ready access to a toilet around the clock ;

– provide all inmates with basic hygiene products and seek ways to increase the time during which prisoners have access to hot water during DATE ;

– pursue the refurbishment programme , in particular on the top floor of the main prison building .

Outdoor exercise of TIME per day was provided in various yards in the grounds of the prison . The large central garden and courtyard around which the main prisoner accommodation and educational facilities were situated provided generous space for exercise and recreation , although it appeared to lack shelter from inclement weather . The yard for juveniles and women from the transitory - type hostel had benches , trees and plants . However , the delegation observed that the time taken to escort prisoners to and from the workshops was counted as part of the outdoor exercise time . Whereas the escort time was undoubtedly spent in the open air , this should not be counted as part of the DATE TIME of exercise .

PERCENT of inmates in the closed prison had work at the time of the visit . Jobs were provided in a sewing workshop ( DATE prisoners ) , a workshop for cleaning household goods ( CARDINAL prisoners ) and a workshop for machine parts ( CARDINAL prisoners ) , as well as on various tasks related to the upkeep of the prison ( CARDINAL female prisoners and CARDINAL male prisoners ) . Complaints regarding work mainly centred on the difficulty of filling the production quota ; if the required total was not completed , DATE did not count towards reduction of time served or there was a reduction in pay .

The prison had a wellequipped school with a good range of educational facilities and courses . This was important given the estimated need for education , including the PERCENT illiteracy of the female sentenced population . CARDINAL prisoners were enrolled at the beginning of DATE . The school also had a computer room and offered vocational training classes as preparation for work in the sewing workshop . Additional vocational training courses ( for hairdressers , chefs , pastry - cooks , beekeepers ) were organised periodically , when there were sponsors .

The prerelease programme included a job club providing individual and group preparation for life after release , using outside trainers .

As regards other activities , the prison had a library with CARDINAL books . The selection of books appeared to be varied ; each group had DATE for visiting the library for TIME and prisoners could take out as many books as they wanted . Further , there was a large multi - functional hall where concerts and cinema projections took place , a video club , and a room on each unit where prisoners could watch TV in DATE . An attractive chapel had been set up , using profits from the prison production and donations , and a part - time post for a priest was being funded from ORG budget .

The gym appeared to be the least used facility . It was sufficiently large for basketball games , but was in need of repair . The delegation was told that adult prisoners had access to the gym for TIME ; however , this was not confirmed by many prisoners with whom the delegation spoke .

To sum up , the management team was making strenuous efforts to involve as many prisoners as possible in a variety of activities . The ORG welcomes these efforts and encourages the management of ORG to continue its efforts to engage more prisoners in work and other purposeful activities . The ORG also invites the prison management to increase the use of the gym and to provide the exercise yards with shelters from inclement weather .

At the time of the visit , health care at FAC was provided by a feldsher , a dentist and a parttime gynaecologist ; further , a paediatrician periodically visited the creche . The post of director of the prison ’s medical centre had been vacant for DATE , following the retirement of the ORG who used to fill that post . The delegation was informed that the recruitment of a new medical director was being blocked pending the adoption of legislative amendments . There was also a psychiatrist ’s post which had been vacant since DATE ; as a result , psychiatric care was provided by outside specialists . No qualified healthcare staff were present at TIME and during DATE .

The above - mentioned staff resources were clearly insufficient and had resulted in major failings in the health - care provision at both prisons . Health - care staff were overburdened and failed to provide the requisite food and general hygiene control . Further , the absence of nursing staff led to unacceptable situations , such as the use of prison officers or prisoners working as orderlies for the distribution of medication . At FAC in particular , the lack of a doctor placed an overwhelming burden on the feldsher ( who was doing her best in very difficult circumstances ) and resulted , inter alia , in an increased number of referrals to outside consultations .

As mentioned in paragraph CARDINAL , at the end of the visit the delegation made an immediate observation under LAW , paragraph CARDINAL , of the LAW , requesting the NORP authorities to take urgent action to ensure that a doctor was employed full time at FAC . In their letter of DATE , the NORP authorities indicated that the procedure for the selection of candidates for the vacant post was ongoing .

The ORG recommends that urgent steps be taken to reinforce the health - care resources at GPE and ORG , and in particular to :

– immediately fill the post of doctor at ORG ;

– fill the post of psychiatrist at ORG ;

– appoint CARDINAL more general practitioner as well as a psychiatrist at FAC ;

– ensure that both establishments have a sufficient number of nursing staff - as a first measure , immediate action is required to appoint CARDINAL full - time qualified nurses at FAC and CARDINAL at FAC ;

– ensure that someone qualified to provide first aid , preferably with a recognised nursing qualification , is always present on the premises on FAC , including at night and weekends ;

There appeared to be delays as regards transferring inmates for treatment to hospital facilities and access to medical specialists outside the penitentiary system . The procedure for transferring inmates from prisons other than GPE and GPE to the CARDINAL prison hospitals involved a recommendation by the prison doctor which had to be approved first by the prison director and then by the medical division of ORG , following which the prison had to organise transportation . A random examination of medical files revealed that this chain of administrative decisions could take quite a long time ( DATE ) . The ORG would like to receive the comments of the NORP authorities on this question .

Medical examination on admission generally took place on DATE of arrival or the following day , but there were a few isolated cases of delays of DATE , undoubtedly a reflection of the meagre staff resources . Further , during DATE spent in the reception unit , newly arrived prisoners underwent a number of examinations ( including of suicidal risk ) .

As regards screening for transmissible diseases , it varied from CARDINAL prison to another . At FAC , newly arrived prisoners were screened on admission for syphilis and HIV ; the delegation was told that prisoners verbally gave consent to HIV testing . At FAC , screening for HIV was carried out by an NGO on a voluntary basis . As regards screening for tuberculosis , a mobile X - ray unit visited the prisons once a year and all prisoners were screened . There was no screening for hepatitis at either prison .

The ORG recommends that measures be taken to ensure that all newly arrived prisoners are seen by a healthcare staff member within TIME of their arrival . The medical examination on admission should be comprehensive , including appropriate screening for transmissible diseases . Further , prisoners should be provided with counselling before ( and , in the case of a positive result , after ) any screening test as well as with information concerning the prevention of transmissible diseases .

The ORG remains concerned about the handling of medical data . All inmates had individual medical files ; however , the delegation observed that the medical information contained in them was far from being comprehensive . Further , the confidentiality of medical examinations was not always observed , nonmedical prison staff often being present during such examinations .

The ORG recommends that steps be taken to ensure that :

– prisoners’ individual medical files are properly kept and prisoners are entitled to receive copies of medical documents ;

– all medical examinations are conducted out of the hearing and – unless the doctor concerned expressly requests otherwise in a particular case – out of the sight of non - medical prison staff and law enforcement officials ;

More generally , it would appear that the difficulties in recruiting medical specialists to work in prisons and the other related failings referred to above are part of the wider problem that prison health care is not integrated into the national health - care system . This results in a failure to comply with the principle of “ equivalence of care ” , according to which prisoners should benefit from the same level of medical care as persons living in the community at large .

During the visit , the delegation received a copy of a draft Ordinance on prison healthcare prepared by a joint working group from ORG , which addresses many of the problematic areas mentioned above . In particular , it establishes the principles of equivalence of care and ORG professional independence . Other provisions concern the supply of free - of - charge medication to prisoners and ORG responsibility for providing methodological guidance to and control of health care in prisons . As regards screening for HIV , the ORG recommendations concerning confidentiality , informed consent and pre- and post - test counselling are to be observed . The LAW also stipulates that whenever signs of violence are observed , health - care staff should immediately notify the prison director and issue a medical certificate ; however , as regards the contents of the latter , reference is only made to a detailed description of the injuries observed ( in this context , see the recommendations [ made earlier in the report ] ) .

Pursuant to LAW , prisoners with medical training who have not been deprived of the right to practise can be employed in their speciality under the supervision of a medical member of staff . The ORG has already expressed in the past its concern about the employment of inmates as orderlies ( see paragraph CARDINAL of ORG ( DATE ) CARDINAL ) ; the same goes for the employment of prisoners on other health - care related jobs . As a matter of principle , prisoners should not be put in a position to exercise control over other prisoners .

The ORG recommends that the NORP authorities take into consideration the comments and recommendations made in this report in the new regulations on the provision of health care to prisoners . More generally , the ORG invites the NORP authorities to review their strategy for implementing healthcare policy in prisons with a view to ensuring harmonisation with the national health - care system and respect of the principles of equivalence of care and professional independence .

NORP The prison hospital at FAC had CARDINAL wards : surgery , internal medicine and neuropsychiatry ; in addition , there was a section for female prisoners and an area for infectious diseases . At the time of the visit , CARDINAL prisoners were being treated at the hospital ; the delegation was informed that , on average , CARDINAL prisoners were hospitalised on DATE . The hospital also performed outpatient consultations of prisoners from FAC .

Living space in the ORG rooms was satisfactory ( e.g. CARDINAL prisoners in a room measuring CARDINAL m² , including a sanitary annexe ) . The rooms had good access to natural light , artificial lighting and ventilation ; however , they were in a rather poor state of repair and cleanliness .

As for the medical equipment , it was antiquated . The hospital urgently needed new equipment , in particular for Xrays , GPE ultrasound scans and endoscopy , as well as surgical instruments .

The ORG recommends that steps be taken at FAC to :

– substantially upgrade the medical equipment ;

– improve the state of repair and the level of hygiene in GPE rooms .

Although there were practically no unfilled posts , the delegation was informed that the hospital needed CARDINAL nurses , CARDINAL GPs and an urologist ; however , there was no budget for hiring more staff . The ORG would like to receive the comments on the NORP authorities on this issue . ... ”


Questions of procedure rejected;Violation of Art. 6-1;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings

PERSON , a NORP national born in DATE , died on DATE after several stays in hospital . He lived in GPE with his parents . He received a ORG allowance of MONEY per month as a disabled adult and did not pursue an occupation .

PERSON was a haemophiliac and had undergone several blood transfusions , in particular DATE and DATE at the LAW - Antoine hospital in GPE . On DATE it was discovered that he was HIV ( Human Immunodeficiency Virus ) positive .

As other haemophiliacs had been infected by HIV , ORG tried to obtain compensation from the State for the damage suffered by its members who had been so infected . Since it was unable to secure a settlement , the ORG recommended to its members that they should institute proceedings before the DATE limitation period expired .

On DATE the applicant addressed - as he was required to do under LAW ( see paragraph CARDINAL below ) - a preliminary claim for compensation to the Minister for ORG . He sought an amount of MONEY ; he had , he maintained , been infected by HIV as a result of the negligent delay of the Minister in implementing appropriate rules for the supply of blood products .

CARDINAL other such claims were sent to the Minister .

On DATE , DATE before the expiry of the statutory limit of DATE ( see paragraph CARDINAL below ) , the Director General for Health rejected PERSON claim .

PERSON applied for legal aid on DATE ; he was granted it on DATE . On CARDINAL May he filed an application in ORG for the annulment of the ministerial decision and for an order requiring the ORG to pay him compensation of MONEY plus statutory interest .

CARDINAL applications lodged by persons who were in the same situation were brought before the administrative courts . They were assigned to ORG and raised questions some of which were common to all the cases ( responsibility of the ORG in fixing the rules for blood transfusions ) and some of which were peculiar to each individual case ( date and conditions of infection ) .

On DATE the applicant lodged a memorial , which the administrative court forwarded to the Minister on CARDINAL DATE ; he stressed in particular the consequences for him of the discovery that he was HIV positive and of " the idea that he was potentially afflicted with an incurable disease " . In a supplementary memorial of CARDINAL DATE he emphasised the urgency of his case :

" ... the applicant ’s state of health has deteriorated since DATE as is attested by the medical certificate produced .

It is for this reason that he asks the court to apply Article R.CARDINAL [ ( see paragraph CARDINAL below ) ] of the Administrative Courts’ Code , i.e. to give formal notice to the defendant Minister to the effect that he must make his submissions .

Such notice would make it possible to respect the applicant ’s right to have his case heard within a reasonable time in accordance with LAW .

This right must be respected taking into account his state of health and particularly because , as the Minister expressly rejected the preliminary application , the applicant ’s file has necessarily already been examined ; the authorities do not therefore require any special extension of time in order to prepare their defence such as would justify an infringement of the applicant ’s right under LAW .

FOR THESE REASONS

The applicant requests ORG to give to the Minister for Health , ORG and ORG formal notice that he is to produce his defence submissions speedily , and maintains his previous submissions . "

The medical certificate in question , which had been drawn up by Professor PERSON , stated :

" I the undersigned , Senior Consultant , certify that Mr [ X ] ... has for a long time been a patient in the haemostasis and blood transfusion department of the LAW establishment of the CNTS ( Centre national de transfusion sanguine - ORG ) .

He was taken into hospital for the first time in the department of infectious diseases from DATE , then he was re - admitted to the Saint - Antoine hospital on DATE , first in the general medical ward , then in intensive care and then , from DATE , in the infectious diseases department , where he is at present .

His condition warrants his being taken into care for an indefinite period by a department specialising in the treatment of infectious diseases .

The Minister for ORG and ORG replied by a memorial dated DATE , lodged on CARDINAL DATE and communicated to the applicant on DATE . In it he called upon the court to " dismiss the applicant ’s claim " , but added :

" However , in the event of the court ’s finding itself able to accept the principle of negligence on the part of the ORG , I would ask you to appoint an expert with a view to establishing whether the damage for which the applicant seeks compensation is genuinely attributable to such negligence . "

On DATE the applicant submitted his reply , in which he asked that the application for an expert opinion be rejected . He stated :

" The applicant claims primarily that the application for an expert opinion should be dismissed , as such an opinion was requested by the defendant Minister only to establish whether the damage sustained by the applicant was indeed attributable to his negligence .

As the causal connection has been clearly established by the evidence in the applicant ’s file , the only question to be ruled on by the court is whether the Minister was negligent .

This assessment of whether the delay in taking the measures for protection of public health which he was under a duty to take was negligent may be made in the light of the evidence before the court , which can in addition request the communication of the expert opinion of Professor PERSON before the tribunal de grande instance .

In the further alternative , should the court call for a new expert ( Professor PERSON unfortunately having died ) , the expert appointed should be able to have access to his predecessor ’s work . "

On DATE , CARDINAL May and DATE , the President of the relevant section of ORG asked the Minister or the Director of ORG , as the case may be , for certain information and documents ; they replied to these requests on DATE , DATE , DATE and DATE . These various investigative measures concerned all the litigation involving infected haemophiliacs pending before ORG .

CARDINAL of the documents which was added to the file as a result was a report entitled " Blood Transfusion and AIDS in DATE . Chronology of the facts and decisions with regard to haemophiliacs " ; ORG ( GPE ) had drawn up this report on DATE , at the request of the Minister for ORG and Integration and the Deputy Minister for Health on DATE . It set out the facts and analysed the decisions taken , essentially DATE , with a view to ensuring " safe transfusions " over DATE of the development of AIDS .

PERSON was informed of these various investigative measures on DATE . The documents produced both by the authorities and ORG were communicated to him .

On DATE he submitted CARDINAL supplementary memorials in which he stated that he had now " developed full AIDS " ( acquired immune deficiency syndrome ) . The second memorial contained an application for interim relief in the form of an advance ( see paragraph CARDINAL below ) .

ORG and ORG lodged a further defence memorial on DATE and on DATE the court asked the applicant to produce various medical documents .

The hearing in ORG was held on DATE . DATE the court dismissed PERSON claims on the following grounds :

Mr [ X ] claims that the ORG is liable on account of alleged negligence on the part of the Minister responsible for ORG in exercising the powers of health policy vested in him pursuant to the combined provisions of Articles L. CARDINAL and L. CARDINAL of LAW ; in support of his submissions the applicant argues that the Minister delayed prohibiting the distribution to haemophiliacs of blood products contaminated with the human immunodeficiency virus ( HIV ) although , DATE , the process of heat- treating blood made it possible to inactivate the virus ; he further complains that the relevant ministry did not inform the haemophiliac community of the serious risks incurred through the use of such products ; the ministerial authority is also criticised for having , in the exercise of its powers of health policy , on DATE , postponed until DATE the ending of reimbursement by health insurance funds of the blood products used by the haemophiliacs , a measure which it is agreed amounted in fact to a prohibition owing to the high cost of the products known as ` factors ORG and GPE ;

In a new pleading filed on DATE , Mr [ X ] argues in the alternative that the ORG is also liable on the ground of liability for presumed negligence in the organisation and functioning of the public service of blood transfusion ; he further alleges that the ORG is liable on the basis of the risk arising from the reckless activity of the public blood transfusion service ;

The liability of the ORG

The public blood transfusion service in GPE is run by private associations , having none of the prerogatives of a public authority , which are moreover exclusively exercised by the ORG as holder of the specific powers of health policy ( as indicated above ) ; the ORG is , however , neither prescriber , nor manufacturer , nor supplier of the offending blood products [ ; ] accordingly its liability may be incurred only on account of negligent acts committed in the exercise of its regulatory powers and it is for the applicant to prove that such negligence occurred ;

The investigation shows that progress in scientific knowledge concerning HIV , whose first pathological manifestations appeared DATE , from the point of view both of its transmission and of the techniques for its inactivation , was very slow and was the subject of controversy within the scientific community itself ; in particular , although the process of heat - treating blood was approved by the NORP health authorities as early as DATE , this technique was developed to combat the hepatitis virus ; its effectiveness against HIV remained purely hypothetical for DATE ; moreover , some researchers feared that the use of this technique would be likely to have an adverse effect on the ORG clotting and auto - immunising property ; although such fears proved unfounded , an assessment of the liability incurred must necessarily be made on the basis of the scientific knowledge available at the time ; in confining itself to issuing , by way of a circular on DATE , a recommendation concerning the selection of blood donors , for the information of donors and doctors at transfusion centres about the potential risks of infection , the administrative authority did not therefore commit a negligent act such as to render it liable ; the same applies , for identical reasons , to the lack of information furnished to the haemophiliac community concerning the risks to which they were exposed ;

However , after this date scientific knowledge constantly progressed ; the ORG , which was moreover an ex officio member of ORG , could not fail to have been aware both of such progress and of the spread of the epidemic , and it could not plead the lack of availability of reliable HIV screening tests in order to justify its " wait - and - see " policy once cases of AIDS in the haemophiliac community had revealed the existence of a statistically significant causal relationship between the administration of blood product derivatives and HIV infection ; even granted that there remained some uncertainties concerning hypothetical side effects of the heat - treatment technique at DATE , the revelation of the scale of the predicted health catastrophe demanded that the distribution of contaminated blood products be halted rigorously and without delay ;

The investigation , and in particular the report of ORG , shows that the ministerial authority was informed at the latest and in unequivocal terms on DATE of the very strong probability that in the GPE region " all blood products prepared from pools of NORP donors [ were ] currently contaminated " ; the author of the report appositely noted that the importance of this message did not seem to have been perceived ; in failing to adopt immediately a measure prohibiting the distribution of such products , either by legislation or taking appropriate practical measures , the authority responsible for health policy thus committed a negligent act such as to render the ORG liable ;

Moreover , when on DATE the authority correctly assessed the danger to health in deciding that non - heat- treated blood products should no longer be reimbursed , it saw fit to postpone the date on which its decision was to take effect until DATE ; given the certainty established at that time that all blood products were contaminated , it can not , in order to justify opting for a transitional period , plead either the consent of the haemophiliac community , which had in any case not been accurately informed of the scale of the catastrophe , or an alleged need to maintain CARDINAL self - sufficiency , while decontaminated products were available on the international market ;

On the other hand , the physiological consequences of re- infection of those who were already HIV positive on DATE , made possible through the shortcomings of the ORG referred to above , are entirely hypothetical in the present state of scientific knowledge ; consequently , the alleged damage from re - infection is purely contingent and can not give rise to a right to compensation ;

It follows from all the foregoing that the ORG is liable in respect of haemophiliacs who were infected by HIV in the course of transfusion of non - heat - treated blood products , during the period of liability defined above , DATE and DATE ;

Although the ORG , as indicated above , is neither the prescriber , nor the manufacturer , nor the supplier of the offending blood products , and although it is for the courts alone to assess whether the blood transfusion centres have incurred liability , nonetheless the task of such centres is to provide a public service , and accordingly there are grounds for the administrative court to order the ORG to pay compensation for the whole of the damage suffered ;

The causal relationship between the damage suffered by Mr [ X ] and the liability of the ORG

Even if Mr [ X ] , who received for the treatment of his haemophilia not clotting factors ORG or ORG , which it has been established above were negligently distributed , but A cryoprecipitates , may validly claim that the ORG is liable , the case - file shows that he was found to be HIV positive on DATE , a condition , which , taking into account an irreducible period of seroconversion , must be regarded as having actually arisen prior to the beginning of the period of the ORG ’s liability defined above , and consequently the submissions of his application must be dismissed ; "

As the trial court had given its decision , the application for an advance was rejected by an order of DATE ( see paragraph CARDINAL above ) .

On DATE Mr X appealed to ORG ; the proceedings in that court , which have been continued by his parents , are still pending .

The participants in the GPE proceedings provided the ORG with information concerning the various schemes for compensating AIDS victims introduced since DATE , in particular by PERSON no . CARDINAL of DATE " on various social welfare provisions " ( ORG République française of DATE ) .

At the material time the Administrative Courts’ Code contained , inter alia , the following provisions :

" Except in cases concerning public works , proceedings may not be instituted in ORG otherwise than in the form of an appeal against a decision ; such an appeal shall be lodged within DATE of the notification or the publication of the contested decision .

Where no reply is forthcoming from the relevant authority for DATE , that silence is to be construed as a decision rejecting the complaint .

" The President of the ORG shall give a formal warning ( mise en demeure ) to the relevant authority or to a party who has failed to comply with the time - limit laid down pursuant to ORG R.CARDINAL and R.CARDINAL ; in a case of force majeure , a new and final time - limit may be accorded . "

" The President of ORG or of ORG , or the judge delegated by CARDINAL of the latter , may award an advance to a creditor whose application on the merits is pending before the court in question , where the existence of an obligation can not seriously be contested . He may , even of his own motion , make the payment of the advance subject to the lodging of a security . "

" Immediately after the application instituting the proceedings has been registered with the registry , the President of the court or , in GPE , the President of the section to which the application has been transmitted , shall appoint a rapporteur .

Under the authority of the President of the competent court , the rapporteur shall , having regard to the if necessary , to the parties for the production of supplementary memorials , observations , statements of defence or replies . He may request the parties to supply any evidence or documents relevant to the solution of the dispute , to be added to the file so as to be accessible to all parties . "

" A member of ORG or of ORG may be assigned by the competent court or by the latter ’s President to carry out any investigative measures other than those provided for in DATE of this chapter . "


The applicant , PERSON , born in DATE , is ethnic NORP and lives in Randers , GPE . She is represented before the ORG by Mr Lars Thousig Jensen , a lawyer practising in GPE .

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

The applicant , her parents and CARDINAL siblings entered GPE on DATE without any travel / identification papers and requested asylum in that while they were living in the village GPE in GPE in DATE NORP men subjected them to a violent assault , which included rape of the applicant . The applicant and her family succeeded in fleeing to GPE and thereon to GPE .

On DATE ORG ) refused to grant the applicant asylum , a decision which was upheld on appeal by ORG ( PERSON ) on DATE . Both instances found it established that the applicant had been subjected to rape and violence in DATE , but found that the assault should be seen , not so much as a result of the applicant being NORP , but in connection with the situation at the relevant time in GPE . In this respect it was recalled that under the mandate of ORG , the ORG - led international ORG , ORG , being responsible for establishing and maintaining security in GPE , on DATE intervened in the conflict between NORP and NORP forces , and that subsequent thereto , for a short while , NORP armed groups took over specific areas .

ORG stated in addition , that presently the general security situation as to NORP in GPE had improved according to inter alia ORG ’s position paper of DATE , background no . CARDINAL , and ORG ’s and ORG ’s report on ethnic minorities , background no . CARDINAL .

Finally , although finding it established that the applicant was affected by the events in DATE to the detriment of her mental health , ORG did not find that a concrete danger existed that she would be subjected to persecution if returned . She was ordered to leave the country immediately .

On DATE the applicant requested that ORG ( NORP for PERSON , ORG ) grant her a residence permit either on humanitarian grounds pursuant to section CARDINAL b of LAW ( PERSON ) or in the alternative due to extraordinary circumstances pursuant to section CARDINAL c of LAW . In support thereof the applicant submitted medical reports from which it appeared that she suffered inter alia of headache . Also , the applicant submitted a statement of DATE by a psychologist , ORG , who found that the applicant was suffering from ORG , depression and personality disorder . By statement of DATE another psychologist , PERSON , found the applicant psychological anguished , sad , and restless , and in great need of treatment due to her traumatic war - experiences .

By decision of DATE ORG refused to grant the applicant a residence permit on humanitarian grounds , since the conditions for granting such under LAW was not fulfilled , notably since the applicant did not suffer from any serious physical or mental illness . ORG noted in that connection that ORG , depression and personality disorder were not considered to be illnesses , which alone could justify the granting of a residence permit on humanitarian grounds . Likewise , as regards subjective fear of returning to ones country of origin . The applicant was ordered to leave the country without delay .

On DATE the applicant submitted to the ORG a statement made by ORG on DATE , according to which subsequent to being refused a residence permit on humanitarian grounds the applicant had expressed strong thoughts of suicide . It appears that this document has not been submitted to the domestic authorities .

The applicant ’s application for a residence permit pursuant to section CARDINAL c of LAW was refused by ORG on DATE . No appeal was lodged against this decision with ORG .

LAW and GPE in GPE .

According to information provided by the Government , in DATE GPE evacuated a total of CARDINAL GPE , which were selected together with ORG . The applicant in the present case was not among those evacuees . She entered GPE herself in DATE . A “ FAC ” of DATE created the legal basis at domestic level for receiving displaced persons from GPE with a need for temporary protection . The LAW was repealed in DATE . At the same time a provision was inserted in LAW introducing the possibility of granting a residence permit to distressed persons from GPE assumed to need temporary protection ( now section CARDINAL e ( CARDINAL ) ) . A precondition for obtaining a residence permit under this provision is that the person in question must be assumed to need temporary protection in GPE and formerly held a residence permit pursuant to the “ GPE Emergency Act ” or has been registered as an asylum - seeker before DATE . The assessment whether applicants are eligible for a residence permit under section CARDINAL e ( CARDINAL ) of LAW is made on the basis of ORG recommendations . Thus , in accordance with the ORG recommendations it is possible to issue residence permits under LAW ) to persons - who formerly held a residence permit under LAW or who applied for asylum before DATE – and who can be referred to CARDINAL of the categories of “ chronically ill persons whose conditions requires specialised medical intervention of a type not yet available in GPE ” ; “ Persons with severe and chronic mental illness whose conditions requires specialised medical intervention of a type not yet available in GPE ” ; “ Severely handicapped persons ( including their caregivers ) whose wellbeing depends on a specialised support system not yet available in GPE ” ; “ Unaccompanied elderly persons who have no relatives or any other form of societal support in GPE ” ; and “ Separated children without relatives or caregivers in GPE , and for whom it is found not to be in the best interest to return to GPE ” . AppCARDINALications for a residence permit under section CARDINAL e ( CARDINAL ) of LAW are determined in the first instance by ORG and in the second instance by ORG .

The applicant in the present case is not covered by section CARDINAL CARDINAL ( e ) of LAW because she never held a residence permit under the “ GPE Emergency Act ” and she entered GPE after DATE . However - like asylum - seekers from other countries – she had the possibility of applying for asylum pursuant to section CARDINAL of LAW , ORG for a residence permit on humanitarian grounds pursuant to section CARDINAL b of the LAW , or for a residence permit due to extraordinary circumstances pursuant to section CARDINAL c of the Act .

Asylum is granted to aliens , who satisfy the conditions of LAW . Applications for asylum are determined in the first instance by ORG and in the second instance by ORG , which is an independent quasi - judicial body that is not subject to any instructions from ORG . Thus , ORG has no authority to decide applications for asylum . ORG are included in the background material of the asylum authorities in connection with the determination of concrete asylum cases .

The granting of a residence permit on humanitarian grounds pursuant to section CARDINAL b of the LAW is a discretionary decision , which according to practice may be granted to persons who do not satisfy the conditions of LAW , but who is suffering from very severe physical or mental illness ( unless the possibility of receiving the requisite medical assistance exists in the applicant ’s country of origin ) . Applications for a residence permit on humanitarian grounds cf . section CARDINAL b ( CARDINAL ) are determined by ORG .

A residence permit may be granted pursuant to section CARDINAL c of LAW on a discretionary basis , if due to extraordinary circumstances , there are strong grounds for granting such . AppCARDINALications for a residence permit under this section of the LAW are determined in the first instance by ORG and in the second instance by ORG .

According to LAW an alien whose application for a residence permit for GPE has been refused must leave the country . Furthermore , under LAW it is possible to provide financial assistance if the person in question returns without undue delay voluntary .

In connection with the forced return of aliens from GPE , UNMIK ( ORG in GPE ) is the relevant partner . In every case there is a close dialogue between the NORP National Commissioner of Police and UNMIK . Firstly the NORP National Commissioner of Police notifies UNMIK about the return to GPE of GPE whose applications for a residence permit in GPE have been refused . Such notifications state the time of the individual ’s departure from GPE and entry into GPE and inform of decisions made by the NORP authorities and the individual ’s personal situation , including his or her home town in GPE , the languages mastered by the individual and where his or her family members are staying . It also appears from the notification if the individual has been expelled due to crime . The notifications also state particulars on the individual ’s health status . This notification procedure was first established at a meeting held in GPE from CARDINAL to DATE between officials of ORG , ORG and UNMIK . The notification procedure was confirmed and expanded at a meeting in GPE on DATE between a delegation of high officials from the immigration authorities and UNMIK , who agreed that UNMIK will be provided with extended information , especially concerning the mental status of GPE who are non - voluntarily sent back to GPE in order to support UNMIK in its efforts to solve its task . Such information will be available to UNMIK by offering the GPE in question a voluntary medical status report prior to the return to GPE . ORG Commissioner of Police has presented to UNMIK a number of PERSON whose applications for a residence permit in GPE have been refused for which reason they have had to leave GPE . In some cases PERSON objected to the return of the persons in question . In such situations the NORP National Commissioner of Police has suspended the return until further notice .

In the present case , the NORP National Commissioner of Police has not yet contacted UNMIK because the forced return of the applicant has not been planned yet . Normally a forced return takes quite some time , not CARDINAL or three months .

Relevant international materials

With regard to the current security situation in GPE , the following statements/ findings are of particular relevance :

The Secretary General on ORG in GPE stated in his report of DATE covering the activities of UNMIK and the developments in GPE , GPE , and GPE among other things that given the continued violence , harassment and discrimination faced by minorities , achieving sustainable minority returns to GPE was difficult , time - consuming and resource - intensive ;

In his report of DATE he stated inter alia that incidents of violence and crimes against minorities continued to be a cause for concern within GPE ;

In his report of DATE he stated inter alia that despite setbacks resulting from recent violent incidents involving GPE NORP victims , the overall rate of returns continued to accelerate during the reporting period . Over CARDINAL displaced persons had returned so far that year to areas where they were a minority ( including CARDINAL ORG , CARDINAL ORG /Egyptians , CARDINAL NORP , CARDINAL PERSON and CARDINAL GPE NORP ) . Funding expected from several major donors had been provided in GPE and work on a number of returns projects had begun in earnest , including the return of GPE NORP to GPE ( NORP region ) and LOC ( NORP region ) , and ORG NORP returns to PERSON ( GPE ) and GPE town . The heightened level of security within ORG and other minority communities had not resulted in the cancelling of any returns project , but it had led to numerous postponements of returns activities , at a stage in DATE where such delays may mean that returns are not possible until DATE . It was also considered likely to have a dampening effect on ORG return .

The Tenth Assessment of the Situation of Ethnic Minorities in GPE of DATE , conducted jointly by ORG and the ORG , stated that minorities continue to face varying degrees of harassment , intimidation and provocation , as well as limited freedom of movement , and that considering the overall situation described in the report , the changes noted during the reporting period were not yet fundamental enough to conclude that conditions would exist for large scale return of ethnic minorities in the near future , underscoring the continuing need for international protection for members of ethnic communities , in particular GPE NORP , GPE and NORP ;

The UNHCR Position Paper on the continued Protection Needs of individuals from GPE of DATE stated that especially GPE NORP and GPE , but also GPE and NORP should continue to benefit from international protection in countries of asylum . ORG stressed that return of these minorities should take place on a strictly voluntary basis and be based on fully informed individual decisions . Any such voluntary return movements should be properly coordinated , and re - integration should be supported through assistance to ensure sustainability . ORG , GPE and NORP individuals or families should not be forced or induced to return to GPE .

The First Vice - President of ORG on LAW , recommended in his mission report of DATE “ ORG and GPE ” for ORG , inter alia that GPE asylum seeker / returnees ( from LOC ) , who fled GPE , should not be returned to GPE unless they wish to return and they are advised by PERSON and UNCHR that it is safe for them personally to return to their homes , and

In its report of DATE and GPE ( GPE ) “ Prisoners in our own homes ” : ORG concerns for the human rights of minorities in GPE - Amnesty International urged inter alia host countries not to end international protection for all minority refugees from GPE and ensure that refugees still in need of protection were not subject in any way to pressure or inducement to “ voluntarily return ” . ORG considered that the forcible return of members of minority groups to GPE would be a violation of the principle of non - refoulement and place minority individuals at risk .

It follows from a “ Memorandum of Understanding ” between the Federal Minister of the Interior of GPE and GPE the Secretary - General of ORG for GPE of DATE that CARDINAL members of ethnic minorities from GPE are required to leave GPE . It was agreed that certain members of specific ethnic minority groups were no longer in need of international protection and could therefore be returned to GPE , as from DATE . In DATE GPE would return CARDINAL persons . This figure would include members of the NORP , NORP , PERSON and GPE minority communities , as well as GPE and NORP minorities . As to the latter CARDINAL groups of minorities , they would be returned depending on the results of an individualised screening process performed by UNMIK . Members of the NORP and GPE communities would not be returned in DATE .


Violation of Art. 6-1;Violation of P1-1;Non-pecuniary damage - financial award

On DATE the applicant was called up by the military authorities to take part in emergency operations at the site of the GPE nuclear plant disaster . The applicant was engaged in the operations until CARDINAL DATE and , as a result , suffered from extensive exposure to radioactive emissions .

In DATE , following an expert opinion which established the link between the applicant 's poor health and his involvement in the GPE events , the applicant was awarded compensation .

In DATE the applicant brought proceedings against ORG ( ORG социальной защиты населения по г. Шахты ) as the compensation had not been paid . On DATE ORG ( Шахтинский городской суд ) found in the applicant 's favour and awarded him CARDINAL [ The amount is indicated without regard to the denomination in DATE . In accordance with LAW “ on LAW of CARDINAL DATE , CARDINAL “ old ” roubles became CARDINAL “ new ” rouble from CARDINAL DATE ] NORP roubles ( ORG ) of the outstanding compensation and an equal sum in the form of a penalty .

On DATE ORG ( PERSON судебных приставов г. Шахты ) instituted enforcement proceedings for recovery of the penalty awarded on DATE .

In DATE the applicant brought an action against ORG to challenge a reduction in the amount of the DATE payment and to recover the unpaid compensation . On DATE ORG restored the original amount of the compensation and ordered ORG to make DATE compensation payments of ORG CARDINAL with subsequent indexation . The court also ordered the payment of outstanding moneys totalling ORG .

On DATE ORG instituted proceedings to enforce the judgment of CARDINAL DATE .

On DATE ORG notified the applicant that even though the proceedings to enforce the judgment of DATE were pending , the payments to the applicant could not be made because ORG was underfunded .

On DATE ORG ( ORG управление юстиции PERSON области ) notified the applicant that the CARDINAL judgments could not be complied with because the defendant did not have sufficient funds .

Following a complaint by the applicant about the failure to enforce the judgments , on CARDINAL DATE the prosecutor of PERSON informed the applicant that ORG was following the established enforcement procedure but had been hampered by the defendant 's lack of proper funding .

On DATE the Rostov ORG of Justice informed the applicant that funds to pay the GPE compensation had been allocated from the federal budget and that payment would be made upon receipt of an appropriate transfer from ORG .

On DATE ORG ( PERSON области ) informed the applicant that the non - enforcement could in no way be attributed to ORG , and that the debts would be discharged as soon as proper allocations had been made from the federal budget .

On DATE the Rostov ORG of Justice notified the applicant that compensation of GPE victims would be financed from the federal budget .

On DATE ORG informed the applicant that it was impossible to enforce the judgments in his favour because ORG труда и социального развития PERSON области ) was underfunded .

On DATE the PERSON prosecutor informed the applicant that even though ORG had recalculated the amount of compensation due to the applicant in accordance with the judgment of CARDINAL DATE , the payments had not been made because of lack of funding .

On DATE ORG ordered the indexation of the amount of the penalty awarded on DATE , which had still not been paid to the applicant . An additional writ of execution for the amount of ORG was issued .

Following a decision taken by ORG , on DATE ORG paid the applicant the outstanding debt of ORG CARDINAL,CARDINAL.CARDINAL .

According to information provided by the social security service on DATE , the compensation to be paid to the applicant for the period DATE and DATE has been assessed at RUR DATE .

Section CARDINAL of LAW of DATE provides that a bailiff 's order on the institution of enforcement proceedings must fix a time - limit for the defendant 's voluntary compliance with a writ of execution . The time - limit may not exceed DATE . The bailiff must also warn the defendant that coercive action will follow , should the defendant fail to comply with the time - limit .

Under LAW of the PERSON , the enforcement proceedings should be completed within DATE of the receipt of the writ of enforcement by the bailiff .


David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza

The applicant , PERSON , is a NORP national who was born in DATE and lives in GPE . She is represented before the ORG by Mr T. Gertner , a lawyer practising in Bad LOC .

A summary account of historical events in which the present application originated can be found in the ORG ’s decision on admissibility in the case of ORG . PERSON GPE ( see ORG . PERSON GPE DATE . ) , no . ORG , DATE , § § DATE , ORG CARDINAL- ... ) .

The applicant ’s family owned QUANTITY of agricultural land in FAC and QUANTITY of land in PERSON . This region before and during the Second World War belonged to ORG . After the defeat of GPE at the end of the war , when the border between GPE and GPE was drawn along the PERSON - Neisse line , it was included in the territory of GPE ( see ORG . PERSON , cited above , § CARDINAL ) .

According to the applicant , on DATE NORP militiamen came to their house and told them that they were to be deported at once . They were given TIME to pack the barest personal essentials . They marched for DATE towards the Oder . They eventually arrived in ORG .

The applicant and other members of her family have still not been allowed to return to their home and have been refused restitution of their property .

A detailed description of the relevant international and domestic law is set out in the above - mentioned case of ORG . PERSON GPE ( ibid . § § CARDINAL - CARDINAL ) .