Violation of Art. 5-3;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award

The applicant was born in DATE and lives in GPE , GPE . He is represented before the ORG by PERSON , a lawyer practising in ORG , GPE .

On DATE ORG ( Sąd Rejonowy ) ordered that the applicant be detained on remand in view of the reasonable suspicion that he had committed armed robbery . The court considered that the applicant ’s detention was justified in view of the gravity of the charges against him . There was also a risk that he could go into hiding .

On DATE the applicant asked for release from detention . ORG ( Prokurator Rejonowy ) refused on CARDINAL DATE . He considered that there was a reasonable suspicion that the applicant had committed the offence in question and a risk that he might obstruct the proper conduct of the proceedings . He found also that there were no grounds on which to release the applicant , as defined in LAW . Furthermore , he underlined the gravity of the charges brought against him .

On CARDINAL DATE the applicant was indicted on CARDINAL counts of armed robbery committed together with CARDINAL accomplices before ORG ( PERSON ) .

On DATE ORG ordered that the applicant be held in custody until DATE . The court repeated the reasons previously given for his detention .

On DATE ORG referred the case to ORG , considering that that court had jurisdiction over the matter . ORG disagreed and , on DATE , referred the case to ORG ( Sąd Apelacyjny ) for a ruling determining which court was to deal with it . On DATE ORG ordered that the case be tried before ORG .

The applicant ’s detention was further extended on DATE and DATE , despite the applicant ’s requests for release .

The first hearing was to be held on DATE but the trial was adjourned for procedural reasons .

During the proceedings the applicant ’s detention was prolonged on several occasions . The last decision was taken on DATE , when ORG ordered that he be held in custody until DATE .

The applicant made many unsuccessful applications for release and appealed , likewise unsuccessfully , against the decisions prolonging his detention . He maintained that his detention was excessive and that other measures , such as bail or police supervision could secure the proper conduct of the trial . All decisions dismissing his applications repeated the same grounds for the applicant ’s detention : the reasonable suspicion against him and the severity of the anticipated sentence and the fear that he might tamper with evidence .

On DATE ORG convicted the applicant as charged and sentenced him to CARDINAL years’ imprisonment .

ORG upheld the first - instance judgment on DATE .

On DATE the Law of DATE on complaints about a breach of the right to a trial within a reasonable time ( LOC o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki ) ( “ the CARDINAL Act ” ) entered into force .

The applicant did not lodge a complaint under LAW .

The Code of Criminal Procedure of DATE , which entered into force on DATE , defines detention on remand as CARDINAL of the so - called “ preventive measures ” ( środki zapobiegawcze ) . The other measures are bail ( poręczenie majątkowe ) , police supervision ( dozór policji ) , guarantee by a responsible person ( poręczenie osoby godnej zaufania ) , guarantee by a social entity ( poręczenie społeczne ) , temporary ban on engaging in a given activity ( zawieszenie oskarżonego w określonej działalności ) and prohibition to leave the country ( zakaz opuszczania kraju ) .

Article CARDINAL § CARDINAL sets out the general grounds for imposition of the preventive measures . That provision reads :

“ Preventive measures may be imposed in order to ensure the proper conduct of proceedings and , exceptionally , also in order to prevent an accused ’s committing another , serious offence ; they may be imposed only if evidence gathered shows a significant probability that an accused has committed an offence . ”

Article CARDINAL lists grounds for detention on remand . It provides , in so far as relevant :

“ CARDINAL . Detention on remand may be imposed if :

( CARDINAL ) there is a reasonable risk that an accused will abscond or go into hiding , in particular when his identity can not be established or when he has no permanent abode [ in GPE ] ;

( CARDINAL ) there is a justified fear that an accused will attempt to induce [ witnesses or co - defendants ] to give false testimony or to obstruct the proper course of proceedings by any other unlawful means ;

NORP If an accused has been charged with a serious offence or an offence for the commission of which he may be liable to a statutory maximum sentence of CARDINAL CARDINAL years’ imprisonment , or if a court of first instance has sentenced him to CARDINAL CARDINAL years’ imprisonment , the need to continue detention to ensure the proper conduct of proceedings may be based on the likelihood that a severe penalty will be imposed . ”

The Code sets out the margin of discretion as to the continuation of a specific preventive measure . Article CARDINAL reads , in so far as relevant :

“ CARDINAL . Detention on remand shall not be imposed if another preventive measure is sufficient . ”

Article CARDINAL , in its relevant part , reads :

“ CARDINAL . If there are no special reasons to the contrary , detention on remand shall be lifted , in particular if depriving an accused of his liberty would :

( CARDINAL ) seriously jeopardise his life or health ; or

( CARDINAL ) entail excessively harsh consequences for the accused or his family . ”

The DATE Code not only sets out maximum statutory time - limits for detention on remand but also , in LAW , lays down that the relevant court – within those time - limits – must in each detention decision determine the exact time for which detention shall continue .

Article CARDINAL sets out time - limits for detention . In the version applicable up to DATE it provided :

“ CARDINAL . Imposing detention in the course of an investigation , the court shall determine its term for a period not exceeding DATE .

The whole period of detention on remand until the date on which the first conviction at first instance is imposed may not exceed DATE .

The court of appeal within whose jurisdiction the offence in question has been committed may , on application made by the court before which the case is pending or , at the investigation stage , on application made by ORG , prolong detention on remand for a further fixed period exceeding the periods referred to in DATE , when it is necessary in connection with a stay of the proceedings , a prolonged psychiatric observation of the accused , a prolonged preparation of an expert report , when evidence needs to be obtained in a particularly complex case or from abroad , when the accused has deliberately prolonged the proceedings , as well as on account of other significant obstacles that could not be overcome . ”

The CARDINAL Act lays down various legal means designed to counteract and/or redress the undue length of judicial proceedings .

Section CARDINAL of the CARDINAL Act reads , in so far as relevant :

Section CARDINAL reads , in so far as relevant :

“ CARDINAL . A complaint about the unreasonable length of proceedings shall be lodged while the proceedings are pending . ... ”

Section CARDINAL provides for measures that may be applied by the court dealing with the complaint . It reads , in so far as relevant :

“ CARDINAL . The court shall dismiss a complaint which is unjustified .

NORP If the court considers that the complaint is justified , it shall find that there was an unreasonable delay in the impugned proceedings .

At the request of the complainant , the court may instruct the court examining the merits of the case to take certain measures within a fixed time - limit . Such instructions shall not concern the factual and legal assessment of the case .

NORP If the complaint is justified the court may , at the request of the complainant , grant ... just satisfaction in an amount not exceeding PLN CARDINAL,CARDINAL to be paid by ORG . If such just satisfaction is granted it shall be paid out of the budget of the court which conducted the delayed proceedings . ”

Section CARDINAL lays down transitional rules in relation to the applications already pending before the ORG . It reads , in so far as relevant :

“ CARDINAL . Within DATE after the date of entry into force of this law persons who , before that date , had lodged a complaint with ORG ... complaining of a breach of the right to a trial within a reasonable time guaranteed by LAW ... , may lodge a complaint about the unreasonable length of the proceedings on the basis of the provisions of this law if their complaint to ORG had been lodged in the course of the impugned proceedings and if the ORG has not adopted a decision concerning the admissibility of their case .

On DATE ORG ( PERSON ) adopted a resolution ( no . III SPP CARDINAL/CARDINAL ) in which it ruled that while LAW produced legal effects as from the date of its date of entry into force ( DATE ) , its provisions applied retroactively to all proceedings in which delays had occurred before that date and had not yet been remedied .


Preliminary objection dismissed (locus standi);No Violation of Art. 8;Remainder inadmissible

Alvina Gyulumyan;Elisabet Fura;Ineta Ziemele;Josep Casadevall;Luis López Guerra

The first applicant , GPE , is a NORP national who was born in DATE and lives in PERSON . The first applicant is the father of the second applicant , GPE

The first applicant lived in an unmarried partnership ( zunajzakonska skupnost ) with FAC for DATE . On DATE their daughter , the second applicant , was born .

Following the separation of the first applicant and FAC in DATE , the second applicant lived with O.Č. , her mother .

In DATE and CARDINAL O.Č. was suffering from a mental disorder and was consequently treated in a psychiatric hospital in PERSON . While she was hospitalised the first applicant took care of the second applicant .

On DATE O.Č. brought an action in ORG ( Okrožno sodišče v PERSON ) seeking sole custody of the second applicant .

On DATE the court requested ORG ( Center za socialno delo PERSON ) to deliver an opinion establishing with which parent the child 's interests would be better protected . The court received the report on DATE . ORG informed the court that the first applicant and O.Č. had not come to an agreement concerning the custody issue before DATE , the date the action was brought to the court by ORG It also observed that O.Č. had been taking care of the second applicant properly and that the first applicant had not expressed any objection to the second applicant 's staying with her mother , on condition that he was granted contact rights . ORG also found that PERSON was not preventing contact between the applicants .

On DATE the court received an additional report from ORG . The latter informed the court that the first applicant wished to have joint custody of the second applicant . However , he would agree for O. Č. to be granted sole custody only if O. Č. informed him DATE about how the second applicant was . On this occasion FAC also informed the court that a report had been requested from the second applicant 's school as well as from O. ORG 's psychiatrist . In this connection , on DATE , the court received a report from O. Č. 's psychiatrist , stating that O. Č. was refusing treatment . The psychiatrist further considered that the question of capacity to take care of the second applicant was very complex and that therefore only an expert in psychiatry could compile a credible report .

Also on DATE the court held a hearing and decided to appoint an expert in psychiatry .

On DATE the first applicant requested to be exempted from paying the court fees . On DATE the court upheld the first applicant 's request .

On DATE the court appointed an expert in psychology , D.T. , in order to determine which parent should be granted custody .

Subsequently , on DATE , ORG requested that the expert D.T. be relieved of his duties since he had previously treated her medically .

On DATE the court appointed a new expert in clinical psychology , M.G.V.

On DATE the court received a letter from ORG 's psychiatrist , stating that O.Č. , who had been suffering from a productive psychosis , had been refusing treatment .

Relying on that letter , the first applicant , on DATE , requested that an interim contact order be issued pending the outcome of the main civil proceedings .

On DATE the expert M.G.V. submitted her report . Assisted by a psychiatrist who was invited to participate in the examination process , the expert observed that both parents suffered from a mental disorder . She concluded that custody could nevertheless be granted to ORG on condition that she received appropriate medical treatment , while regular contact should be granted to the first applicant .

Also on DATE the court requested ORG to inform it about the progress on the contact agreement between the first applicant and LOC

On DATE ORG submitted a report in which it informed the court that the first applicant had , on DATE , requested a formal contact arrangement , claiming that ORG had , since DATE , prevented him from having contact with the second applicant . Subsequently , ORG had prepared a draft agreement but ORG had refused to sign it , claiming that the court would in any event arrange contact rights in contentious civil proceedings . In addition , ORG informed the court that O.Č. and the second applicant had recently moved out of their flat and had been living in special sheltered accommodation for homeless mothers ( materinski dom ) .

On DATE , further to the above - mentioned report by ORG and relying on the fact that the second applicant had been living in sheltered accommodation , the first applicant again requested that an interim measure be ordered granting him regular contact with the second applicant .

Meanwhile , on DATE , the court gave a decision concerning the expert 's fees .

On DATE the first applicant brought a counterclaim , seeking sole custody of the second applicant and child maintenance . He also proposed that contact should be granted between FAC and the second applicant .

On DATE the first applicant cancelled the power of attorney in respect of his lawyer .

On DATE the first applicant , represented by a new lawyer , lodged preliminary written submissions which modified and extended his claim seeking sole custody of the second applicant and child maintenance , granting , on the other hand , regular contact in respect of O.Č. As an alternative , he sought regular contact with the second applicant and also requested that other relatives have contact with the second applicant . He moreover asked that an interim measure be taken in respect of all his requests .

On DATE the court held a hearing . Subsequently , the court gave a decision , finding that the first applicant 's request concerning contact between the second applicant and other relatives as well as his request for an interim measure to that effect should have been considered in non - contentious proceedings . That part of the claim was thus declared to be outside the court 's jurisdiction .

Meanwhile , on an undetermined date LOC lodged a criminal complaint against the first applicant alleging sexual abuse of the second applicant . It seems that , also on an undetermined date , the first applicant lodged a criminal complaint against FAC for neglecting the child .

On DATE the court requested ORG 's psychiatrist to inform it whether ORG was receiving treatment . It further requested ORG to inform it as regards ORG 's state of health and also the fact that she was living in sheltered accommodation for homeless mothers . The court also requested ORG to update it on the progress of the criminal proceedings instituted against the first applicant .

Subsequently , on DATE , ORG informed the court that an expert would be appointed in order to determine whether the second applicant had been sexually abused .

On DATE the court received a report from ORG 's psychiatrist stating that O.Č. had been refusing treatment . The psychiatrist also observed that she had been calmer since she and the second applicant had been living in sheltered accommodation .

On DATE the first applicant lodged preliminary written submissions urging the court to order the interim measure sought on DATE .

On DATE the court rejected the first applicant 's request for an interim measure in respect of custody and child maintenance as well as his alternative claim to have contact granted with the second applicant ( see paragraph CARDINAL above ) . Nevertheless , the court , of its own motion and in different terms , granted contact between the CARDINAL applicants ( each DATE for TIME ) .

On DATE the first applicant appealed against this decision .

On DATE the court received a report from ORG in which the latter observed , inter alia , that contact between the applicants was in the child 's best interest . It further observed that contact was taking place in accordance with the court decision of DATE .

On DATE ORG ( PERSON v PERSON ) quashed the first - instance court 's decision concerning the interim order and remitted the case for re - examination .

On DATE and DATE and DATE the first applicant urged the court to re - examine the case and order the requested interim measure .

Meanwhile , on DATE , O.Č. lodged a preliminary written submission in which she informed the court that her state of health had improved . As a result , she requested the court to again appoint an expert or to order an additional report to be drawn up . In addition , she submitted that , since criminal proceedings had been initiated against the first applicant , who was suspected of sexual abuse of a minor , he should not be trusted with long - term custody of the second applicant .

On DATE the court scheduled a hearing . On DATE it requested ORG to inform it , inter alia , about the conditions in which the first applicant was living , ORG 's state of health , the second applicant 's performance at school , and also to interview the second applicant . The court requested a swift response . In addition , the court requested PERSON psychiatrist to provide information on her treatment and inquired at ORG about the criminal proceedings instituted against the first applicant . ORG responded on DATE . In its report it submitted that investigating measures against the first applicant for sexual assault were still in progress . They also informed the court about criminal proceedings instituted against FAC for fraud and forgery of documents . ORG responded on DATE , observing that the second applicant had expressed the wish to live with her mother . ORG 's psychiatrist responded on DATE stating that ORG was continuing with her treatment and that her health had not worsened . The psychiatrist also expressed the view that O.Č. was a good mother and was emotionally attached to the second applicant .

NORP In the meantime , on DATE the court held a hearing and requested the ORG clinic ( NORP klinika ) to appoint an expert in psychiatry . Furthermore , the court issued a decision whereby it rejected the first applicant 's request for an interim measure concerning custody and child maintenance but upheld his subsidiary request to have contact with the second applicant .

The decision was in the relevant part worded as follows .

“ The child may see her father DATE , DATE and DATE after school . Her father is to collect her from her mother 's place at TIME and be with her until TIME

The child may also see her father every other DATE ; her father is to collect her from her mother 's place at TIME and be with her until TIME

The child shall spend DATE with her mother , DATE ( prvomajske počitnice ) with her father , the DATE ( krompirjeve počitnice ) with her mother , DATE , from DATE to DATE , with her father and from CARDINAL DATE to DATE with her mother .

During DATE the child shall spend DATE with her father ( DATE in DATE and DATE in DATE ) ”

On DATE lodged a preliminary written submission in which she submitted to the court a lease contract for the new apartment in which she was now living with the second applicant .

On DATE , further to the court 's request , ORG informed the court that they had dealt with several matters concerning the second applicant . For example , O.Č. had alleged that the second applicant had been kidnapped when she was taken out of kindergarten by the first applicant . On another occasion she expressed the fear that the first applicant , who wanted to take the second applicant for a walk , would take her to an unknown destination . As to the first applicant , he has twice alleged that O.Č. took the first applicant away without telling him where .

On DATE and DATE the first applicant lodged preliminary written submissions , in which he requested to be informed of the name of the expert appointed by the ORG clinic ( see paragraph CARDINAL above ) .

On DATE the court received a report from ORG in which the latter observed that ORG 's apartment was adequately furnished and clean .

On DATE the first applicant requested the court to fine O.Č. , since she had not complied with the court 's decision of DATE in that she had prevented contact DATE and DATE . On DATE O.Č. lodged a preliminary written submission concerning the first applicant 's allegations in this regard . She claimed that the first applicant himself did not want to have contact with the second applicant .

Further to the first applicant 's request to fine O.Č. , the court requested ORG to draw up a report concerning the execution of the first applicant 's contact rights . The report was submitted on DATE . ORG informed the court that it did not keep any official records in this regard . However , the first applicant had appeared on their LOC , claiming that on DATE the contact had not taken place . Furthermore , ORG informed the court that O.Č. had been counselled by a social worker and that she had been trying hard to ensure the healthy development of the second applicant . It appears from the report that during counselling O.Č. had told the social worker that the second applicant had not spent the whole period of DATE ( prvomajske počitnice ) with the first applicant . On another occasion , on DATE , ORG alleged abusive behaviour by the first applicant towards the second applicant . It seems that the first applicant took the second applicant to the hairdresser , where they cut her hair . On DATE informed ORG that the contact had taken place as agreed , but that the second applicant did not wish to spend TIME at the first applicant 's place . ORG also pointed out that fining ORG would be an unnecessary burden on ORG 's financial situation .

On DATE the first applicant lodged preliminary written submissions in which he stated that FAC was suffering from a mental illness and therefore had a distorted sense of reality . He again sought sole custody of the second applicant and requested the court to urge the appointed expert to submit a report .

On DATE the first applicant for the second time requested the court to fine O.Č. as she had again prevented contact , on CARDINAL occasions DATE and DATE .

DATE . On DATE the appointed expert in clinical psychology , ( ORG ) , submitted his report . He found that the second applicant wished to have unrestricted contact with the first applicant and that any change in existing circumstances would complicate the situation .

On DATE the court again requested ORG and ORG to provide similar information to that which had been requested on DATE and DATE ( see paragraphs CARDINAL and CARDINAL above ) . In addition , the court asked ORG to interview the second applicant with a view to ascertaining where would she want to live and whether she would want to have contact with the first applicant .

On DATE ORG informed the court that the request for a criminal investigation in connection with the alleged sexual abuse of the second applicant had been dismissed , but ORG had lodged an appeal . All the charges against O.Č. concerning neglect of the child were dropped .

On DATE ORG submitted its report concerning CARDINAL interviews with the second applicant . During the first interview , the second applicant expressed the wish to live with her mother and to have regular contact with the first applicant , as she loved both her parents . The second interview was not successful , since the second applicant left the room in tears . ORG concluded that the second applicant was vulnerable and anxious ; a psychological assessment would therefore be helpful to her . Further , ORG informed the court that the second applicant had been absent from school on several occasions . As regards ORG 's state of health , it observed that according to the LOC 's psychiatrist , her state of health had not worsened in DATE since she had been following the treatment .

On DATE the first applicant lodged preliminary written submissions . He requested the court to explain why an expert in psychology had been appointed although the court had decided to appoint a psychiatrist .

On DATE the court held a hearing . It decided to transfer the file again to the ORG clinic , which submitted a report of an expert in psychology , in contradiction to the court 's decision . On DATE the court gave a decision ordering the ORG clinic to appoint a psychiatrist . However , on DATE , the ORG clinic informed the court that an expert in clinical psychology would be appointed . Further to the court 's additional request , the ORG clinic , on CARDINAL DATE , finally appointed a psychiatrist , M.Ž.T.

On DATE the court again requested ORG to enquire about the second applicant , in particular whether she was absent from school . In its response of CARDINAL DATE ORG observed that the second applicant was no longer absent from school and that O.Č. was taking good care of her . In addition , it submitted that ORG had bought a new apartment and that , according to ORG , the first applicant had not paid child maintenance for DATE .

In the meantime , on DATE the first applicant lodged a supervisory appeal under LAW on the Protection of the Right to a Trial without Undue Delay ( “ the CARDINAL Act ” ) in order to accelerate the proceedings .

On DATE the expert ORG submitted her report . She made a synthesis of ORG 's state of health : the latter had been suffering from a paranoid psychosis and who for that reason had been hospitalised CARDINAL times DATE . The expert also observed that O.Č. had been refusing treatment for a long time and was not aware of her medical condition . In ORG 's interview the latter stated that she had not allowed the second applicant to have contact with the first applicant from DATE on , as the second applicant was afraid of her father . The expert further examined the second applicant , who told her that she liked spending time with the first applicant . The first applicant did not attend the interview with the psychiatrist . After the examination , the expert concluded that O.Č. had been taking good care of the second applicant , who could be in danger only if she was exposed to the active phase of ORG 's illness . However , if O.Č. followed her treatment the prognosis would be good for her . As far as the contact between the applicants is concerned she established that they should continue to have contact as they have up to now , or even spend more time together if the second applicant so wished . However , in the expert 's view , the first applicant should be more creative and should share more activities with the second applicant .

On DATE the court again requested ORG and ORG 's psychiatrist to provide similar information to that which had been requested on DATE ( see paragraph CARDINAL above ) . In addition , the court asked ORG to make a recommendation as to which of the parents should be awarded custody and to establish whether the contact the non - custodial parent , whichever that may be , would have with the second applicant would be in the child 's best interests . ORG report of CARDINAL DATE did not contain an answer as to which of the parents should be awarded custody . It stated that the opinion in this connection should have relied on the report concerning ORG 's state of health .

On DATE the court was informed that criminal proceedings had been brought against the first applicant for endangering public safety and against FAC for fraud .

On DATE the president of the court , relying on section CARDINAL , subsection CARDINAL , and section CARDINAL , subsection CARDINAL , of LAW , responded to the supervisory appeal ( see paragraph CARDINAL above ) , stating that a hearing would be held within DATE of receipt of the supervisory appeal , namely on DATE . In the meantime , on DATE , the court called off that hearing since ORG 's attorney was not able to keep his appointment .

Also on DATE the first applicant lodged preliminary written submissions . He requested an interim measure granting him custody to be issued immediately , while the contact between FAC and the second applicant be ceased or carried out under supervision .

On DATE the court received a report from ORG 's psychiatrist , which revealed that O.Č. had been seeing her regularly and that the medical treatment she had been following had no impact on her cognitive or mental capacities and had therefore not impeded her relations with the second applicant .

On DATE the court was informed that the first applicant had been told by ORG that it could not ensure that contact would take place in the way the court had determined it should . Subsequently , ORG lodged a written preliminary submission , emphasising , inter alia , that she had not been preventing contact ; but that it was rather the second applicant who had refused to have contact with the first applicant .

On DATE the ORG 's psychiatrist informed the court that LOC 's mental illness seemed to be developing further and that she had been again refusing treatment .

In the meantime , the court scheduled an informal interview with the second applicant for DATE . However , the interview was adjourned sine die at the first applicant 's request as the second applicant was in a state of shock owing to her mother 's placement in a mental institution DATE before the interview was due to take place . Subsequently , the court requested the mental institution where O.Č. had been placed to inform it as to how long the treatment would take and about her state of health when she was admitted to the hospital . The hospital was also requested to give an opinion as to whether O.Č. was capable of caring for the second applicant , given her state of health before she was admitted to hospital .

The hearing scheduled for CARDINAL DATE was adjourned because the first applicant fell ill .

NORP However , later on DATE and outside the hearing , the court interviewed the second applicant . The latter told the court that she did not like to spend time with the first applicant because there were no toys at his place , and that she did not want to stay with him while PERSON was hospitalised . She preferred staying with her grandmother or her older brother . She also said that after the first applicant took her to the hairdresser to have her hair cut , she had refused to see him on CARDINAL occasions . She was however willing to see him in future in order to ensure contact . Further to the interview , the court requested ORG to find a third person willing to step in as a foster parent as well as to prepare the second applicant psychologically for this possibility .

DATE . In the meantime , on CARDINAL DATE , ORG was released from the hospital .

On DATE the court requested the expert , ORG , to draw up an additional report . The expert was asked to interview the first applicant and to determine whether it would be in the child 's best interest to award him custody . The court also requested the expert to invite in the examination process an expert in psychology who should examine and interview the second applicant . In its request the court emphasised that the matter was very urgent .

On DATE the expert ORG submitted an additional report by which she informed the court that the first applicant had refused to appear at the interview . She also observed that the second applicant was emotionally attached to FAC Taking into consideration ORG 's state of health and the second applicant 's attachment to her mother , the expert did not advocate placing the second applicant in foster care . She recommended that the second applicant stay with ORG and be cared for by the first applicant during acute episodes of FAC 's illness .

The hearing scheduled for CARDINAL DATE was called off due to the fact that the expert in psychology had not yet been able to examine the second applicant .

On DATE ORG submitted a supplementary report to the one submitted on DATE ( see paragraph CARDINAL above ) and informed the court that O.Č. had in the meantime been examined by her psychiatrist , who had observed a deterioration in LOC 's state of mental health but however had the impression that O.Č. was willing to follow the treatment . ORG also informed the court that the first applicant had failed to appear at the interview scheduled to determine whether he could take care of the second applicant or whether the second applicant should rather be put in foster care , to which O.Č. was not opposed . Having regard to the fact that the first applicant refused to appear at the interview , that he had been preventing the second applicant from being included in the psychological assessment , and that ORG 's health was not stable , ORG concluded that the second applicant should preferably be put in foster care .

In DATE , an expert in psychology , T.P. , who had been invited to join the examination process ( see paragraph CARDINAL above ) , experienced difficulties in interviewing the second applicant , as O.Č. had twice failed to keep appointments .

On DATE the first applicant lodged preliminary written submissions contesting the expert reports from DATE and CARDINAL DATE ( see paragraphs DATE and DATE above ) and requested that an interim measure be ordered granting him custody of the second applicant .

The hearing scheduled for DATE was called off because the first applicant fell ill . The court scheduled a new hearing for DATE .

DATE . On DATE O.Č. appeared at the court , stating that she had wanted to take the second applicant to the assessment but the first applicant had prevented her from doing so and had taken the second applicant to school .

On DATE ORG informed the court that the person who had been summoned to the hearing scheduled for DATE could not attend it due to an accident . The court immediately requested ORG to inform it who was replacing her in the case .

On DATE the court again requested PERSON 's psychiatrist to inform it whether she had been following the treatment and about her current state of health . The court also requested information concerning the criminal complaint lodged against the first applicant by FAC for having the second applicant 's hair cut . On DATE ORG informed the court that the charges against the applicant had been dropped , as the request for prosecution made by ORG had been lodged out of time . ORG 's psychiatrist responded on DATE . In her letter she observed that ORG 's state of health had worsened since she had moved to a new apartment , where she constantly felt threatened .

The second applicant was again invited to attend an interview with the expert T.P. , scheduled for DATE . However , the second applicant again failed to appear . Subsequently , the expert suggested interviewing the first applicant to establish whether he understood the role of a parent and the needs of a growing child , as well as to make a personal assessment . The expert also informed the court that he would not be able to attend the hearing scheduled for CARDINAL DATE .

On DATE the court held a hearing at which the parties concluded a temporary settlement of the case . The first applicant was granted provisional custody of the second applicant pending the outcome of the proceedings , while O.Č. was granted regular DATE contact .

On DATE the expert ORG , who had interviewed the first applicant in the meantime , submitted an additional psychiatric report , observing that it would be in the second applicant 's best interest to have contact with both parents , as O.Č. did not seem to be reliable enough due to her illness , while the first applicant 's personal characteristics made him unsuitable to raise a DATE traumatised child .

Further to the interview with the second applicant on DATE , the expert ORG submitted a report . He observed that the second applicant 's best interests would be ensured by placing her in foster care , while retaining for both parents the opportunity to have contact with her .

On DATE the court appointed a special representative to the second applicant ( for the appointment of a special representative , see “ Relevant domestic law ” below , LAW , section CARDINAL ) – hereinafter “ the special representative ” .

On DATE the court requested information on the second applicant 's school performance and on ORG 's health . The second applicant 's school submitted its reply on DATE . It informed the court that the second applicant 's school performance had improved and that the first applicant had been helping the second applicant a lot . ORG 's psychiatrist responded on DATE , informing the court that ORG had been seeing her regularly but refusing treatment .

On DATE , further to the request of the special representative , the court ordered the re - examination of the second applicant by the expert in psychology . However , on DATE , the expert informed the court that both applicants had failed to appear . He explained that , having regard to the considerable documentation in the case , he could reach conclusions even without interviewing the second applicant . Nevertheless , he expressed willingness to interview the second applicant if the court deemed it necessary . Further to this information , the court did not insist on interviewing the second applicant .

On DATE the expert T.P. submitted an additional report . He concluded that the first applicant seemed to be a more suitable guardian of the second applicant than O.Č. or a foster family as the second applicant seemed to be happy , tidy and had good grades since she had been living with the first applicant . However , he refused to speculate as to what extent the first applicant would be able to offer the second applicant a warm and loving environment . On the contrary , on DATE , ORG submitted its report in which it came to the conclusion that neither of the parents was suitable to be granted custody and as a result the second applicant should be placed temporarily in foster care . In this connection , they also indicated a suitable person .

On DATE the court held a hearing . The first applicant and O.Č. came to an agreement to change part of the temporary court settlement concluded at the hearing of CARDINAL DATE ( see paragraph DATE above ) , as far as the contact between the second applicant and O.Č. was concerned .

On DATE the court again ordered an additional expert opinion to be drawn up by the expert T.P. He was requested to assess the emotional state of the second applicant as well as the relationship between the applicants and between the second applicant and GPE

On DATE PERSON 's psychiatrist informed the court that she had had no contact with FAC for DATE .

On DATE the second applicant 's school informed the court that the second applicant 's school performance had improved and that she had told her teacher that she wanted to live with the first applicant .

Also on DATE the court was informed about ORG 's hospitalisation in the psychiatric stabilisation unit . It appeared that she had been taken to the hospital on DATE .

On DATE the court held a hearing . The first applicant and O.Č. concluded an enforceable court settlement by which the first applicant was awarded full custody of the second applicant and O.Č. was ordered to pay child maintenance . She was also granted contact DATE , on DATE from TIME and on DATE from TIME to QUANTITY p.m.

On DATE the applicants lodged a claim for just satisfaction in respect of unreasonable length of proceedings with the ORG Attorney 's ORG . Their claim contained explicit reference to section CARDINAL of the LAW ( see “ Relevant domestic law ” below ) .

On DATE the ORG Attorney 's ORG responded to the applicants , observing that an identical claim for just satisfaction had already been lodged with the ORG . They further informed the applicants that new domestic legislation had been enacted ( “ the LAW ” ) in order to remedy any alleged unreasonable length of proceedings . As a result , the applicants were requested to confirm whether they wish the State Attorney 's Office to examine the claim under LAW . On DATE the applicants responded that the just satisfaction claim lodged with the ORG Attorney 's ORG was only a subsidiary one and that they wished to maintain their just satisfaction claim made before the ORG . Consequently , the ORG Attorney 's ORG dismissed their claim . The part of the claim concerning the second applicant was dismissed because the second applicant was not party to the proceedings in question and could therefore not be considered a victim of the violation in respect of the undue length of the proceedings . The ORG Attorney 's ORG further dismissed the claim as a whole due to the fact that the claim was made under LAW , which was from DATE , when LAW was enacted , no longer a legal basis for a claim for just satisfaction .

NORP The DATE Constitution

The relevant provisions of LAW ( PERSON ) read as follows :

Article CARDINAL

“ Everyone shall have the right to compensation for damage caused by the unlawful acts of a person or body when performing a function or engaged in an activity on behalf of a state or local authority or as a holder of public officeLP . ... ”

On DATE the ORG delivered a landmark decision by which it found several provisions of the Marriage and Familiy Relationship Act ( “ the MFR Act ” , Zakon o zakonski zvezi in družinskih razmerjih , ORG , no . CARDINAL ) concerning custody and contact arrangements to be unconstitutional . Subsequently , an amendment was enacted by ORG in DATE ( ORG , no . CARDINAL ) . It entered into force on DATE .

Further to the above - mentioned legislative changes , the courts acquired jurisdiction to adjudicate on these issues . Since then , parents may reach agreements ( outside divorce proceedings ) in non - contentious civil proceedings . If an agreement can not be reached , the issue of custody is determined in contentious civil proceedings . The issue of contact arrangements can be determined in non - contentious civil proceedings if it is not raised together with the issue of custody ( sections DATE , CARDINAL and CARDINAL as amended in DATE ) . In particular , sections CARDINAL and CARDINAL provide , as far as relevant :

If the parents , with the assistance of ORG , can not reach an agreement on the custody of children ( varstvo in vzgoja otrok ) , the court shall decide at the request of CARDINAL or both parents that all the children are in the custody of CARDINAL of them or that some children are in the custody of CARDINAL and the others in the custody of the other parent . The court may , of its own motion , decide to place all or some of the children in the custody of a third person . Before the decision is taken by the court , the opinion of the ORG shall be obtained . The court shall take the child 's view into account if the child expresses his or her view ....

“ A child has the right to have contact with both parents . Both parents have the right to have contact with their children . Contact should be in the child 's interest first and foremost .

The parent with whom the child lives ... shall avoid anything that hinders or prevents such contact . He or she must strive to maintain an appropriate attitude in the child in respect of contact with the other parent ...

The court can withdraw or limit the right to contact only if this is necessary for the protection of the child 's interests ... ”

Section CARDINAL of the amended ORG also states that , if the custodial parent denies the non - custodial parent contact with the child and contact can not be secured with the assistance of ORG , the court shall , at the request of the non - custodial parent , transfer custody to him or her if this is in the interests of the child .

Section CARDINAL of the amended ORG provides , as far as relevant :

“ Minors shall be represented by their parents .

Section CARDINAL provides that both parents shall mutually and in accordance with the child 's best interests exercise parental rights . If they can not reach an agreement , the ORG shall assist . It further states that when the parents do not live together and do not have joint custody , they shall decide mutually on all issues which are decisive for the child 's development in accordance with the child 's best interest . If they can not reach an agreement , the ORG shall assist . However , all questions concerning the child 's everyday life shall be decided by the custodial parent . Finally , if the parents , even when assisted by ORG , can not reach an agreement , the court decides on these issues in non - contentious proceedings .

Section QUANTITY states the circumstances in which parental rights can be withdrawn :

“ The parent who abuses his or her parental rights or abandons a child or demonstrates unwillingness to take care of the child or in any other way neglects his or her responsibilities shall be deprived of his or her parental rights by a court judgment . ”

Lastly , section DATE of the amended ORG provides that cases covered by LAW should be processed as a matter of priority .

The relevant provisions of LAW ( Zakon o pravdnem postopku , ORG no . CARDINAL , in force since DATE , as amended on DATE ) read as follows :

“ In marital disputes and disputes concerning relationships between parents and children the courts shall of their own motion take all steps necessary to safeguard the rights and interests of the children ...

In disputes concerning custody and maintenance of children and in disputes concerning contact between children and parents or other persons , the panel is not bound by the parties ' requests . Where so provided by the law , the panel may take decisions even without any request being made .

For the protection of the interests of persons mentioned in the first paragraph , the panel may investigate matters which have not been raised by the parties , and collect information necessary for its decision ... ”

If there is a conflict of interests between the child and his or her statutory representative ( zakoniti zastopnik ) , the court shall appoint a special representative for the child . 's interests . ”

“ When deciding in disputes concerning custody and maintenance of children and in disputes concerning contact between children and parents or other persons , the court shall inform the child , if he or she is able to understand and assess the meaning of the proceedings and the consequences of the court 's decision , that proceedings have been instituted and about his or her right to express an opinion . Taking into account the age of the child concerned and other circumstances of the case , the sitting judge may invite the child to be interviewed in the court 's chambers or , if necessary , outside the court , with the assistance of the of ORG or school counsellor ... ”

“ During proceedings concerning marital disputes and disputes relating to relationships between parents and children , the court may , at the request of CARDINAL of the parties or of its own motion , make interim orders ( začasne odredbe ) concerning child custody and maintenance as well as interim orders withdrawing or restricting contact arrangements .

The Act on the Protection of the Right to a Trial without Undue Delay ( Zakon o varstvu pravice do sojenja brez nepotrebnega odlašanja , ORG , No . DATE CARDINAL Act ” ) has been implemented since DATE .

The CARDINAL Act provides for remedies to expedite pending proceedings – a supervisory appeal ( nadzorstvena pritožba ) and a motion for a deadline ( rokovni predlog ) . In addition to these acceleratory remedies , LAW also provides for the possibility of obtaining redress through a compensatory remedy , by instituting the proceedings for just satisfaction ( zahteva za pravično zadoščenje ) within DATE of the “ final resolution ” of the case .

For a detailed presentation of LAW , see PERSON v. GPE ( dec . ) no . CARDINAL , DATE .


Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mykhaylo Buromenskiy;Peer Lorenzen;Rait Maruste;Zdravka Kalaydjieva

The applicant was born in DATE and lives in the town of GPE , GPE .

The applicant was the owner of several underground garages . On CARDINAL DATE the applicant and the private company ORG PERSON ( “ the company ” ) signed a joint venture contract ( “ the contract ” ) under which the company took on an obligation to construct CARDINAL office buildings above the garages ( “ the disputed property ” ) .

On DATE the applicant instituted proceedings against the company in ORG , alleging that it had failed to comply with the terms of the contract . The applicant requested that the court declare the contract void . He also sought a ruling requiring the company to destroy the unfinished buildings . Lastly , he claimed compensation for pecuniary and non - pecuniary damage .

On DATE ORG allowed the applicant 's claims in part . The judgment became final .

On DATE , following an objection ( протест ) by the Prosecutor of GPE , the Presidium of ORG of GPE quashed the judgment of DATE and remitted the case to the first - instance court for fresh consideration .

On DATE ORG found against the applicant . On DATE ORG adopted an additional judgment in the case . These judgments became final .

On DATE the applicant lodged a new claim against the company seeking a ruling requiring the latter not to hinder him in use of the garages .

On DATE the company instituted proceedings against the applicant seeking division of the disputed property and claiming ownership rights to CARDINAL of it . The company also claimed compensation for pecuniary and non - pecuniary damage .

On DATE , following an objection ( protest ) by the Deputy Prosecutor of GPE , the Presidium of ORG of GPE quashed the judgment of ORG of DATE and the additional judgment of DATE and remitted the case to the first - instance court for fresh consideration .

On DATE ORG joined the proceedings .

On DATE ORG dismissed the applicant 's claims and allowed the company 's claims in part . On DATE ORG of GPE upheld that judgment .

On DATE ORG quashed the decisions of the lower courts and remitted the case to the first - instance court for fresh consideration .

By a judgment of DATE ORG found against the applicant . By the same judgment the court partly allowed the company 's claims . The court , inter alia , recognized the company 's right to use a CARDINAL of the disputed property .

On DATE ORG of GPE remitted the case to the first - instance court since the latter failed to examine all the claims lodged by the parties to the proceedings .

By additional judgment of CARDINAL DATE ORG examined the remainder of the claims . The court partly allowed the company 's claim for ownership and rejected the remainder of the applicant 's claim in respect of pecuniary damage .

On DATE ORG of GPE upheld the judgment of DATE . By the same ruling the court of appeal dismissed the company 's claim for ownership and upheld the remainder of the additional judgment of CARDINAL DATE .

The applicant appealed in cassation before ORG . On DATE ORG quashed the part of the judgment of DATE concerning the company 's right to use CARDINAL of the disputed property and upheld the remainder of the decisions of the lower courts .


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

The applicants were born in DATE , DATE and DATE , respectively , and live in ORG .

The applicants are a married couple and their son .

The applicants lived in a flat that in DATE became unsuitable for living owing to break - down of the sewage system . In DATE the first and second applicants , also acting on behalf of their then underage son , brought court proceedings seeking housing from ORG ( “ ORG ” ) . By judgment of CARDINAL DATE ORG ( “ ORG ” ) acknowledged that the applicants ' flat was unsuitable for living and ordered ORG to provide them with a “ comfortable housing suitable for CARDINAL persons in compliance with the applicable legislation ” .

On DATE ORG , acting on appeal , amended the judgment . It specified , in particular , that “ the flat should be in a brick building situated within the town centre ” . The appeal court also awarded each applicant MONEY ( RUB ) in non - pecuniary damage .

On an unspecified date the applicants submitted a writ of execution to ORG . On DATE an authorised bailiff opened enforcement proceedings .

Further to the applicants ' complaint , on DATE ORG declared unlawful the bailiff 's failure to enforce the judgment .

On DATE and DATE the bailiff and officials of ORG inspected CARDINAL municipal flats and considered them eligible to be offered to the applicants . The latter however refused both flats .

NORP By letter of CARDINAL DATE the bailiff informed the applicants that ORG had allocated funds for purchasing a flat for them .

NORP In DATE the ORG offered to the applicants to buy a flat or , in the alternative , to pay compensation .

In DATE the ORG made CARDINAL new offers . On DATE the applicants accepted resettlement into CARDINAL of those flats . On DATE they obtained an occupancy voucher and the enforcement proceedings were terminated .

On DATE the applicants received keys to the flat . On DATE the flat was inspected by the housing committee and the applicants signed the inspection record .

Thereafter , the applicants complained to various authorities that the judgment of DATE had not been properly enforced because repair works were still required . Those were carried out in DATE .

On an unspecified date the applicants brought a court action against ORG and ORG for the loss of profit and compensation for non - pecuniary damage incurred through the belated enforcement of the judgment of DATE . By a judgment of CARDINAL DATE ORG of GPE dismissed their action . It found , in particular , that the flats offered to the applicants in DATE and DATE had met the requirements of the housing legislation . Therefore , their refusal to accept those offers had been ungrounded and the delays in the enforcement occurred afterwards could not be imputed to the bailiffs ' service . On DATE ORG upheld the said judgment on appeal .


The applicant was born in DATE and is currently serving a prison sentence in ORG .

From DATE onwards the applicant has been suffering from chronic paranoid schizophrenia . For DATE he has received in - patient treatment in various psychiatric hospitals in GPE .

On DATE CARDINAL persons died , including CARDINAL children aged QUANTITY and CARDINAL , and others were injured as a result of explosives placed in the applicant ’s sister ’s family ’s flat .

On DATE criminal proceedings were instituted against the applicant , who , on DATE , was arrested and charged with CARDINAL count of voluntary homicide , inter alia , of children and CARDINAL count of illegal possession of explosives . The applicant was placed in the pre - trial detention facility of ORG , where he shared a cell with an unspecified number of prisoners .

On DATE , on the basis of a medical report which concluded that at the time of the commission of the offence the applicant ’s mental disorder was in a period of remission , ORG ruled that the applicant was able to stand trial . Subsequently , the court found the applicant guilty and sentenced him to life imprisonment .

On DATE the applicant ’s counsel lodged an appeal with ORG , claiming that the proceedings had been unfair since the PERSON report had been biased and unsubstantiated . He asked the court to order a new medical report in order to establish his state of health .

On DATE and DATE respectively , ORG and ORG upheld ORG decision . Moreover , the domestic courts dismissed the applicant ’s request for a fresh medical examination . They held that the first medical assessment had been performed by impartial professionals and had complied with procedural safeguards .

NORP Since DATE the applicant has been transferred to CARDINAL different prisons to serve his sentence , namely FAC no . CARDINAL , ORG and FAC , where he is currently being held . He has shared cells with other inmates who were in good health and has received the same treatment as them , notwithstanding his state of health . He has also regularly visited ORG hospital , where he has been treated as an in - patient .

Given the applicant ’s increasingly disturbed state of mind , on DATE his counsel initiated proceedings before ORG seeking his release or transfer to a medical facility on the ground that his detention conditions were inappropriate to his state of health and put his life at risk . The applicant ’s counsel requested the court to order that the applicant be examined by psychiatric experts . The request was based on medical reports issued by practitioners who had treated the applicant in the period from DATE .

On DATE ORG dismissed the request as unsubstantiated since the medical reports submitted by the applicant ’s counsel failed to prove that the conditions of his detention posed any threat to his life or state of health .

On DATE and CARDINAL DATE ORG and ORG respectively upheld ORG decision . According to the applicant , ORG decision was not served on him until DATE .

On DATE ORG dismissed an appeal by the applicant on the ground that his claims related to the assessment of evidence which fell outside its jurisdiction .

“ A person who commits murder against : ( a ) a minor DATE ; ... shall be sentenced to life imprisonment or to a term of not less then DATE of imprisonment . ”

“ The execution judge may decide that a detainee should be released where the continuation of his detention may have consequences for his life . ”

The relevant extracts from ORG R ( CARDINAL ) CARDINAL on ORG ( adopted by ORG on DATE at the FAC meeting of ORG ) , as revised and updated by Recommendation Rec(CARDINAL)CARDINAL ( adopted by ORG on DATE at the PERSON meeting of ORG ) , read as follows :

“ Health care

Prison authorities shall safeguard the health of all prisoners in their care .

Organisation of prison health care

CARDINAL Medical services in prison shall be organised in close relation with the general health administration of the community or nation .

ORG policy in prisons shall be integrated into , and compatible with , national health policy .

CARDINAL Prisoners shall have access to the health services available in the country without discrimination on the grounds of their legal situation .

CARDINAL Medical services in prison shall seek to detect and treat physical or mental illnesses or defects from which prisoners may suffer .

CARDINAL All necessary medical , surgical and psychiatric services including those available in the community shall be provided to the prisoner for that purpose .

Health care provision

CARDINAL Sick prisoners who require specialist treatment shall be transferred to specialised institutions or to civil hospitals , when such treatment is not available in prison .

CARDINAL Where a prison service has its own hospital facilities , they shall be adequately staffed and equipped to provide the prisoners referred to them with appropriate care and treatment .

Mental health

CARDINAL Specialised prisons or sections under medical control shall be available for the observation and treatment of prisoners suffering from mental disorder or abnormality who do not necessarily fall under the provisions of Rule CARDINAL .

CARDINAL The prison medical service shall provide for the psychiatric treatment of all prisoners who are in need of such treatment and pay special attention to suicide prevention . ... ”

A delegation of the ORG visited GPE from DATE . The relevant parts of the ORG ’s report of DATE read as follows ( emphasis added by the ORG ) :

“ CARDINAL . In the report on the DATE visit , the ORG emphasised that , in several of the pre - trial detention facilities visited ( in particular , at GPE ) , detained persons were being held in conditions of detention which could easily be considered as inhuman or degrading . Indeed , the accumulation of execrable material conditions , the legal prohibition of any activity inside the cell , the almost total absence of activities outside the cell , and the prolonged duration of placements in the facilities concerned was described by ORG as ‘ being , in its experience , unique in a NORP context’ .

It is a matter of grave concern that from the observations made at GPE during DATE visit , the situation has clearly remained virtually unchanged . It must be added that the situation found at ORG was scarcely more favourable .

During the high - level consultations with the NORP authorities , the delegation ’s view was also shared by the Prime Minister who stated that the conditions of detention in pre - trial detention facilities were ‘ a shame for Albania’ .

Already at this stage , the ORG must also express its serious concern about the absence of care for a severely ill detainee who was found in his cell in the pre - trial detention facilities at ORG . He had been left in a catatonic state on the floor of his cell for DATE , without receiving any medical attention .

These issues will be addressed in detail in the following section of the present report , but the seriousness justifies them already being flagged in this section on ill - treatment .

The DATE visit demonstrated that not a single of the specific recommendations repeatedly made in this respect by the ORG in previous visit reports had been implemented in practice , despite the explicit assurances given to the contrary by the NORP authorities in their response to the report on the DATE visit . In particular , in neither establishment visited were newly - arrived detainees subject to medical screening on admission ( except in cases of emergency or upon request ) . Further , medical examinations / consultations when they did occur were still systematically carried out in the presence of police officers . It should be added that in those few cases when medical files had been opened , they lacked basic medical data and were usually accessible to non - medical staff . Such a state of affairs is totally unacceptable .

Further , no improvements had been made as regards the general provision of health care in either establishment visited , notwithstanding various recommendations made by the ORG in the reports on DATE visits . More specifically , no steps had been taken to ensure the regular presence of qualified nursing staff ( on a full - time basis at GPE ) . It is particularly worrying that the NORP authorities , in their response of DATE to the report on the DATE visit , totally failed to address the recommendations made by ORG on this subject .

The health care provided in the pre - trial detention facilities at ORG appeared to be particularly problematic and , in a number of cases , even inexistent . In addition , conditions in the health - care facilities were appalling . The delegation received many complaints from inmates about delays in having access to the doctor and the quality of the health care provided ; the delegation observed itself , on the spot , the case of CARDINAL inmate in need of urgent medical care who had been left in a state of total neglect .

As already mentioned in paragraph CARDINAL , a mentally ill detainee was found lying in a catatonic state on the floor of an overcrowded cell , below a leaking sewage pipe , without receiving any medical attention . He had apparently been in this situation for DATE . A physical examination by the medical member of the delegation also revealed that his right leg was of intensive red colour and swollen , painful on palpation . According to fellow inmates , he had sustained the latter injury DATE when he had fallen on the floor in the sanitary facilities ( to which he had to be carried by other inmates ) .

Upon consultation with staff and cellmates , it transpired that the detainee had been hospitalised , due to his serious mental disorder , and returned to the establishment DATE before the visit . His health condition was said to have been stable for DATE on his return , but to have drastically deteriorated subsequently , apparently due to the fact that he had not received the medication prescribed by the hospital .

When confronted with this case , the doctor claimed that he had seen the inmate concerned , but was not able to provide any precise information about his health condition or the treatment provided .

When asked about the whereabouts of the medical file of the above - mentioned detainee as well as of other detainees , the doctor affirmed that such files existed in respect of every inmate , but claimed that he had no key to the cupboard where the files were said to be stored . After a considerable delay , a key was produced by a police officer , and it came to light that there was not a single personal medical file .

The only medical documentation available was a register for ORG visits , the last entry dating back to DATE . The doctor ’s explanation for this state of affairs was that ‘ he had not recorded anything , because he had not received any medication to prescribe ever since’ . ... ”

A previous visit by a ORG delegation to GPE took place from CARDINAL May to DATE . The delegation inspected , inter alia , ORG . The relevant parts of the ORG ’s report of DATE read as follows ( emphasis added by the ORG ) :

“ CARDINAL . Material conditions of detention were appalling in all the pre - trial detention facilities visited . Many detainees were being held in very cramped conditions ( for example , CARDINAL persons in a cell of CARDINAL m² at PERSON or CARDINAL persons in a cell of CARDINAL m² at Durrës ) . Cells were only equipped with foam mattresses and/or blankets . In addition , access to natural light was very limited and ventilation extremely poor .

The worst conditions were found at GPE , where inmates were not even provided with mattresses or bed sheets . Further , some inmates were being accommodated in CARDINAL storage rooms , which were packed with food parcels of the entire inmate population . Some inmates were found to be in a state of torpidity , and the delegation was informed that , on occasion , inmates had even fainted , as a result of extremely high temperatures and a very high level of humidity . Further , hygienic conditions in most of the cells as well as in the sanitary facilities were appalling ( infested with cockroaches , etc . ) . Not surprisingly , many inmates were suffering from skin diseases and/or breathing problems . It must also be stressed that some of the inmates met by the delegation had already been held in this establishment for DATE . ...

During the follow - up visit to the prison hospital in GPE , the delegation mainly focused on the situation of psychiatric patients . It also reviewed the measures taken by the NORP authorities in the light of the recommendations made after the DATE visit regarding the prison hospital as a whole . ...

Material conditions in the prison hospital had significantly improved since the DATE visit . All cells were of a reasonable size , had good access to natural light and artificial lighting , and were well equipped ( bed , bedside table , table , chair , radio ) . However , the sanitary facilities were found to be in a very poor state of repair and hygiene . The ORG recommends that steps be taken to remedy these deficiencies .

Further , many complaints were received from patients about the poor quality and quantity of the food provided . Steps should be taken to review the arrangements for the provision of food at the prison hospital .

The ORG remains very concerned about the almost total lack of out - of - cell activities for patients at the prison hospital .

As regards patients who had been declared criminally irresponsible , no out - of - cell activities were organised for them , and outdoor exercise was only provided on an irregular , less than DATE , basis , and for TIME each time . It is all the more worrying that many of the patients concerned had been staying at the prison hospital under such conditions for DATE .

Further , no outdoor exercise at all , nor any other out - of - cell activities were offered to any of the other patients . Thus , except for access to sanitary facilities , patients were usually confined to their rooms TIME per day , the only occupation being reading and listening to the radio . The hospital also had no library .

Such a state of affairs is totally unacceptable and constitutes a flagrant failure on the part of the NORP authorities to implement a recommendation which had already been made after the DATE visit and reiterated after the subsequent visits to the prison hospital .

The ORG calls upon the NORP authorities to take immediate steps to ensure that all patients whose state of health permits are offered TIME of outdoor exercise per day .

Further , the ORG reiterates its recommendation that a wider range of activities be offered to long - term patients in the prison hospital and that special attention be paid to juveniles serving long - term sentences .

The ORG welcomes the recent reinforcement of health - care staff ( CARDINAL additional doctors and CARDINAL psychologist ) at the prison hospital . The delegation was informed that plans were afoot to increase the number of nursing staff . The ORG would like to receive updated information on this matter .

As regards the treatment provided to patients , the situation remained , on the whole , unchanged . As in DATE , psychiatric treatment was based exclusively on pharmacotherapy . There were no individualised treatment plans or individual psychotherapy , occupational therapy or group therapy . In this respect , the ORG wishes to stress once again that psychiatric treatment should be based on an individualised approach , which implies the drawing up of a treatment plan for each patient indicating the goals of treatment , the therapeutic means used and the staff member responsible . The treatment plan should also contain the outcome of a regular review of the patient ’s mental health condition and a review of the patient ’s medication . The treatment should involve a wide range of rehabilitative and therapeutic activities , including access to occupational therapy , group therapy , individual psychotherapy , and sports . In addition , patients should have regular access to suitably equipped leisure rooms ; it is also desirable for them to be offered education and suitable work ( cf . also paragraph CARDINAL ) .

The ORG reiterates its recommendation that the psychiatric treatment offered to patients at the prison hospital be reviewed , in the light of the above remarks .

As regards contact with the outside world , it is praiseworthy that patients now have regular access to a telephone ( once per week ) . As regards visits , the entitlements of patients were identical to those of inmates held in prisons . In this connection , reference is made to the remarks and recommendation made in paragraph CARDINAL .

The ORG noted that , since DATE , agitated patients were no longer shackled to their bed with hand- and ankle - cuffs . Further , no excessive recourse to means of restraint ( leather straps ; sedative medication ) or seclusion was observed . However , there was no special register on the use of means of restraint / seclusion . Steps should be taken to remedy this shortcoming .

The confidentiality of medical examinations / consultations and data was not respected at all at the prison hospital . In this connection , reference is made to the remarks and recommendations made in paragraph CARDINAL .

Persons who had been declared criminally irresponsible were subject to an involuntary placement order for an indefinite period . In such cases , [ LAW ] provides that the necessity of that placement be reviewed by the court ex officio after DATE . However , the delegation was informed that such judicial reviews had never been carried out ex officio , but only upon request by the person concerned or his lawyer .

The ORG calls upon the NORP authorities to take immediate steps to ensure that the review procedure under [ LAW ] is carried out in respect of all persons who have been declared criminally irresponsible . ”

The Amnesty International Annual Report DATE stated , with reference to the state of human rights in NORP prisons :

“ Conditions of detention

Despite an ORG - supported programme of prison reform and some improvements to detention conditions , these were still generally very poor and characterized by overcrowding , poor hygiene and sanitation , and inadequate diet and health care . Contrary to NORP law and international standards , minors were still sometimes held together with adult detainees , and remand and convicted prisoners shared cells . Mentally ill prisoners were often held in prisons instead of being sent for medical treatment in specialized institutions in accordance with court decisions . Detainees held in remand cells in police stations suffered particularly harsh conditions , and there were frequent complaints . Conditions were particularly poor , largely due to overcrowding , in GPE , PERSON and PERSON police stations . ”


Violation of Art. 10;Remainder inadmissible;Non-pecuniary damage - award

András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky

The applicant was born in DATE and lives in GPE .

The applicant is a journalist and member of a political party . At the time of the impugned events , he was also the editor of the local DATE newspaper , GPE .

On DATE the applicant published an article about a certain historian , PERSON , entitled ‘ The Floor is Given to the Fascist’ ( ‘ GPE i m a fašista’ ) . In his article the applicant wrote :

“ PERSON , a historian , who during DATE ... used to write kilometres of various insults and defamation concerning the opponents of PERSON and his ... regime , has again come to the centre of public attention thanks to ... the journalist of ORG ... , who had invited him as a guest on the show ‘ ORG . And PERSON would not have been himself ( an idiot ) , if he had not used another opportunity to express his fascist - oriented points of view . This is how he , on a national TV channel ... , stated that PERSON was under NORP occupation and that NORP , NORP and above all NORP in GPE were PERSON ... According to [ J. ] P. , there are no NORP in GPE ... , whereas the NORP are mainly NORP ... because they have ‘ such nice NORP faces’ ...

In DATE following the show , many NGOs and individuals , as well as a few political parties , uttered their opinions .... [ They ] requested ORG , relying on point CARDINAL of its recommendation which provides ... that ‘ all broadcasters were under the obligation to respect ... the provisions restraining hate PERSON , to take appropriate measures against the [ national ] TV ...

The Minister of Culture and ORG and other officials also reacted ...

The latest news indicates that ORG has been collecting relevant information about the show ... Meanwhile , ORG must be gloating because he has managed once again to launch his twisted attitudes into the public domain . Following the changes of DATE , this professional ‘ long spitter’ was ... appointed head of ORG ... until recently , when the Government discharged him . He was then granted the opportunity in some tabloids ... to [ criticise ] the existing Government and the “ non - existent nations ” . ‘ PERSON was just the last episode of this activist ... who will undoubtedly ... contaminate our environment for a long time to come . ”

On DATE PERSON instituted private criminal proceedings for insult against the applicant in ORG .

At the hearing held on DATE , the applicant stated that “ he did not wish to settle the matter with the private prosecutor [ PERSON ] because he was a member of the fascist movement in GPE ” . On account of this statement , on DATE PERSON instituted new private criminal proceedings for defamation against the applicant .

Territorial jurisdiction in the matter was subsequently transferred to ORG , which decided to join the CARDINAL cases .

The court scheduled a hearing for DATE , the summons for which was served on the applicant along with ORG ’s second criminal bill of indictment on DATE . The applicant did not attend the hearing .

NORP The court scheduled the next hearing for DATE , for which the applicant received the summons on DATE . He again failed to appear in court .

The applicant submits that none of those court summons were served on him properly , since they had been sent to the address of the newspaper , where he was no longer employed . However , he appears to have personally signed acknowledgments of receipt forms for both summons .

At the next main hearing on DATE , the applicant was escorted to court by the police . His lawyer met him in the court building and made a request to the judge for a postponement of the hearing with a view to acquainting himself with the charges at issue .

The presiding judge granted the applicant and his lawyer TIME to prepare the applicant ’s defence . After TIME the applicant ’s lawyer stated that they were ready for the hearing .

The court held the main hearing and gave judgment that DATE , finding the applicant guilty of insult for the published article and of defamation for the statement given at the court hearing of CARDINAL DATE . The court fined the applicant MONEY ( ORG , MONEY ( ORG ) ) , and ordered him to pay ORG another RSD CARDINAL ( approximately EUR CARDINAL ) in respect of the costs of the proceedings .

In its judgment ORG held , inter alia , that describing someone as a “ fascist ” was offensive , given the historical connotations of that expression “ representing tragedy and evil ” . The court rejected the applicant ’s argument that he was merely expressing his own political views , since forming fascist political parties or movements was illegal under domestic law . The applicant had consequently failed to respect the human dignity of PERSON If he had felt personally offended by any of PERSON ’s statements made on the television programme or elsewhere , the applicant should have sought appropriate judicial relief .

On an appeal by the applicant , on DATE ORG upheld the first - instance judgment . The court concluded that ORG ’s statements were a product of his expert findings as a historian . Since the word “ fascism ” meant the extinction of people based on their nationality and/or religion , this had clearly not been the object of ORG ’s statements . The applicant ’s article had thus the sole aim of insulting PERSON by using this term and additionally calling him “ an idiot ” .

The second - instance court further found the applicant ’s allegations of improper summoning and an inability to prepare his defence ill - founded , establishing that he had been duly summoned twice but had failed to appear in court . Moreover , at the hearing on DATE the applicant and his lawyer had been given the opportunity to consult and prepare his defence , and they had stated after TIME that they were ready for the hearing .

It appears that ORG instituted another set of proceedings against the applicant – a civil claim for compensation for non - pecuniary damage DATE and that the domestic courts ordered the applicant to pay him compensation in the sum of ORG CARDINAL ( approximately EUR CARDINAL ) . However , the applicant did not include these proceedings in his complaints raised before the ORG .

NORP The relevant provisions of LAW ( NORP zakon PERSON ; published in ORG - nos . CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL/CARDINAL , DATE , CARDINAL , CARDINAL , CARDINAL , DATE , CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL/CARDINAL , CARDINAL/CARDINAL , CARDINAL and CARDINAL ) provide as follows :

“ Whoever , in relation to another , asserts or disseminates a falsehood which can damage his [ or her ] honour or reputation shall be fined or punished by imprisonment not exceeding DATE . ”

“ CARDINAL . Whoever insults another shall be fined or punished by imprisonment not exceeding DATE .

Whoever commits an act described in [ the above ] paragraph ... through the press ... or at a public meeting shall be fined or punished by imprisonment not exceeding DATE . ”

“ CARDINAL . ... [ no one ] ... shall ... be punished for insulting another person if he [ or she ] so does in a scientific , literary or artistic work , a serious critique , in the performance of his [ or her ] official duties , his [ or her ] journalistic profession , as part of a political or other social activity or in defence of a right or of a justified interest , if from the manner of his [ or her ] expression or other circumstances it transpires that there was no [ underlying ] intent to disparage .

In situations referred to above , ... [ the defendant ] ... shall not be punished for claiming or disseminating claims that another person has committed a criminal offence prosecuted ex officio , even though there is no final judgment to that effect ... , if he [ or she ] proves that there were reasonable grounds to believe in the veracity of ... [ those claims ] ... ”

The relevant provisions of LAW ( Osnovni krivični zakon ; published in ORG of ORG . CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL , ORG of GPE - OG FRY - nos . CARDINAL , CARDINAL , CARDINAL , CARDINAL/CARDINAL and ORG no . CARDINAL/CARDINAL ) provide as follows :

“ ... CARDINAL . NORP If the fine can not be collected , the court shall order a day of imprisonment for each MONEY of the fine , providing that the overall term of imprisonment does not exceed DATE .

NORP If the convicted person pays only a part of the fine [ imposed ] , the rest shall ... be converted into imprisonment , and if the convicted person [ subsequently ] pays the remainder of the fine , his imprisonment shall be discontinued . ”

The relevant provisions of LAW ( PERSON o krivičnom postupku , published in OG FRY nos . CARDINAL , CARDINAL and CARDINAL ) provide as follows :

“ Documents which need to be served in person pursuant to the provisions of this Code shall be served directly on the addressee . If the person to be served can not be reached at the place where the service is to be effected , the process server shall inquire when and where that person can be found and leave with CARDINAL of the persons stated in LAW a written notice inviting the recipient to be in his flat or place of work on a specified date and hour for the purpose of receiving the document . If even after this the server of process does not find the addressee , he shall act in accordance with LAW ( CARDINAL ) of this LAW and it shall be deemed that by such acts the document is served . ”

“ CARDINAL . A document which does not have to be served in person pursuant to the provisions of this Code shall also be served in person , but if the addressee is not found at his flat or place of work the documents can be served on any adult member of his household who is obliged to receive it . If no members of the addressee ’s household are found in the flat , the document may be served on the housekeeper or a neighbour , if they accept it . If the service is attempted at the addressee ’s place of work and he can not be found there , service can be effected on a person authorised to receive mail therein , who is obliged to receive the document , or to any other employee , if he is willing to accept the service .

NORP If it is established that the recipient is absent and that the persons from paragraph CARDINAL of this section are unable to deliver the document to him in due time , it shall be returned with a notice containing information on the recipient ’s whereabouts . ”

“ The summons ... for the main hearing shall be served on the defendant in person . ”

Article CARDINAL provides , inter alia , that the competent public prosecutor “ may ” ( može ) file a Request for ORG ( zahtev za zaštitu zakonitosti ) against a “ final judicial decision ” , on behalf of or against the defendant , if the relevant substantive and/or procedural “ law has been breached ” ( ako je povređen zakon ) .

On the basis of the above request , under ORG CARDINAL , CARDINAL and CARDINAL , ORG may uphold the conviction at issue or reverse it . It may also quash the impugned judgment in its entirety , or in part , and order a retrial before the lower courts . If ORG finds , however , that there has been a violation of the law in favour of the defendant , it may declare this but leave the final judgment standing .

Under sections CARDINAL and CARDINAL of LAW ( Zakon o obligacionim odnosima ; published in ORG . CARDINAL , CARDINAL , CARDINAL and CARDINAL , as well as in OG FRY no . CARDINAL/CARDINAL ) , inter alia , anyone who has suffered mental anguish as a consequence of a breach of his or her honour or reputation may , depending on its duration and intensity , sue for financial compensation before the civil courts and , in addition , request other forms of redress “ which may be capable ” of affording adequate non - pecuniary satisfaction .

Section CARDINAL of LAW ( Zakon o parničnom postupku ; published in ORG no . CARDINAL ) provides that a civil court is bound by a final decision of a criminal court in respect of whether a crime has been committed , as well as the criminal liability of the person convicted .

The relevant provisions concerning ORG and GPE are set out in GPE judgment ( no . CARDINAL , § § CARDINAL , CARDINAL and CARDINAL , DATE ) .