The applicant , PERSON , is a GPE national who was born in DATE . He is currently detained in ORG prison ( formerly named PERSON ) on GPE ( GPE ) . He is represented before the ORG by Ms PERSON , a lawyer practising in GPE . The respondent Government are represented by Mr R.A.A. PERSON and PERSON of ORG .

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

On DATE an investigating judge ( rechter - commissaris ) based in GPE , on an application by the local public prosecutor ( officier van justitie ) , issued an order for the applicant to be taken into initial detention on remand ( bewaring ) on murder and firearms charges . In relevant part , this order read as follows :

“ ... A serious danger is apparent that the suspect may flee , since it appeared that the suspect was not resident in GPE .

A serious public safety reason requiring the suspect 's immediate deprivation of liberty is apparent , namely :

the legal order has been seriously upset by the crime presumably committed ; it is , after all , considered unacceptable in society that in case of a criminal act such as the present the suspect should be allowed to remain at large while awaiting trial ;

the crime presumably committed carries a temporary prison sentence of DATE or more ;

there is a real possibility that the suspect will commit a crime which , according to its statutory definition , carries a prison sentence of DATE or more ;

[ The suspect shall undergo ] detention on remand in FAC [ i.e. PERSON prison ] or if need be , but in that case for as short a time as possible , in a police station on GPE . ”

The applicant was arrested in GPE , GPE , on DATE at TIME by an arresting team of the FAC - Rijnmond regional police force .

DATE , DATE , at TIME the applicant was brought before the GPE public prosecutor , to whom he made a statement denying all knowledge of the matters charged .

He was then brought before the investigating judge of ORG ( arrondissementsrechtbank ) , before whom he was assisted by a lawyer . The applicant again denied all knowledge of the case and stated that he did not wish to be sent to ORG . His lawyer suggested , referring to conditions of detention in PERSON prison , that for humanitarian reasons it would be preferable for the applicant to be tried in the GPE .

TIME the investigating judge informed the applicant that he did not find the applicant 's arrest and detention unlawful . He added that he lacked competence to decide where the applicant should be tried .

That TIME at TIME the applicant 's lawyer sent a fax to the Minister of ORG and the GPE public prosecutor , with a copy to the standing committee on justice ( vaste commissie voor justitie ) of ORG of ORG . This fax read as follows :

“ THE GPE JUSTICE AUTHORITIES HAVE ANNOUNCED THEIR INTENTION TO HAVE A PERSON SUSPECTED OF A CRIMINAL ACT , ARRESTED ON DATE IN GPE , ORG CURAÇAO ON DATE , WHERE HE WILL BE SUBJECTED TO THE PRISON REGIME OF THE KORAAL SPECHT PRISON , OR A COMPARABLE REGIME WHICH RUNS COUNTER TO THE HUMAN VALUES LAID DOWN IN INTERNATIONAL TREATIES TO WHICH THE GPE , AMONG OTHER STATES , HAS CONSENTED TO BE BOUND . THIS RELATES TO SERIOUS INTERFERENCES WITH HUMAN DIGNITY , INCLUDING RAPE , VIOLENCE , DISEASE , MURDER , ANARCHY , PHYSICAL DOMINATION , GANGSTERISM AND INHUMANE CONDITIONS OF DETENTION IN TOO CRAMPED CELL SPACES WITH TOO MANY PEOPLE . THE LOC OF THE GPE WITHIN GPE MAY NOT MAKE ITSELF AN ACCOMPLICE TO THIS AND SHOULD PREVENT THIS IMMINENT THREAT OF A VIOLATION OF AN INDIVIDUAL 'S HUMAN RIGHTS MATERIALISING .

Your Excellency ,

In the above matter I represent the interests of ORG , born on DATE on ORG . My client has been arrested on DATE in GPE on suspicion of acts proscribed by ORG CARDINAL and CARDINAL of LAW of GPE , at the request of PERSON , investigating judge on ORG . His arrest is based on Articles DATE and CARDINAL of the Charter for GPE ( NORP voor het GPE ) , read in conjunction . My client has GPE nationality .

The public prosecutor in charge of the case here , PERSON , has announced her intention to have my client flown to LOC on DATE , to be taken into the initial detention on remand ( bewaring ) ordered there . I have made clear my client 's objections to this course of action , but the public prosecutor is of the opinion that there are no reasons to prevent the applicant 's return to GPE . There is thus a threat of a serious and possible irreversible violation of the applicant 's civil rights , so that an immediate measure is called for .

ORG decision is devoid of legal foundation . The request of ORG comprises a request for his arrest for the purpose of transferring him to the competent authorities in GPE . However , LAW only mentions judgments and orders and the request does not fall within the scope of that Article .

The order for initial detention on remand given by the investigating judge does come within the scope of this LAW , but in that connection it should be noted that this order has already been carried out and that the suspect 's transfer to ORG has not been ordered , nor is it indicated . The investigating judge , according to the wording of his order , considers that :

' detention on remand should reasonably be considered necessary for the purpose of establishing the truth through means not including statements of the suspect ; namely , it should be made possible to hear witnesses who must be able to give evidence without any possibility of its content being influenced by the suspect . '

Since this is the main reason for the order , the need for the suspect 's transfer [ to ORG ] can not be understood . He can serve his initial detention on remand , and if necessary his extended detention on remand ( gevangenhouding ) , in the GPE without any problem , which will answer the purpose of the criminal investigation .

The decision of the public prosecutor to proceed to deportation is not only incorrect but also not based on the decision of the investigating judge . Another requirement stated in LAW is that the legal provisions of the country approached should be respected . That is not the case here . As a result of the public prosecutor 's decision my client is likely to be exposed to the prison system of ORG which , as was found recently by members of ORG of ORG , is in an extremely deplorable condition and does not meet internationally agreed standards .

LAW , which provides that no one may be subjected to torture or to inhuman or degrading treatment or punishment , is thus contravened .

In addition , it involves a contravention of LAW ( Beginselenwet Gevangeniswezen ) , which provides that persons who have not been convicted ( onveroordeelden ) should not be subjected to any limitations other than those which are strictly necessary for the purpose of their detention or in the interest of maintaining order .

It also involves a contravention of LAW , second paragraph , which contains rules relating to the regime . As has recently been found by members of ORG of ORG , the prison system on ORG quite fails to live up to reasonable minimum requirements and no improvement is to be expected in DATE .

In any event , the applicant ( betrokkene ) is entitled by virtue of LAW to an effective remedy before a national authority before deportation to the ORG prison system takes place .

It is on these grounds that I ask you to deprive the decision of ORG of its force and give ( or delegate to ) her the order not to allow the deportation of my client to GPE to proceed , or to interrupt it immediately , or reverse his deportation , and/or to order every measure that would result in enabling my client to undergo his detention on remand here , in accordance with the provisions of the Charter for GPE and the legislation applicable here .

I request ORG , to whom I am also sending a copy of this message , to delay the execution of the decision until the Minister of ORG has decided on this request .

Finally , I am sending a copy of this message to the standing parliamentary committee for information . ”

The public prosecutor replied by a letter dated DATE ( the following DATE ) , transmitted to the applicant 's lawyer by fax at CARDINAL p.m. , in the following terms :

“ Referring to your telefax message of DATE , which was received at my department at TIME , requesting a delay of the transportation of your client GPE to GPE until the Minister of ORG had reacted to your request , I can inform you as follows .

Having consulted ORG and the department of the Procurator General to ORG ( PERSON ) , I have decided that there is no call to delay your client 's transportation . The reason for this lies in the circumstance that an indication from the Minister for transportation to be delayed has not been received at my department . ”

The applicant was flown to ORG DATE on a flight scheduled for TIME

The applicant states that he spent the first DATE after his arrival on LOC in a police cell . He was then taken to PERSON prison , where he has remained ever since .

The applicant wrote to his lawyer on DATE . He stated that as of that date , he was deprived of the most basic necessities , such as access to running water and proper sanitary facilities . He also stated that there was a structural lack of furniture for the prisoners . Finally , he stated that he was not able to contact his family from PERSON because there was no access to a telephone that worked .

Delegations of ORG for the Prevention of Torture and Inhuman or Degrading Punishment ( the ORG ) visited GPE in DATE and DATE . On each occasion it inspected , in addition to other establishments , PERSON prison .

In their report of the visit made from CARDINAL to DATE ( ORG ( CARDINAL ) CARDINAL , published on DATE ) , the ORG delegation noted “ a pernicious combination of overcrowding , a regime which offered very few activities and a poor level of cleanliness and hygiene ” , compounded by “ the generally run - down state of the establishment ” . Specific problems noted included an insufficiency of the quality and quantity of food , problems with the water supply , insufficiently trained prison staff and a lack of sufficient medical care . In their opinion , to subject prisoners to such conditions of detention amounted to inhuman and degrading treatment .

The second visit of a ORG delegation to ORG took place from DATE . The report of this visit ( ORG ( CARDINAL ) CARDINAL ) was published on DATE . It mentioned the frequent incidence in PERSON of acts of violence against prisoners , committed not only by prison staff , but also by other prisoners , which staff did not do enough to prevent . Despite attempts by the authorities to alleviate the situation , including improvements in the food supply , conditions were still insanitary and overcrowding remained a serious problem . In the ORG 's opinion , “ many inmates at FAC continued to be held under conditions which could fairly be described as inhuman and degrading ” .

The third visit of a ORG delegation to GPE , from CARDINAL DATE , took place shortly before the applicant 's arrival in PERSON . The report of this visit was published on DATE ( document CPT / Inf/CARDINAL - CARDINAL ) . It contains the following in relation to PERSON ( emphasis in the original ) :

“ A. Situation at LOC

Preliminary remarks

As compared to the situation found in DATE , the ORG 's delegation observed some improvement at FAC as regards certain aspects of the material conditions of detention , attributable in great measure to the decrease in the total number of persons held in the establishment . On DATE of the visit , the establishment was accommodating CARDINAL inmates , all categories included ; in DATE , it had accommodated CARDINAL persons .

Not unrelated to this , the general atmosphere had improved , and DATE albeit very limited DATE improvements had been made as regards the provision of activities ( work , education , sport ) for prisoners . Moreover , reports of ill - treatment of inmates by staff had apparently declined of late .

Nevertheless , PERSON still suffers from a number of serious shortcomings which pose a threat to the basic rights of prisoners ( including the right to life and to physical integrity ) and put at risk the stability of the institution to the detriment of both prisoners and staff .

Ill - treatment

Reported cases of ill - treatment by prison staff had apparently diminished in DATE prior to the visit . However , a new phenomenon had appeared in the meantime , namely ill - treatment of prisoners by police personnel ( be it the riot police or the voluntary corps of ORG ) called upon to perform duties which are properly those of prison officers . Further , inter - prisoner violence continues to be of much concern .

According to statistics produced by the prison 's doctors , DATE , CARDINAL cases of violence were recorded in the prison : CARDINAL apparently involved alleged ill - treatment of inmates by staff and CARDINAL of inter - prisoner violence . In addition , CARDINAL inmate was beaten to death by fellow prisoners during that period ( on TIME CARDINAL DATE , when prisoners were supposed to have been locked in their cells ) .

Further , as had been the case in DATE , health care staff insisted that many cases of violence go unreported and it would appear that efforts to keep a precise record of cases of violence waned during DATE .

The delegation was particularly concerned to hear of an incident which occurred on DATE , where all the information gathered suggests that police officers beat prisoners who had already been brought under control : the prisoners were apparently naked and handcuffed behind their backs . The delegation was all the more concerned by the fact that the matter had not immediately been reported by prison staff present to their own hierarchical superiors ( the director of PERSON ) nor to the Landsrecherche [ i.e. the criminal investigation department of GPE ] . DATE , investigations into the conduct of the police officers involved and the prison officers who failed to discharge their duty to protect the prisoners under their care were still at an embryonic stage . Moreover , it appeared that those very police officers continued to be deployed in the prison .

Further , the delegation interviewed CARDINAL prisoners who alleged that - while the delegation was in the prison - they had been struck by ORG officers using batons . It would appear that in CARDINAL of those cases , the prisoner concerned , instead of following instructions to return to his cell , tried to explain that he had been called to the visiting facilities ; the account given by him was corroborated by a prison officer who also received a baton blow , apparently when he intervened to protect the prisoner in question .

As for inter - prisoner violence , in addition to the prisoner killed in DATE , a further CARDINAL prisoners died and several required hospital treatment in DATE , apparently following the ingestion of a poisoned beverage prepared by fellow inmates .

Other forms of inter - prisoner violence – including , according to staff and management , rape DATE continue to be commonplace at LOC . By way of example , CARDINAL , health care staff had treated CARDINAL prisoners for injuries apparently resulting from inter - prisoner violence , the last QUANTITY cases during the delegation 's stay in GPE .

Clearly , a great deal still needs to be done to tackle the problem of violence at PERSON .

In the report on the DATE visit , the ORG recommended that immediate steps be taken to draw up a comprehensive strategy to combat violence in all its forms at PERSON , and that this strategy be vigorously implemented without delay . It also indicated that this should involve a review of the tasks of the prison 's PERSON and the methods used by its members in the performance of their duties , and that interventions by that riot squad should be reduced to a minimum . In order to permit this , prison officers as a whole should have received training in the handling of violent incidents .

The prison 's riot squad had been disbanded in DATE and , in its place , police officers had been deployed to take over what are essentially prison officers duties . In the meantime , prison officers had received little further training in modern methods of control and restraint .

The ORG wishes to stress that the use of police officers or other law enforcement officials instead of prison officers in order to perform ordinary tasks within a prison inevitably leads to high risk situations . This danger is compounded when the police uniform does not permit the identification of individual officers , which was the case at the time of the visit .

Nevertheless , the ORG has noted that certain measures have been adopted which can contribute ( and would appear to have already contributed ) to the decrease and ultimately to the prevention of ill - treatment of prisoners by staff .

By a Decree of DATE , an independent Commission was established ( ORG ) to guarantee the integrity of persons deprived of their liberty and to investigate any abuse which might occur . The ORG has itself set out the measures that are to be taken in case of alleged ill - treatment , which include : immediately notifying the President of the Commission of any such allegations ; promptly interviewing the person making the allegations and other relevant persons ; a thorough medical examination of the person concerned by the prison doctor , who is required to note the allegations and make a detailed record of any injuries and conditions observed ; taking , in appropriate cases , photographs of the relevant parts of the body of the person making the allegations ; referral to hospital for more detailed examinations ; the requirement that a record be made of the doctors ' conclusions in the light of the allegations and medical findings . Further , the members of the Commission seem to be making themselves visible to prisoners and to staff , and accessible to them . In addition , inquiries have been initiated into certain of the incidents which have occurred in the prison in recent times .

More generally , on DATE , standing orders were issued ( ORG order ] GWC No . CARDINAL - CARDINAL ) for the reporting of cases of violence . However , this reporting system was apparently not fully operational at the time of the visit , and did not involve the recording of relevant information in appropriate central registers ( e.g. in the health care service and the office of the director ) .

In the context of inter - prisoner violence , some steps have been taken to address the question of the appropriate classification and distribution of inmates , e.g. through the development of a department of detainees ' affairs , and further measures are envisaged . More particularly , a CARDINAL-place reinforced security unit ( ORG ) has been established in LOC ; at the time of the visit , this unit was being used to accommodate on a temporary basis prisoners suspected of having abused or assaulted fellow inmates or staff .

ORG Staff and management issues

In the report on the DATE visit , the ORG indicated that the deplorable conditions of detention which prevailed at FAC were certainly an important factor in the culture of violence in the establishment . However , it stressed that the problem of violence also stemmed in large part from shortcomings as regards staff and management . In paragraph CARDINAL of that report , the ORG stated that :

“ The fundamental requirement is to ensure that prison officers are placed in a position to exercise their authority in an appropriate manner .

Prison officers will not be able to carry out their duties satisfactorily if they fear for their own safety . In such a situation , staff are likely to be prone to abuse or ill - treat prisoners in their charge ; moreover , they will be poorly placed to protect prisoners from violence from other inmates . Consequently , the level of staffing must be sufficient to enable prison officers effectively to support each other in the exercise of their supervisory tasks .

Adequate staffing levels must be accompanied by a clear message to prison officers that the ill - treatment of prisoners is unacceptable and will be severely punished . Further , if complaints of ill - treatment by staff do emerge , the prison 's management and other relevant authorities must take swift and effective action to address them . More generally , it should be underlined that ready access to an efficient complaints system , preferably with an independent element , is crucial to ensure the maintenance of good order in prison .

Tackling the phenomenon of inter - prisoner violence requires of a prison 's staff that it be alert to signs of trouble and both resolved and properly trained to intervene when necessary . The existence of positive relations between staff and prisoners , based on the notions of secure custody and care , is a decisive factor in this context ; this will depend in large measure on staff possessing appropriate interpersonal communication skills . Further , management must be prepared fully to support staff in the exercise of their authority . Specific security measures adapted to the particular characteristics of the situation encountered ( including effective search procedures ) may well be required ; however , such measures can never be more than an adjunct to the above - mentioned basic imperatives . In addition , the prison system needs to address the issue of the appropriate classification and distribution of prisoners . ”

However , at the time of the DATE visit , the problem of unauthorised staff absences continued to be acute at FAC . The very high incidence of staff absenteeism resulted in levels of prison officer presence on the wings being considerably lower than necessary for the proper and safe functioning of the establishment . This problem was compounded by what appeared to be a large number of staff deployed in the administration building or employed in duties that kept them quite apart from inmates . The overall morale and confidence of prison officers continued to be low , demotivation being enhanced by a number of factors , not least by the continued deployment of police personnel to perform prison officer duties .

In this connection , the ORG has noted that the measures so far adopted to address the problem of absenteeism have failed and that no target date has been set for strengthening the enforcement of those measures ; further , it would appear that , at the time of the visit , no alternative policy was being considered .

Recruitment efforts in the recent past had served to make up for staff departures , without a significant increase in staffing levels . Nonetheless , the ORG has noted with interest that it is now envisaged to recruit CARDINAL additional staff for PERSON .

In paragraph CARDINAL of the report on the DATE visit , the ORG also stressed that :

' If prison officers as a whole receive training in the handling of violent incidents , it should be possible to reduce to a minimum interventions by a “ riot squad ” . Certainly , such a squad should not be routinely involved in such operations as the counting of prisoners and searches . Further , any such squad should be suitably trained and equipped ; it should be resolutely committed to using the minimum degree of force necessary through recourse to modern intervention techniques . Such techniques do not include meeting violence with violence . '

Further , any achievements will be short - lived if PERSON Prison is not provided with appropriate management . This question has already been addressed in the previous visit reports . In paragraph CARDINAL of the report on the DATE visit , the ORG indicated that :

' Only a governor , possessing the necessary authority , competence and experience and supported by a closely - knit team , would be in a position to instil the right tone and atmosphere into the establishment and be sufficiently motivated to develop policies and plans for the future . In the absence of real management , the establishment will tend to drift . Such an environment is a propitious one for the growth of undesirable practices . '

In that report , the ORG reiterated the recommendation that GPE authorities provide the prison with a management team possessing the above - mentioned qualities .

The appointment of a specific Location Director ( Lokatiedirekteur ) for PERSON Prison is a positive development . However , the potential benefits of such a measure have been curtailed by a number of factors : insufficient experience of the Location Director on prison matters ; temporary nature of the appointment ( for DATE periods ) ; apparent absence of suitably equipped and structured middle management ; lack of powers and resources required effectively to manage the prison ; insufficient support and guidance from hierarchical superiors . The ORG wishes to add that in the past the recruitment process has not always been successful in identifying the right persons for senior posts .

By contrast , the ORG has noted that ORG has apparently been given the necessary authority ( and means ) to address urgent problems , something which the prison 's management at both local and central level has , for different reasons , not been capable of doing in the past . That is , in itself , an indictment of the prisons ' management at the most senior level .

As regards more particularly middle management , it should be rendered effective through careful selection and suitable training . Further , the current arrangements concerning middle management at ORG need to be reviewed and , possibly , reorganised . Precise job descriptions should exist for each post , setting out clearly the areas of responsibility , powers and accountability arrangements . Suitable middle management would relieve the Director of part of his current functions , permitting him visibly to be involved with staff and prisoners on a regular basis , and to participate in drawing - up longer term plans and strategy for the establishment .

Staff organisational structure at other levels also requires attention . On the one hand , the nature of the work involved in the case of certain posts should be clarified ( and perhaps some officers re - deployed to other functions ) . On the other hand , the current system of promotion by length of service will not encourage good performance and does not , at present , seem to imply any extra responsibility . It is clear that this promotion system will not serve to identify suitable candidates for posts involving additional responsibility , e.g. to lead teams of officers working in specific accommodation units or involved in the different areas serviced by prison staff ( workshops , education , sport , visits and escorts ) .

Conditions of detention

The ORG has noted and welcomes the efforts made to improve the material environment at FAC . In the course of the visit , the delegation observed that the LOC had been freshly painted ; work had been done to keep the prison in a better state of repair than that observed at the time of the previous visits ; efforts had been made to improve the provision of water and the sanitation in the detention areas ; and work continued as ORG visited the prison .

These factors have led to improved conditions of detention at ORG . As already indicated , much of that improvement is due to the decrease in the number of persons being held in the prison , a reduction of PERCENT as compared to the establishment 's population in DATE .

Notwithstanding this , the prison continued to suffer some degree of overcrowding . By way of example , certain cells regarded by the ORG as being suitable for CARDINAL persons were holding CARDINAL inmates , and cells which should ideally accommodate one or , at most , CARDINAL inmates were being used to hold CARDINAL prisoners .

Consequently , efforts should continue to be made to bring the occupancy levels of prisoner accommodation into line with the criteria expressed by the ORG in paragraph CARDINAL of the report on the ORG 's DATE visit .

In this context , the ORG welcomes that the current plans for the expansion of the prison provide for an adequate amount of cell space per prisoner . Indeed , the delegation was told that CARDINAL new cells , designed to accommodate CARDINAL prisoner each , will be built ; this will allow existing cell occupancy levels to be reduced markedly . Moreover , following its expansion , the prison 's capacity will apparently be calculated on the basis of some CARDINAL m² of cell space per prisoner held in collective accommodation .

However , the ORG is far from convinced that providing additional accommodation will alone offer a lasting solution to overcrowding . Additional measures , including at a statutory level , may well be required to limit or modulate the number of persons being sent to prison .

Even the present level of occupation would permit further improvements to be made in the short - term . This should involve , in particular , a more developed regime of activities for all prisoners , placing special emphasis on those serving longer sentences . Prisoners should be offered a variety of constructive activities involving a significant part of DATE . As already indicated , as compared to the situation observed in the course of previous visits , some improvements had been made as regards the provision of activities to prisoners ; in particular , the sports hall had been brought back into service , some prisoners were offered work in the workshops and in the prison 's services and , on occasion , educational activities were organised . Nevertheless , as regards the vast majority of prisoners , not even the modest target of TIME of activities per week was being met .

In order to succeed in developing prisoners ' regime , the active participation of the relevant staff will be required , and the necessary facilities should be provided . In this connection , the delegation was told that funds have been made available by the GPE authorities to develop the regime for prisoners , and provision is also made for prisoners ' activities in the prison 's own budget . Apparently , these funds have not been fully utilised . More generally , it would appear that the total budget for PERSON for DATE has been considerably underspent . This reflects badly on the prison service management , particularly if regard is had to the prevailing situation at PERSON . Furthermore , the delegation heard allegations that some officers did not facilitate the attendance of inmates at the courses which were organised .

Priority must continue to be accorded to providing prisoners with the most basic necessities , such as adequate access to running water and to proper sanitary facilities ( a matter which is long overdue ) , and with a hygienic environment . Further , there can be no justification for failing , for whatever reason , to provide them with adequate food at regular times and ready access to drinking water . Problems in these areas persist at LOC . In addition , all prisoners should be supplied with a bed and bedding .

In this latter respect , certain prisoners interviewed complained that they had not received a mattress . The delegation was subsequently told that there was a shortage of mattresses , despite the fact that the budgetary means were available .

As for the question of buildings , this may be thought the most straightforward way of resolving PERSON problems . However , new buildings do not necessarily produce new attitudes . Motivated and well trained staff and prisoners who are kept occupied can tolerate poor buildings , at least for some time . In respect of construction efforts , since new buildings are likely to be used for a long time and involve a significant investment , efforts should be made to get them right at the outset . Provided that : first , the current level of occupation in the prison 's accommodation facilities is not surpassed ( preferably reduced further to comply fully with the criteria set out in paragraph CARDINAL of the DATE visit report ) ; secondly , the basic needs of prisoners are satisfied ; and thirdly , the programme of activities is developed somewhat , the GPE authorities will have the time required to ensure that efforts and financial resources are not wasted , and that new buildings adequately meet the current and future needs of GPE 's prison system .

However , the time at their disposal will not be unlimited and it is crucial that the planning process maximises the opportunity available to those authorities . To be fully effective , this process requires a combined effort by all relevant parties ( planners , management , staff ) , a guarantee that finance is available , a team retained and committed to work until the completion of the project , an efficient procedure for considering the plan and responding to it , and an agreed realistic timetable for its implementation with strict monitoring of compliance .

The plans for the improvement of conditions at PERSON and for the expansion of its facilities were well advanced and seemed adequate . However , those responsible for the plans appeared not always to have a full understanding of what other people involved in the process were doing . Similarly , the system for securing final decisions on aspects of the plans and overall approval was not immediately clear . Thus , for example , it was very difficult to establish clear timeframes for the implementation of the plans which were being developed .

As already indicated , ORG has been given the authority and the means to address urgent problems . This possibility is to be welcomed , not least because it is the first sign seen by the ORG that good intentions might in effect be translated into real action leading to the bettering of conditions of detention and the treatment of persons deprived of their liberty . However , this effective trouble shooting should not cloud the need to develop a coherent strategy . The development of longer - term plans to address the underlying issues at PERSON should not be overlooked .

Health care services

At the time of the visit , the health care team at ORG had not been reinforced as compared to the position in DATE . In fact , the situation had worsened given the temporary absence of CARDINAL of the nurses . This resulted in a very heavy workload and responsibility for the only nurse currently working full - time at the prison . Further , medical screening on reception and access to a doctor in non - emergency situations continued to suffer significant delays . As had been the case during previous visits , the delegation received many complaints from prisoners as regards the provision of health care . Moreover , the shortcomings concerning dental care had not yet been resolved .

Nonetheless , the delegation was led to believe that certain changes in the above respects were imminent , inter alia by the employment of CARDINAL additional full - time nurses and a doctor . These developments concerning staff should permit the implementation of at least certain of the recommendations made by the ORG in previous reports concerning the health care service at FAC .

B. Further measures required and proposed timetable

Controlling overcrowding will be a crucial factor in improving the treatment of persons held in GPE , and has a bearing on all aspects of life in the prison . Consequently , the current level of occupation in GPE must not be surpassed and , preferably , additional measures ( including at a statutory level ) should be taken to reduce further the number of persons held in the prison . The objective should be to ensure that the inmate population is kept at an acceptable level pending the implementation of the improvement and expansion plans .

The reporting system for cases of violence should be rendered effective without delay . This should be accompanied by the introduction of central registers containing relevant information to be kept in the health care service and the office of the director .

Similarly , the procedure laid down by ORG for the investigation of allegations of ill - treatment should be made fully effective in practice .

Means should be made available as of now to ensure that the basic needs of prisoners are satisfied ( e.g. prisoners should be guaranteed food at appropriate times and ready access to drinking water , and they should be supplied with a bed and bedding ) , and that all of them are offered TIME of outdoor exercise every day .

Further , efforts should be redoubled to ensure that prisoners are accommodated in a hygienic environment , and have suitable access to proper sanitary facilities and running water . The ORG has noted that progress has been made in this regard and understands that the water supply problem should have been resolved within DATE following the visit . ORG would appreciate receiving confirmation that this task has been successfully completed .

Further , an ongoing maintenance programme should be elaborated without delay and the resources made available to ensure that repair work is carried out as and when it becomes necessary .

Reinforcement of the health care team is long overdue . The ORG understands that although CARDINAL candidates for nursing posts had been identified , at the time of the visit no concrete date had been fixed for them to commence employment . The ORG would like to receive further information on this subject . As regards increasing doctors ' presence in the establishment , it looks forward to receiving confirmation of the employment of an additional doctor and information about the actual time the doctor is present in the prison . ”

By a letter dated DATE , ORG to ORG transmitted to the president of ORG the response of the Government of GPE . DATE , this described , in relevant part , various measures aimed at improving the situation in PERSON . These included , inter alia , changes in the composition of the riot team and the way it operated , improved investigation of violent incidents , improvements in the motivation and training of prison staff and an increase of their number ; improved activity and work programmes ; improvements in food supply ; and the provision to the prisoners of clean running water . The number of medical staff had been increased in accordance with ORG recommendations . The number of prisoners allowed had been set at a maximum . Some of these improvements , such as the recruiting and training of new staff , had already begun to be implemented at the time of ORG 's visit .

A ORG delegation carried out a visit to GPE from CARDINAL to DATE . They noted significant improvements in the material living conditions at PERSON ( which by this time had been renamed ORG ) ; in particular , extensive renovation and construction had taken place and the severe overcrowding problem had been brought to an end . A new water supply system had been installed , as had new public telephones . Medical care had improved ; so had the sanitary situation , although cockroaches and rats were still a problem in some parts of the prison . There was still a shortage of proper beds and bedding , although not to the same degree . Violent incidents involving prison staff were no longer stated to be a problem . However , inter - prisoner violence appeared to have continued as a result of prison staff , who were still insufficient in number , stepping back from awkward situations , thereby effectively abandoning control to inmates : a stabbing incident actually took place during the visit of the ORG delegation . ( See the ORG 's report of DATE , ORG / ORG . )

“ GPE , GPE and GPE ,

Noting that the GPE , GPE and GPE declared of their own free will in DATE that they wished to receive a new legal order in which they take care of their own interests independently and take care of their common interests and provide mutual assistance on an equal footing , and have decided jointly to draw up the Charter for the GPE ;

Noting that the bond under this Charter with GPE has been terminated with effect from DATE ... ;

Noting that GPE has declared of its own free will that it accepts this legal order as a country ;

Have decided jointly further to determine the Charter for the GPE as follows . ”

“ The GPE , GPE and GPE shall give each other aid and support . ”

“ Judgments given by a court in the GPE , GPE or GPE , judicial orders and executory copies of official documents ( grossen van authentieke akten ) drawn up there can be executed throughout the GPE , with due regard to the legal provisions of the country where execution takes place . ”

“ CARDINAL . The GPE , GPE and GPE shall conduct their own affairs independently .

The affairs of the GPE shall also concern the countries . ”

In relevant part , Article CARDINAL of LAW ( PERSON ) of the GPE provides as follows :

At the time of his interrogation [ by the investigating judge ] , the accused may request the investigating judge to release him [ from police custody ] .

If the investigating judge considers the police custody unlawful , he shall order the accused 's immediate release . Otherwise , the investigating judge shall make a note of his decision in the official record of the interrogation or , if the suspect has made a request for his release , the investigating judge shall reject it . ... ”

At the time of the applicant 's transfer to ORG ( DATE ) , LAW of the Code of Civil Procedure ( Wetboek van Burgerlijke Rechtsvordering ) of the GPE provided , in relevant part :

“ CARDINAL . In all cases where , considering the interests of the parties to the case , an immediate provisional measure is needed as a matter of urgency , the case can be brought at a hearing which shall be held by the President [ of ORG ] on DATE to be determined by him .

NORP In case of circumstances requiring even greater speed , the summons can be ordered for DATE , including the DATE , to be determined in each case by the President [ of ORG ] on oral application by the interested party . He can then also order that the hearing shall be held in his home . ... ”

At the relevant time , section CARDINAL of ORG ( Wet op de rechterlijke organisatie ) of the GPE provided as follows :

“ The officers ( ambtenaren ) of the public prosecution service ( openbaar ministerie ) shall obey the orders given them in their official capacity by the competent powers in the name of the Monarch . ”

The Government have drawn the ORG 's attention to a judgment given in summary proceedings under the present LAW ( which since DATE replaces the former LAW ) by LAW ( PERSON ) of ORG of The Hague – the successor , as regards summary civil proceedings , to the President of ORG – on DATE ( case number KG CARDINAL/CARDINAL ) . That judgment contains the following reasoning ( emphasis in the original ) :

“ CARDINAL . The question before us is whether the ORG commits a tort against the plaintiff , taking into account his state of health , by executing the order for his initial detention on remand ( bewaring ) and co - operating in his transfer to GPE , there to be placed in detention on remand ( voorlopige hechtenis ) .

The Provisional Measures Judge will proceed on the following basis . The initial detention on remand order ( ... ) given by the [ LOC ] investigating judge can not be called into question ( in summary proceedings ) , since there is no legal remedy against such an order . The plaintiff can therefore be taken into detention on remand in a remand centre , in the present case the ORG prison . To that extent the ORG is therefore obliged , in view of ORG DATE and CARDINAL of the Charter for GPE , to co - operate in the plaintiff 's transfer to GPE there to undergo detention on remand .

It is established that the plaintiff has not been interrogated within the framework of his being brought before the [ ORG ] investigating judge and the order for his initial detention on remand because of the physical distance . However , when being thus interrogated a suspect has the possibility to request the suspension of his detention on remand , for example on the ground that his state of health does not admit of his detention .

In our provisional opinion the plaintiff has sufficiently made out a prima facie case that his transfer to GPE – considering also LAW constitutes a tort . It is noted in this connection , in the first place , that the sole fact that the plaintiff would be detained in the ORG prison does not entail the risk of treatment as referred to in LAW . Nor does the fact that transfer to GPE for detention is generally stressful so entail . However , the applicant has made out a sufficient prima facie case that special circumstances concerning him particularly imply that his transfer ( DATE TIME ) to GPE constitutes a tort . The plaintiff is a cardiac patient and it appears from CARDINAL medical statements , including CARDINAL by the cardiologist who is treating him , that if the plaintiff will run a life - threatening risk to his health – not only because of the stress caused by the said transfer [ itself ] and the stay in the ORG prison but also because of the climatic conditions – should he be transferred to GPE . The foregoing is all the more persuasive given that it appears from the ORG report of DATE which has been submitted that the medical provisions in the ORG prison may have improved but still fall short of desirable standards . In view of this life - threatening health risk , this involves , for the plaintiff , a risk of treatment that , for him , would be inhuman .

Since , at this time , there is reasonable ( medical ) doubt as to whether [ the plaintiff 's ] state of health permits the applicant 's transfer DATE TIME to GPE to be placed in detention on remand there ( in the ORG prison ) and [ he ] thereby runs the risk of being subjected to what , for him , would amount to inhuman treatment , since it concerns , in the present case , a life - threatening health situation , the ORG 's co - operation in transferring the plaintiff to GPE now constitutes a tort . ...

The Provisional Measures Judge considers it important to note in this connection that the initial detention on remand order has not lost its force by reason of this order for a provisional measure in summary proceedings ( that is , for the time being , no transfer to GPE ) , [ nor does this order imply ] a suspension of detention on remand . ... ”


Violation of P1-1;Violation of Art. 6-1;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings

The applicant was born in DATE and lives in GPE .

He is the owner of a flatt in LOC , which he had let to GPE

In a writ served on the tenant on CARDINAL DATE , the applicant informed the tenant of his intention to terminate the lease on expiry of the term on DATE and summoned her to appear before the Salerno Magistrate .

By a decision of CARDINAL DATE , which was made enforceable on DATE , the Salerno Magistrate upheld the validity of the notice to quit and ordered that the LOC be vacated by DATE .

On DATE , the applicant served notice on the tenant requiring her to vacate the premises .

On DATE , he served notice on the tenant informing her that the order for possession would be enforced by a bailiff on DATE .

On DATE the bailiff made CARDINAL attempt to recover possession that proved unsuccessful as , under the statutory provisions providing for the suspension , the applicant was not entitled to police assistance in enforcing the order for possession .

On DATE , the applicant made a statutory declaration that he urgently required the premises as accommodation for himself .

Pursuant to article CARDINAL of Law no . CARDINAL , the Salerno Magistrate suspended the eviction proceedings until DATE .

On DATE , he served a second notice on the tenant informing her that the order for possession would be enforced by a bailiff on DATE .

On DATE , the applicant recovered possession of the flat .

Since DATE the public authorities in GPE have frequently intervened in residential tenancy legislation with the aim of controlling rents . This has been achieved by rent freezes ( occasionally relaxed when the Government decreed statutory increases ) , by the statutory extension of all current leases and by the postponement , suspension or staggering of the enforcement of orders for possession . The relevant domestic law concerning the extension of tenancies , the suspension of enforcement and the staggering of evictions is described in the ORG 's judgment in the case of ORG GPE [ ORG ] , no . CARDINAL , § § DATE , ORG CARDINAL-V.

As regards the control of the rents , the evolution of the NORP legislation may be summarised as follows .

The first relevant measure was the PERSON no . CARDINAL of DATE which provided machinery for “ fair rents ” ( the so - called equo canone ) on the basis of a number of criteria such as the surface of the flat and its costs of realisation .

The second step of the NORP authorities dated DATE . It was taken in the view of progressive liberalisation of the market of tenancies . Accordingly , a legislation relaxing on rent levels restrictions ( the so - called patti in deroga ) entered into force . Owners and tenants were in principle given the opportunity to derogate from the rent imposed by law and to agree on a different price .

Lastly , PERSON no . CARDINAL of DATE reformed the tenancies and liberalised the rents .

NORP The tenant is under a general obligation to refund the owner any damages caused in the case of late restitution of the flat . In this regard , LAW provides :

“ The tenant who fails to vacate the immovable property is under an obligation to pay the owner the agreed amount until DATE when he leaves , together with other remaining damages . ”

NORP However , PERSON no . CARDINAL of DATE set out , inter alia , a limit to the compensation claimable by the owner entitling him to a sum equal to the rent paid by the tenant at the time of the expiration of the lease , proportionally increased according to the cost of living ( LAW no . CARDINAL of DATE ) plus PERCENT , along the period of inability to dispose of the possession of the flat .

In the judgment no . CARDINAL of DATE , ORG was called upon to decide whether such a limitation complied with LAW . ORG held that it was compatible with the LAW with regard to periods of time during which the suspension of the evictions was determined by law . ORG explained that the introduction of that limitation was intended to settle the tenancies of the time of the emergency legislation , when the housing shortage made the suspension of the enforcement necessary . While evictions were suspended ex lege , the law predetermined the quantum of the reimbursement chargeable to the tenant , both measures being temporary and exceptional . Besides , the interests of the owner were counterbalanced by the exemption for him from the burden to prove the damages .

The Constitutional Court declared the limitation to the compensation claimable by the owner unconstitutional with regard to cases where the impossibility for the owner to repossess the flat depended on the conduct of the tenant and was not due to a legislative intervention . Accordingly , it opened the way to owners for the institution of civil proceedings in order to obtain full reparation of the damages caused by the tenant .


Alvina Gyulumyan;Corneliu Bîrsan;Elisabet Fura;Josep Casadevall;Luis López Guerra

The applicants , Mr PERSON , PERSON and their CARDINAL children are NORP nationals of GPE origin , born DATE , DATE , DATE , DATE , DATE and DATE . It appears that the first applicant was born in GPE . The applicants currently live in GPE , GPE .

s , may be summarised as follows .

The applicant spouses and their CARDINAL eldest children entered GPE in DATE and requested asylum . In support of their application they maintained that , being GPE , they would be harassed and discriminated against upon return to GPE . Their request was refused by ORG ( Migrationsverket ) on DATE .

The spouses re - applied and included their other CARDINAL children , who were born in GPE in DATE and DATE .

Their request was refused by ORG on DATE and this decision was upheld on appeal by ORG ( Migrationsdomstolen ) on DATE . At some point , leave to appeal was refused by ORG ( Migrationsöverdomstolen ) .

Their request was also refused by ORG on DATE , and this decision was upheld on appeal by ORG on DATE and by ORG on DATE .

On DATE ORG refused to revoke the deportation order in respect of the first applicant .

Originally , the applicants were to be deported to the then ORG and GPE .

On DATE the NORP Government informed the ORG that the applicants had said that they were willing to cooperate in their return to GPE . They had not , however , submitted any documents regarding their identity . They had visited ORG in order to obtain travel documents , but GPE is not prepared to receive them as it can not find the applicants in its registers and the applicants have no identity papers which show that they are from GPE . The enforcement of the expulsion order will therefore be turned over to the police . To sum up , it was not possible to be more exact as regards the destination to which the applicants would be deported , but the efforts will be focused on GPE , unless the applicants show that some other country is prepared to receive them .

The basic provisions applicable in the present case , concerning the right of aliens to enter and to remain in GPE , are laid down in the DATE LAW ( Utlänningslagen , DATE hereafter referred to as “ the DATE LAW ) .

LAW , of the DATE Act stipulates that an alien who is considered to be a refugee or otherwise in need of protection is , with certain exceptions , entitled to a residence permit in GPE . According to LAW , LAW , of LAW , the term “ refugee ” refers to an alien who is outside the country of his or her nationality owing to a well - founded fear of being persecuted on grounds of race , nationality , religious or political beliefs , or on grounds of gender , sexual orientation or other membership of a particular social group and who is unable or , owing to such fear , is unwilling to avail himself or herself of the protection of that country . This applies irrespective of whether the persecution is at the hands of the authorities of the country or if those authorities can not be expected to offer protection against persecution by private individuals . By “ an alien otherwise in need of protection ” is meant , inter alia , a person who has left the country of his or her nationality because of a well - founded fear of being sentenced to death or receiving corporal punishment , or of being subjected to torture or other inhuman or degrading treatment or punishment ( LAW , LAW , of the DATE Act ) .

Moreover , if a residence permit can not be granted on the above grounds , such a permit may be issued to an alien if , after an overall assessment of his or her situation , there are such particularly distressing circumstances ( synnerligen ömmande omständigheter ) to allow him or her to remain in GPE ( LAW , section DATE CARDINAL Act ) . During this assessment , special consideration should be given to , inter alia , the alien 's health status . In the preparatory works to this provision ( Government Bill CARDINAL , pp . CARDINAL ) , life - threatening physical or mental illness for which no treatment can be given in the alien 's home country could constitute a reason for the grant of a residence permit .

As regards the enforcement of a deportation or expulsion order , account has to be taken of the risk of capital punishment or torture and other inhuman or degrading treatment or punishment . According to a special provision on impediments to enforcement , an alien must not be sent to a country where there are reasonable grounds for believing that he or she would be in danger of suffering capital or corporal punishment or of being subjected to torture or other inhuman or degrading treatment or punishment ( LAW , LAW , of the DATE Act ) . In addition , an alien must not , in principle , be sent to a country where he or she risks persecution ( LAW , LAW , of the DATE Act ) .

Under certain conditions , an alien may be granted a residence permit even if a deportation or expulsion order has gained legal force . This applies under LAW , LAW , of LAW , where new circumstances have emerged that mean there are reasonable grounds for believing , inter alia , that an enforcement would put the alien in danger of being subjected to capital or corporal punishment , torture or other inhuman or degrading treatment or punishment or there are medical or other special reasons why the order should not be enforced . If a residence permit can not be granted under this provision , ORG may instead decide to re - examine the matter . Such a re - examination shall be carried out where it may be assumed , on the basis of new circumstances invoked by the alien , that there are lasting impediments to enforcement of the nature referred to in LAW , Sections CARDINAL and CARDINAL , of LAW , and these circumstances could not have been invoked previously or the alien shows that he or she has a valid excuse for not doing so . Should the applicable conditions not have been met , ORG shall decide not to grant a re - examination ( LAW , LAW , of LAW ) .

Under LAW , matters concerning the right of aliens to enter and remain in GPE are dealt with by CARDINAL instances ; ORG , ORG and ORG ( LAW , LAW , and LAW , LAW , of LAW ) .

In the ORG 's ORG from GPE , DATE , the ORG High Commissioner for Refugees states as follows :

“ III . Eligibility for International Protection

All claims by asylum - seekers from GPE should be considered on the basis of their individual merits according to fair and efficient refugee status determination procedures .

Some of the claims lodged by asylum - seekers from GPE may give rise to possible exclusion from refugee status . ORG considers that groups set out in this section face a particular risk of persecution or serious harm in GPE , including through cumulative discriminatory acts . This listing is not to be construed as exhaustive and is based on information available to the ORG at the time of writing .

A. Main Groups at Risk

NORP and NORP in Minority Situations , and GPE

GPE NORP and GPE NORP inhabiting areas where they are in the minority , and GPE Roma inhabiting any part of GPE , continue to face serious restrictions to their freedom of movement and the exercise of fundamental human rights , including serious societal and sometimes administrative discrimination that would limit in particular their ability to exercise their political , social and economic rights . Furthermore , there are reports of threats and physical violence perpetrated against these communities . The NORP and NORP minorities , due to their racial and ethnic characteristics , may be confused with ORG . Similarly to ORG , the NORP and NORP minorities often lack identity papers and are therefore placed in difficult circumstances with regard to access to social services , health care and education . Asylum applications from members of these communities should be assessed carefully in order to evaluate whether there is a need for international protection , based on a risk of persecution on grounds of actual or perceived race or nationality . ”


The applicant was born in DATE and lives in GPE .

The applicant sued the local social welfare authority ( PERSON по социальной защите населения администрации Советского района г. GPE ) claiming readjustment of her old - age pension . On DATE the ORG of GPE granted her claim and awarded her MONEY . No appeal was brought against the judgment , and it became final and enforceable DATE .

On DATE the bailiff initiated enforcement proceedings .

On DATE the bailiff terminated the proceedings because the defendant had not had sufficient funds to pay the judgment debt .

On DATE the monies due to the applicant were transferred into her bank account .


David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Stanislav Pavlovschi

The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE . He was represented before ORG , solicitors in GPE . ORG ( “ the Government ” ) were represented by their Agent , PERSON of ORG .

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

The applicant ’s wife died on DATE . In DATE the applicant applied for widows’ benefits . On DATE the applicant was informed that his claim had been disallowed as he was not a woman .

The applicant did not appeal further as he considered or was advised that such a remedy would be bound to fail since no such social security benefit was payable to widowers under GPE law .

The applicant was not in receipt of child benefit at the time of his claim .

The domestic law relevant to this application is set out in Runkee and White v. GPE , no . CARDINAL , § § CARDINAL , DATE .


Violation of Art. 6 on account of the quashing of two judgments;Not necessary to examine the allegation of procedural unfairness in the supervisory-review proceedings;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention and domestic proceedings

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

According to the applicant , in DATE she lodged an action against the electricity supplier , seeking to have her home connected to the electricity supply network and asking for compensation for non - pecuniary damage .

On DATE ORG found for the applicant . That judgment was quashed on appeal on DATE and re - examination of the case was ordered .

On DATE ORG dismissed the action . The judgment became enforceable on DATE when ORG upheld it on appeal .

On DATE the Presidium of ORG , acting upon the applicant 's request , quashed the judgments of DATE and DATE , by way of supervisory - review proceedings , and remitted the case for a fresh examination .

On DATE ORG partly allowed the applicant 's action and ordered that the company connect the applicant 's home and pay her MONEY ( ORG , approximately CARDINAL euros ) in compensation . The judgment was upheld on appeal on DATE .

Enforcement proceedings were opened and on DATE the applicant received the awarded compensation , but the company refused to connect her home because it did not meet certain technical requirements . Thus , the applicant complained to a court that the bailiffs had failed to enforce the judgment of CARDINAL DATE , as upheld on appeal on DATE .

On DATE the ORG held that the bailiffs had been inactive in securing the execution of the judgment in the part concerning provision of electricity . ORG furthermore informed the applicant of the possibility of lodging a separate civil claim for damages against the local treasury . It appears that the applicant did not lodge such a claim .

NORP On DATE the company connected the applicant 's home to the electricity network .

On DATE a Deputy President of ORG of GPE introduced an application for supervisory review of the judgments of DATE and DATE .

On DATE the Presidium of ORG quashed the judgments of CARDINAL DATE and DATE by way of supervisory review and remitted the matter for a fresh examination . The ORG held that the District and the Regional courts had incorrectly assessed the facts of the case and misinterpreted the relevant legal norms .

On DATE ORG dismissed the applicant 's claims . On DATE ORG upheld the judgment . However , the applicant was not ordered to repay the compensation of RUR CARDINAL,CARDINAL and her house was not disconnected from the electricity network .

The applicant lodged an application before ORG , complaining about a violation of her rights in the course of the abovementioned domestic proceedings . On DATE she received an empty envelope from the ORG . The applicant complained to ORG about unlawful actions of the ORG post office . On DATE ORG instructed her to correct certain defects of her statement of claim by DATE . That instruction was upheld on appeal on DATE . There is no indication that the applicant fulfilled the courts ' instructions and apparently no further action has been taken .


The applicant , PERSON , is a NORP national , born in DATE and lives in GPE . He is represented before the Court by Mr N.Frangakis , a lawyer practising in GPE .

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

On DATE a car driven by the applicant ’s brother , which also carried the latter ’s wife and their CARDINAL children , deviated from its course , entered abruptly into the opposite circulation lane and crashed into a truck coming from the opposite direction . The collision had as a result the death of all the passengers of the car .

The site of the accident was inspected and it was found that the road surface at the collision point was slippery , due to the rain which had fallen . It was also established that the car ’s speed was higher than the maximum permitted speed in that sector . An expert ’s report concluded that because the load of the truck , its power and mass , it was impossible for it to maoeuvre and had caused the truck to drag the car backwards with only a small speed .

A preliminary investigation ( proanakrisi ) was initiated ex officio immediately , pursuant to LAW . On DATE the case file was sent to ORG .

On DATE the applicant brought criminal charges against the driver and the owner of the truck as well as against some others persons . He also notified the public prosecutor at ORG that he wished to take part in the criminal proceedings as a civil party . He asked for MONEY by way of compensation for non - pecuniary damage , expressly reserving his right to pursue the remainder of his claim before the civil courts .

On CARDINAL OctoberCARDINAL the applicant brought an action before the Single - Member First Instance Civil Court ( Monomeles Protodikio ) of PERSON against the driver of the truck and the insurance companies seeking compensation for non - pecuniary damage of an amount of CARDINAL CARDINAL CARDINAL drachmas . The examination of the case was adjourned because the criminal proceedings were pending .

The preliminary investigation lasted until DATE . A great number of witnesses was heard . On DATE the file was sent to the public prosecutor at the NORP criminal court .

On DATE the applicant submitted an application to the public prosecutor at the NORP criminal court , pursuant to LAW , requesting that the preliminary investigation should be complemented by a full investigation ( kyria anakrisi ) . Such an order was given on DATE .

On DATE the public prosecutor pressed charges for homicide by negligence against the driver of the truck and the representatives of the company that owned the vehicle .

On DATE ORG of ORG ( Symvoulio Plimmeliodikon ) of PERSON decided not to bring charges against the accused . It held that the steering system and brakes of the truck were functioning satisfactorily and that the truck driver could not be accused of reckless driving but had been unable to avoid the collision because of the negligent conduct of the applicant ’s brother . The latter was imprudent , was driving at an excessive speed and violated the double separation line of the road .

On DATE the applicant filed an appeal against the above decision of the indictments division . He complained that the decision was not sufficiently reasoned and that ORG had applied the relevant legislation erroneously .

On DATE the applicant ’s appeal was dismissed by ORG of ORG ( PERSON ) of LOC ( decision CARDINAL/CARDINAL ) . ORG confirmed the first instance decision and reiterated that the collision was due to the exclusive responsibility of the applicant ’s brother .

On DATE the applicant ’s civil action came for hearing before the ORG . The court heard a number of witnesses and examined the other evidence in the case .

On DATE the applicant appealed on points of law against the decision of CARDINAL DATE of ORG of ORG .

On DATE the civil court dismissed the applicants’ action on the merits ( judgment CARDINAL ) . It held that the applicant ’s brother was entirely responsible for the accident and that the truck ’s tyres and the fact that it was overloaded had no causal link to the accident and the fatal injury of the applicant ’s brother and his family .

On DATE ORG set aside the decision of ORG of ORG on the ground that it did not contain sufficient reasons , in the sense that the court of appeal had only made a general reference to the evidence before it and it could not , therefore , be deduced whether it had taken it all into consideration . In order to be re - examined , the case was referred back to ORG of ORG , sitting with a different composition .

On DATE ORG of ORG ruled that there was no case for the accused to answer ( decision PERSON ) .

On DATE the applicant lodged an appeal with ORG against the second decision of ORG of ORG . He claimed that the decision did not set out with sufficient clarity the relevant circumstances and evidence on which it was based .

On DATE ORG upheld the appeal on the ground that the impugned decision was lacking sufficient reasoning and referred the case back to ORG of ORG , sitting with a different composition . In particular , ORG found that the appealed decision ’s reasoning did not elaborate fully and clearly on the evidence bearing on the co - responsibility of the accused for the accident .

On DATE ORG of ORG decided for the third time not to press charges against the accused . It held that there were not sufficient indications pointing to the guilt of the defendant . For the third time , ORG held that the driver of the car had been driving at an excessive speed under the circumstances , as it transpired from the deposition of the driver of the car moving behind the applicant ’s brother . No liability could be established for the defendant , having regard to the conclusions reached after the inspection of the site of the accident , the diagram which was drawn up . It transpired that the defendant was driving at CARDINAL km / h , that is under the speed limit , was overloaded and circulating at the far right of his own traffic lane . The fact that the applicant ’s brother ’s car was dragged by the truck down the road was attributed to the slippery road and the defendant ’s confusion at the time of the collision .

On DATE the applicant appealed on points of law to ORG .

On DATE ORG dismissed the appeal on the ground that the action had become statute - barred . In particular , ORG held that the DATE period of limitation provided by the law for involuntary homicide had lapsed and thus the punishable character of the act allegedly committed by the defendant had disappeared .

Under LAW misdemeanours ( plimmelimata ) , such as the offence for which the driver and the representatives of the company would have been tried , are subject to a DATE prescription period , starting from the moment the offence takes place . According to LAW , the investigation and interlocutory proceedings ( e.g. the proceedings before the indictments chambers ) does not interrupt the running of the prescription period .


Violation of Art. 10;Not necessary to examine Art. 14+10;Violation of Art. 6-1;Not necessary to examine Art. 13;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses award - domestic proceedings;Costs and expenses award - Convention proceedings

NORP In DATE the applicant association published a book entitled GPE at war . There were CARDINAL versions – NORP , LANGUAGE , LANGUAGE and LANGUAGE – and the book was distributed in numerous countries , including GPE and GPE . According to the applicant association , this was a collective work containing contributions from a number of academics with specialist knowledge of ORG and giving an account of the historical , cultural , linguistic and socio - political aspects of the NORP cause . It ended with a political article entitled “ LOC at war , a promise of peace ” by the NORP national liberation movement .

The book was published in DATE . On DATE a ministerial order was issued by ORG under section CARDINAL of the LAW DATE , as amended by the decree of CARDINAL DATE , banning the circulation , distribution and sale of the book in GPE in any of its CARDINAL versions on the ground that “ the circulation in GPE of this book , which promotes separatism and vindicates recourse to violence , is likely to constitute a threat to public order ” . On DATE , pursuant to the aforementioned order , the département director of the airport and border police refused to allow over CARDINAL copies of the book to be brought into GPE .

On DATE the applicant association lodged an administrative appeal against the ban . When this was implicitly rejected , it appealed to ORG on DATE .

ORG held that it did not have jurisdiction and so referred the case to the ORG d’Etat . By a decision of CARDINAL DATE the President of ORG of the ORG d’Etat remitted the case to ORG .

In a judgment delivered on DATE after a public hearing in the presence of both parties , ORG rejected the applicant association ’s appeal on the following grounds :

“ It has been established that the book at issue entitled GPE at war was printed in GPE , that CARDINAL of its CARDINAL chapters were written by authors of NORP nationality and that the documentation used for the preparation of the publication was mainly of NORP origin . Therefore , and notwithstanding the fact that the book was published by the applicant association , which is based in GPE , the offending book must be regarded as of foreign origin within the meaning of the aforementioned provisions . Accordingly , the Minister of the ORG was legally entitled to prohibit the book ’s circulation , distribution and sale .

In taking the view that the book at issue could pose a threat to public order since it argued , particularly in LAW , that the violence of the NORP State justified the ORG terrorist organisation ’s ‘ proportionate counter - offensive’ , the Minister of the ORG did not make any obvious error in assessing the evidence .

Under LAW , ‘ [ e]veryone has the right to freedom ... ’ ; it is the task of the administrative courts to assess whether any restriction of the freedom of expression guaranteed by the above - mentioned LAW is proportionate to the legitimate aim being pursued and to assess whether the ban on a publication of foreign origin is in keeping with that aim . In the instant case the evidence does not show that the general prohibition of the book at issue was disproportionate to the public - order objectives being pursued ... ”

The applicant association lodged an appeal against this judgment with the ORG d’Etat on DATE . In its further observations , it asked the ORG d’Etat to find that section CARDINAL of the LAW DATE , as amended , was incompatible with Articles CARDINAL and CARDINAL of the LAW taken together .

On DATE the ORG d’Etat ruled that section CARDINAL of the Law of DATE , as amended , was not incompatible with Articles CARDINAL and CARDINAL of the Convention on the following grounds :

“ Under section CARDINAL of the Law of DATE , as amended by the decree of DATE , ‘ the circulation , distribution or sale in GPE of newspapers or texts written in a foreign language , whether periodicals or not , may be prohibited by a decision of the Minister of the ORG . Newspapers and texts of foreign origin written in NORP and printed abroad or in GPE may also be prohibited’ . In the absence of any statutory provision establishing the conditions circumscribing the legality of decisions taken on the basis of this provision , any restrictions of the Minister ’s power derive from the need to reconcile the general interests for which he is responsible with the respect due to public freedoms , particularly freedom of the press . When an appeal against such a prohibition order is lodged with an administrative court , it is duty - bound to assess whether the banned publication poses such a threat to these general interests that it warrants an infringement of public freedoms . Contrary to the applicant association ’s assertions , the power thus exercised by the Minister of the Interior , under the supervision of the courts , is not incompatible with the combined provisions of ORG CARDINAL and CARDINAL of ORG

On the other hand , the ORG d’Etat quashed the judgment and the ministerial order of CARDINAL DATE on the following grounds :

“ By the impugned order , the Minister of the ORG prohibited the circulation , distribution and sale of the collective work GPE at war , which must be viewed as a written text of foreign origin within the meaning of the aforementioned section CARDINAL of the PERSON of DATE . Having regard to the interests that the Minister is responsible for protecting , in particular public safety and public order , the ORG finds that the content of this publication does not provide sufficient legal justification for the serious infringement of press freedom embodied in the impugned decision .

It follows from the above considerations that the Association Ekin has good grounds for maintaining that ORG was wrong to reject , by means of the impugned judgment , the association ’s application to set aside the decision of CARDINAL DATE , taken on the basis of the aforementioned section CARDINAL of the LAW DATE , by which the Minister of the ORG prohibited the circulation , distribution , and sale in GPE of the book entitled GPE at war , published by the association ... ”

In a registered letter with recorded delivery received by ORG on DATE , the applicant association presented the Minister with a claim for compensation for the pecuniary and non - pecuniary damage caused by the application of the unlawful order of CARDINAL DATE for DATE . According to the applicant association , the implementation of this order amounted to tortious conduct on the part of the authority . It estimated the overall losses it had sustained at MONEY ( ORG ) , including ORG CARDINAL,CARDINAL resulting from the financial loss deriving directly from the prohibition of sales of the book throughout GPE . To date it has not had any reply from the Minister of the ORG . Under the rules of NORP administrative proceedings , this silence counts as a refusal of the applicant association ’s claim .

NORP The general rules governing the freedom of the press guaranteed by LAW and the Citizen , which has constitutional status , are mainly based on LAW DATE , as amended , which established a “ repressive ” system , so called because any offences that may have been committed are punished and any damage caused is made good ex post facto . This is the principle laid down by LAW DATE , as amended , when it states in LAW CARDINAL that “ anyone may print or sell books and other publications ” and in section CARDINAL that “ any newspaper or periodical may be published without prior authorisation or the payment of any security ... ” .

The NORP rules governing publications do nonetheless include forms of prior intervention which can lead to bans or seizures but are always subject to respect for the principle that they must be proportionate to the facts which prompt them .

Such measures are justified only by the need to protect public order against any unrest caused , or liable to be caused , by the distribution or sale of a publication . The PERSON d’Etat ruled on DATE ( Abbé de Kervenoael , PERSON , CARDINAL ) that “ the provisions of sections CARDINAL et seq . of the PERSON of DATE do not prevent mayors from taking measures under their general policing powers for the preservation of order and calm ” and that “ it is therefore their duty to prohibit the distribution on the public highway of written documents likely to cause unrest ” .

Nonetheless , as was established in a judgment of ORG of DATE ( L’action française , D.P. DATE , CARDINAL , DATE , conclusions by ORG , note by NORP ) , these means may only be deployed if there is no other way of preserving or restoring public order . They must also be proportionate to the disorder and limited in their duration and geographical scope to what is strictly necessary .

Under section CARDINAL of the PERSON , an investigating judge may order the seizure “ of written or printed documents , placards or notices ” , under the conditions laid down in LAW and “ in the cases contemplated in sections CARDINAL ( § § CARDINAL and CARDINAL ) , CARDINAL , DATE and DATE of the Law ” . These cases are incitement to or vindication of crimes ( section DATE ) , inciting military personnel to disobey orders ( section CARDINAL ) , and insulting heads of ORG and government and foreign diplomats ( sections CARDINAL and DATE ) . Section CARDINAL of the PERSON states : “ If there is a conviction , the court may , in the cases contemplated in sections CARDINAL ( § § CARDINAL and CARDINAL ) , CARDINAL , DATE and DATE , order the confiscation of any written or printed documents , placards or notices seized and , at any event , order the seizure and suppression or destruction of any copies put on sale , distributed or displayed in public . Suppression or destruction may however apply only to certain parts of the seized copies . ”

In addition , section CARDINAL of the Law of DATE , as amended , adds that , in cases of sentences passed under sections CARDINAL , CARDINAL ( § § CARDINAL and CARDINAL ) , or MONEY incitement to or vindication of crimes – and DATE penalising the offence of spreading false news – “ the suspension of the newspaper or periodical may be ordered in the same judgment for a period not exceeding DATE ” .

Administrative review has also been introduced in respect of certain specific types of publication . The main categories concerned are publications intended for young people or which may pose a threat to young people and publications which are of foreign origin or drafted in a foreign language .

This is chiefly the result of implementing the LAW DATE , which established the specific rules governing “ publications intended for young people ” which may be applied to all publications posing a threat to this type of reader . These rules , which stem from a desire to protect young people , are in fact twofold in nature since they relate both to publications “ mainly intended for children and adolescents ” and to publications “ of all types that may pose a threat to young people ” .

A system of administrative supervision also operates pursuant to section CARDINAL of the Law of DATE , as amended by the decree of DATE , which reads as follows :

“ The circulation , distribution or sale in GPE of newspapers or texts written in a foreign language , whether periodicals or not , may be prohibited by a decision of the Minister of the ORG .

Newspapers and texts of foreign origin written in NORP and printed abroad or in GPE may also be prohibited .

When performed knowingly , the sale , distribution or reproduction of banned newspapers or written texts shall be punishable by a DATE prison sentence and a fine of MONEY .

The same applies if the publication of a banned newspaper or written text is resumed under a different title . In this case , however , the fine shall be increased to MONEY .

All copies and reproductions of banned newspapers and written texts and of any which resume publication under a different title shall be liable to administrative seizure . ”

Case - law has fleshed out the conditions for the application of this rule . It has both defined the concept of “ foreign origin ” and established the grounds on which publications can be banned , wherever they are not laid down by statute .

The test used by the administrative courts to determine whether a publication is of foreign origin is made up of a number of strands woven together into the theory of “ convergent evidence ” . According to the submissions of Mr Genevois , the Government Commissioner in the case of the Minister of the ORG v. ORG PERSON ( PERSON d’Etat ( “ CE ” ) , Ass . , DATE , PERSON , p. CARDINAL ) , the ORG d’Etat takes account of both material and intellectual factors : “ The material factors are those relating to the conditions in which the text was printed . Even if it was printed abroad , a book written in LANGUAGE by a NORP author can be considered to be of foreign origin only if it is established that foreign assistance made possible or helped to make possible its production or publication ... The intellectual factors relate to the inspiration and the content of the book . It was on the basis of such factors that [ the PERSON d’Etat ] held that a publication which presented itself either as the NORP edition of a foreign publication or as the NORP edition of the texts and articles contained in that publication should be regarded as being of foreign origin within the meaning of section CARDINAL even though the publishers were LANGUAGE ( CE , Ass . , DATE , ORG PERSON , p. CARDINAL ) . ”

The PERSON d’Etat has regarded all the following factors as indications of a publication ’s foreign origin : the author ’s nationality and place of residence ( CE , DATE , Monus , p. CARDINAL ) , the fact that the publication was a translation ( ORG , DATE , PERSON les CARDINAL de la terre du feu , p. CARDINAL ) , the nationality of the publisher and the country in which the text was published ( CE , Ass . , DATE , cited above ) , the country in which it was published or printed ( CE , Sect . , CARDINAL DATE , PERSON , p. CARDINAL ) , the fact that foreign assistance was provided ( CE , Sect . , DATE , PERSON , p. CARDINAL ) , or foreign documentation and inspiration .

None of these factors suffices alone . For instance the fact that the author is a foreign national is not enough in itself for section CARDINAL to be applicable . The status of the publication is decided on by considering all of these indications taken together .

Although the law did not indicate the grounds on which it should be applied , the case - law of the ORG d’Etat has established the rule that section DATE can be applied only for certain reasons relating to the public interest and public order . Initially , the administrative courts did not carry out any review of the assessment of the facts warranting the measure nor , a fortiori , did they consider the proportionality of the measure . They checked whether the reasons given by the authorities to justify the use of section CARDINAL were legitimate by ensuring that they duly came within the PERSON ’s scope ( see , for example , CE , DATE , NORP and PERSON , PERSON , p. CARDINAL , and ORG , DATE , ORG , PERSON , p. CARDINAL , concl . Braibant ) .

The main grounds which the ORG d’Etat has considered to be “ among those which can justify in law a measure taken under ” section CARDINAL of the Law of DATE , as amended , are as follows : the protection of public order ( see , for example , CE , Ass . , DATE , cited above ) , the immoral nature of the publication concerned ( see , for example , ORG , DATE , cited above ) , and the need to combat racist ideology , in particular the revival of national - socialist ideology ( ORG , DATE , Sté les ORG , p. CARDINAL ) .

Applications for judicial review of decisions taken by the Minister of the ORG under LAW of DATE may be made to the administrative courts and subsequent appeals lie to the administrative courts of appeal set up by the PERSON of DATE . The Minister ’s decisions can also be quashed by the ORG d’Etat which acted as the appellate court in such cases before the DATE reform . On the other hand , stays of execution of bans on publications are not granted by the administrative courts since they consider that the damage caused by the application of such bans is not irreparable and accordingly is not of a nature to justify a stay of execution ( CE , DATE , ORG and ORG du ORG , ORG , DATE , p. CARDINAL ) .

The administrative courts begin by carrying out a review of the “ outward legality ” of the measures taken under LAW , in other words they consider whether the authorities have respected the rules of jurisdiction , procedure and form . In so doing they pay particular attention to the grounds for the measure , which must comply with LAW , and verify that the rights of the defence , as set out in section CARDINAL of the decree of CARDINAL DATE , have been respected . This decree , which applies to the authors of publications covered by LAW , as amended , and to those whose writings are covered by the law on publications intended for , or posing a threat to , young people , provides that , “ save in exceptional or emergency situations and subject to the requirements of public order ” , such decisions “ may legally be taken only once the party concerned has been given the opportunity to submit written observations . Anyone concerned ... must be heard , if he or she so requests , by the official responsible for the case or , failing that , a person authorised to record his or her oral observations . Such persons may be assisted or represented by a lawyer of their choice ” .

Secondly , the administrative courts also review the “ internal legality ” of the measures concerned , the scope of which changed on promulgation of the legislative decree of DATE . The ORG d’Etat has always made sure that the authorities have had good grounds to describe the publication as being “ of foreign origin ” , that they have made no legal error in the application of the law , that they have not based themselves on factually inaccurate evidence and that they have not abused their powers . However , in their earlier decisions , the administrative courts did not review the assessment of the threat posed to public order or the public interest by the publication at issue .

A major development in the case - law on this matter has occurred since .

Initially , in its ORG judgment of CARDINAL DATE ( ORG PERSON , cited above ) , the PERSON d’Etat decided to broaden its review of the legality of ministerial decisions taken under LAW by extending it to cover manifest errors of judgment , that is by checking that a serious error of judgment had not led to a manifest disproportion with the facts that had prompted them .

Then , when the applicant association brought the instant case before it , the ORG d’Etat decided to depart from its previous case - law and broaden the scope of its review . The effect of the PERSON d’Etat ’s ruling of DATE is that the administrative courts must conduct a “ full ” review of the grounds for the decision . In its judgment the ORG d’Etat held that it is the administrative ORG duty to “ consider whether the banned publication is likely to cause such damage [ to the general interests for which the Minister is responsible ] as to warrant an infringement of public freedoms ” .