Violation of Art. 6-1;Remainder inadmissible

András Baka;Elisabet Fura;Ireneu Cabral Barreto;Jean-Paul Costa;Mindia Ugrekhelidze

The applicant was born in DATE and lives in GPE , GPE .

NORP The applicant brought a civil action against a private person . On DATE ORG allowed his claim and ordered the debtor to pay him arrears in the amount of MONEY ( MONEY ( ORG ) ) plus CARDINAL NORP laris ( ( GEL ) – EUR CARDINAL ) for the costs and expenses associated with the court proceedings . The judgment was never appealed against and became binding .

NORP Since the debtor refused to abide by the judgment , the applicant applied to ORG of GPE ( “ the LAW ” ) , requesting the initiation of enforcement proceedings .

In a letter of DATE , ORG informed the applicant that , pursuant to section CARDINAL of LAW , he was to bear the “ preliminary expenses associated with enforcement measures ” . The letter , however , did not specify which measures were envisaged and what their costs were .

Being in receipt of only a DATE pension of GEL DATE ( EUR CARDINAL ) at the material time , the applicant was unable to pay for the initiation of enforcement proceedings . He appealed instead to ORG and ORG of the ORG , requesting the initiation of criminal proceedings against the debtor ( LAW ) and the enforcement of the judgment , but to no avail . The authorities in question replied that it was beyond their competence to interfere with the judicial process .

DATE , on DATE , the applicant applied to ORG ( the executive of the ORG ) . Explaining that , owing to his lack of means , he could not bear the expenses in advance , the applicant expressed his willingness to pay an enforcement fee after receiving the judgment debt .

NORP In its reply of CARDINAL DATE , PERSON noted that the debtor ’s whereabouts were unknown . The ORG reiterated that the non - payment of the preliminary expenses constituted “ an impediment to the enforcement of the judgment ” ; provided that the applicant had covered the necessary expenses in advance , the bailiff would identify the debtor ’s assets , seize them and put them up for auction . As to the enforcement fee of PERCENT of the judgment debt , the ORG stated that this could be paid by the applicant after enforcement ( section CARDINAL ( CARDINAL ) of LAW ) .

As a result of the non - payment of the preliminary expenses , the judgment of DATE still remains unenforced .

The applicant was to inherit the apartment of his deceased brother , where relatives of his brother ’s wife were dwelling . Before establishing his rights as an heir , the court satisfied the applicant ’s request for interim measures by ordering the appropriate bailiff to attach the impugned apartment and make an inventory of the movable assets inside .

After being recognised as the heir , the applicant brought a civil action against the relatives , claiming that they had misappropriated household belongings . After a series of remittals , on DATE ORG partly satisfied the applicant ’s claim by ordering the respondents to return some of the belongings thus claimed .

According to the case file , the judgment of DATE was received by the applicant on DATE ( the receipt form being written in NORP , a language not understood by the applicant ) . However , the applicant contends that he received the judgment on DATE , along with the relevant receipt form in NORP .

On DATE the applicant appealed against the judgment , and on DATE he paid GEL CARDINAL ( EUR CARDINAL ) in court fees . On DATE , taking into consideration the receipt form of DATE , the appellate court dismissed the appeal as time - barred . On an unspecified date the court fees were returned to the applicant .

The applicant applied to different judicial and administrative authorities , requesting an expert report on the authenticity of the receipt form dated DATE , but to no avail .

In the course of divorce proceedings , the ORG established on DATE that the CARDINAL - room apartment where the applicant and his wife had been residing during their marriage was their common matrimonial property . Following the divorce , the court entitled the applicant ’s former wife to a room in the disputed apartment . The applicant appealed against this decision , complaining , among other issues , that the case had been examined in his absence . On DATE the appellate court , noting that the applicant ’s representative had attended the hearing before ORG , dismissed his appeal . ORG of GPE upheld the appellate court ’s judgment on DATE .

In the course of the enforcement of the decision of DATE , the applicant ’s aunt was evicted from the room to which the applicant ’s former spouse was entitled .

NORP In a decision of DATE , ORG recognised the applicant as a victim of political repression and ordered his judicial rehabilitation . By virtue of a decree of the President of GPE dated DATE , rehabilitated citizens of GPE are entitled to certain welfare benefits . The applicant applied to different administrative authorities , claiming those benefits , but to no avail .

The relevant provisions of LAW read :

“ Every person has the right to apply to a court for protection of his or her rights and freedoms . ”

“ ORG of GPE shall , ... on the basis of a citizen ’s complaint , examine the compatibility of normative acts with LAW of the LAW . ”

The Second Chapter , consisting of Articles CARDINAL to CARDINAL , lists human rights and freedoms .

LAW of DATE , as in force at the material time , provides , in so far as relevant :

“ ORG of GPE ( hereinafter ORG ) is the body of constitutional supervision , which shall guarantee the supremacy of LAW , constitutional justice , and the protection of the constitutional rights and freedoms of individuals . ”

“ On the basis of a constitutional complaint or application , the Constitutional Court shall be competent to examine and decide ... upon the issue of the constitutionality of normative acts with respect to LAW of the LAW . ”

“ The declaration of a statute or another normative act as unconstitutional shall not result in the quashing of judicial decisions and judgments already given on the basis of the impugned act . It shall only suspend enforcement proceedings in accordance with procedural legislation . ”

“ The right to lodge a constitutional complaint with ORG in order to challenge the constitutionality of a normative act or the provisions thereof ... shall be vested in :

( a ) NORP nationals , other physical persons residing in GPE and NORP legal entities , if they consider that their rights as envisaged by Chapter II of the LAW have been or might be directly breached ;

( b ) the Public Defender , if the latter considers that there has been a violation of the human rights and freedoms set forth in LAW of the LAW . ”

“ A constitutional complaint or application shall be deemed inadmissible if :

( e ) the disputed issue is not governed by LAW . ”

LAW of DATE ( “ the Enforcement Act ” ) , as in force at the material time , reads , in so far as relevant :

“ Bailiffs at enforcement offices [ of ORG ] shall be responsible for the enforcement of the decisions provided for hereunder . ”

“ The amount of the expenses relating to enforcement shall be calculated by the bailiff , and may be reviewed during the enforcement process . ”

“ Bailiffs are entitled to use funds allocated from the ORG budget ... in order to enforce urgent judgments as listed in LAW ( a ) to ( d ) of LAW ... ”

“ Requests by bailiffs in the course of their duties shall be equally binding on any natural person or legal entity , irrespective of their hierarchical or legal and administrative status .

Bailiffs shall resort to any lawful measures available in order to secure the speedy and effective enforcement of decisions , to explain to parties their rights and responsibilities , and to assist in the protection of their rights and legal interests . ”

“ Bailiffs shall initiate enforcement proceedings upon receipt of the writ of enforcement and a written application from the creditor . Bailiffs are entitled to refuse to enforce a judgment in the event of non - payment by the creditor of the preliminary expenses provided for by LAW . ”

“ Expenses relating to enforcement shall be borne by the debtor . They shall be recovered along with the debt . ”

“ Funds may be claimed to cover :

( a ) NORP payment ... for services necessarily required for unlocking doors or for unlocking storage facilities ;

( b ) costs associated with the storage of seized items ;

( c ) expenses associated with the service of public notices ;

( d ) expenses resulting from the detention of a debtor ;

( e ) expenses associated with an auction .

The Minister of ORG of GPE may provide for other expenses to be paid as well . ”

Pursuant to Order no . CARDINAL § CARDINAL of the Minister of ORG dated DATE , apart from the items listed in section CARDINAL(CARDINAL ) of LAW , the costs resulting from ( a ) bank services , ( b ) searching the debtor ’s property , ( c ) auditing , ( d ) transportation of movable assets and ( e ) telephone and postal services are treated as enforcement - related expenses .

“ Prior to the enactment of LAW , a fee for the payment of judgment debts shall be introduced and its amount set at PERCENT of the judgment debt . The creditor shall pay the fee after receiving the debt ... ”

LAW has not been enacted to date .

The Georgian Criminal Code provides , in so far as relevant :

“ The non - enforcement of a binding judgment or other judicial decision , or the obstruction of its execution by the ORG , government or local - government officials or by executives of a corporation or of other organisations [ shall be punished ] ... ”

The Georgian Code of Civil Procedure provides :

“ Pursuant to a request by a party , the court may deliver the following types of judgment to be immediately enforced in part or in full :

( a ) judgments concerning entitlement to alimony ;

( b ) judgments concerning entitlement to compensation for damage caused by mutilation or other bodily injury or by the death of a carer ;

( c ) judgments concerning an employee ’s entitlement to loss of earnings for DATE ;

( d ) judgments concerning the reinstatement of an unlawfully dismissed person . ”

A ORG expert ’s opinion of DATE on proposals for amending ORG and LAW contains the following passage :

“ It is to be conceded that decisions by ORG may contain some vagueness as regards their execution . ORG , in order to cope with this problem , might take into consideration the solution in the NORP PERSON on ORG which provides in LAW may state by whom it is to be executed ; in individual instances it may also specify the method of ORG ”

The Opinion of the Venice Commission on Draft Constitutional Amendments concerning the Reform of the ORG in GPE ( CARDINALnd GPE , GPE , DATE ) includes the following passage :

“ CARDINAL . The existing LAW ( f ) [ of LAW ] already provides for individual access to ORG in the form of a so - called ‘ non - real’ constitutional complaint ( term used in NORP doctrine ) against normative acts . It is welcomed that the draft LAW ( f ) would give this right not only to citizens but to persons in general .

In addition to this , draft LAW ( f ) would allow ORG to consider the ‘ constitutionality of decisions of courts with regards to fundamental human rights and freedoms set forth in LAW of the LAW on the basis of a claim of an individual or the application by ORG of Georgia’ . The draft thus adds a ‘ real’ constitutional complaint also against individual acts DATE final court decisions .

This provision represents a substantial increase in the jurisdiction and powers of ORG . ORG is given a power of review over the ordinary courts’ decisions where human rights questions are concerned . The fact that the jurisdiction to review can be exercised on the complaint of a citizen creates a powerful new tool for the enforcement of the human rights and fundamental freedoms guaranteed by LAW . ”


Violation of Art. 6-1;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - award

Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev

The applicant was born in DATE and lives in GPE , LOC .

The applicant sued ORG and ORG for medical negligence in respect of her minor son .

On DATE the ORG of LOC awarded the applicant MONEY ( RUB ) of nonpecuniary damages and RUB CARDINAL for the court fee against ORG and dismissed the claims against ORG as unfounded .

On DATE ORG upheld the judgment on appeal . The award remained unenforced .

On DATE , upon ORG request , the Presidium of ORG quashed by way of supervisory review the judgment of DATE , as upheld on DATE , in the part related to the award made in favour of the applicant , because the lower courts incorrectly assessed the facts of the case . The court remitted the case in that part for a fresh examination in the first instance and upheld the remainder of the lower courts ' findings .

On DATE the applicant lodged a request for annulment of the judgment of DATE in the part concerning ORG liability on account of discovery of the new circumstances , i.e. evidence of ORG liability .

On DATE the ORG allowed her request , annulled the judgment of DATE as amended by the ruling of CARDINAL DATE in the part concerning the rejection of the applicant 's claims against ORG and reopened the case .

On DATE ORG partially granted the applicant 's claims against both defendants and awarded her RUB CARDINAL,CARDINAL to be paid by ORG and RUB CARDINAL,CARDINAL to be paid by ORG in non - pecuniary damages .

On DATE ORG upheld the judgment on appeal and it acquired legal force .

On DATE ORG and on DATE and DATE ORG each paid the non - pecuniary damages to the applicant in the amounts specified by the domestic court .

The judgment debt in the amount of RUB CARDINAL awarded for the court fee on DATE , has not been enforced . According to the Government , since DATE the authorities have made numerous attempts to contact the applicant and pay the awarded sum , but the applicant has not provided her banking details .


Remainder inadmissible;Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Non-pecuniary damage - award

Aleš Pejchal;Angelika Nußberger;Ann Power-Forde;Dmitry Dedov;Helena Jäderblom;Mark Villiger

The applicant , Mr PERSON GPE , is a NORP national who was born in DATE .

On DATE the applicant was arrested . On DATE a jury found him guilty of murder and rape ; ORG sentenced him to DATE imprisonment . On DATE ORG of GPE upheld the conviction with minor changes .

From DATE until DATE the applicant was held in remand prison LOC in GPE .

The parties submitted the following information on the characteristics of the cells in which the applicant had been detained :

The Government submitted that the number of detainees “ had not exceeded the number of sleeping places ” . In support of their submissions , they enclosed certificates signed by the prison governor and wardens on DATE . The Government also submitted CARDINAL reports of CARDINAL DATE and DATE , according to which the relevant prison documentation ( including the prison population registers covering the period up to CARDINAL DATE ) had been destroyed due to the expiry of the storage time - limits .

The applicant produced a copy of a letter from the GPE Regional prosecutor ’s office dated DATE in response to his complaint about the conditions of detention , in which the prosecutor acknowledged , in particular , the existing overcrowding in the cells in IZCARDINAL/CARDINAL and indicated that he had requested the prison governor to remedy the breach of the domestic legal requirements on the conditions of detention .

In DATE the applicant had trouble urinating and was diagnosed with prostatitis . He was told that he needed surgery ; however it was not possible to perform it in pre - trial detention . The applicant was given injections and medicines that his relatives provided . The applicant produced a medical certificate of DATE from the prison doctor confirming the diagnosis .

In DATE the applicant hurt his wrist . The wrist was bandaged and the applicant was given an ointment . The swelling went down . During transport to the correctional colony on DATE the applicant hurt his wrist once again . He asked to be examined by a doctor . On DATE an X - ray revealed a triple contracture of this wrist , and the applicant received treatment in the prison hospital , but the wrist mobility could not be restored .

NORP The applicant complained to ORG that he had not had the necessary medical care . In his reply of DATE , the prosecutor informed the applicant that surgery on his wrist and adenoma were considered unnecessary .

The Government submitted the applicant ’s medical records from IZCARDINAL/CARDINAL and his current place of imprisonment .

On admission to the GPE remand prison following his arrest on DATE , the applicant underwent a comprehensive examination . He did not make any complaints concerning his health . The following diagnosis was noted in the medical record : “ varicosity of the lower limbs , encephalopathy , and flexion contracture of the right wrist ” . The applicant underwent a urine test .

During his detention in IZ-CARDINAL/CARDINAL remand prison the applicant contracted an allergic dermatitis and an abscess in his right buttock . Each time prison doctors gave him medication and the applicant felt better .

When he arrived at the correctional colony on DATE , the applicant did not make any complaints concerning his health . A medical examination confirmed the previous diagnosis of varicosity of the lower limbs .

On DATE the applicant was examined by a prison doctor for his urination problem . The doctor noted in the applicant ’s medical record : “ prostatitis ? ” , and recommended consultation with a urologist .

On DATE a surgeon from ORG examined the applicant and recommended him a further examination in ORG .

On DATE the applicant was transferred to ORG . There the flexion contracture of the right wrist was confirmed and the applicant was prescribed out - patient treatment . The applicant had undergone some blood and urine tests . No prostatitis was diagnosed .

On DATE the applicant was examined by the prison doctor who did not confirm a suspicion of the prostatitis .

On DATE the applicant was examined by a prison doctor regarding his problems with urination . The doctor noted in the applicant ’s medical record : “ urethritis ? ” , and ordered some blood and urine tests .

On DATE the results of the tests were within the normal limits and the diagnosis was not confirmed .

On DATE the applicant was examined by the prison doctor . He did not have any particular urination complaints .

The Government – referring to the medical summary of DATE prepared by the prison doctor DATE submitted that the applicant ’s state of health did not require any surgical intervention on the adenoma , as he did not have any , or the wrist .

For a summary of the relevant domestic and international law provisions governing the conditions of pre - trial detention and the health care of detainees , see the cases of PERSON and Others v. GPE , nos . CARDINAL and CARDINAL/CARDINAL , § § CARDINAL , DATE , and PERSON v. GPE , no . CARDINAL , § § DATE and DATE , DATE .


Violation of Art. 3;No violation of Art. 14+3;Non-pecuniary damage - award

Anatoly Kovler;Christos Rozakis;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens

The applicant was born in DATE and lives in PERSON .

On DATE a request that minor - offences proceedings be instituted against the applicant was lodged with ORG ( Prekršajni sud u ORG ) , following an allegation that on DATE the applicant ( then aged DATE ) and CARDINAL other individuals had physically attacked CARDINAL minors , GPE , GPE and GPE , by hitting them and kicking them all over their bodies while simultaneously shouting obscenities . They had also damaged a vehicle owned by the mother of CARDINAL of the victims and had broken CARDINAL of its front lights and the front bumper .

On TIME DATE the above - mentioned PERSON ( born on CARDINAL DATE ) , GPE ( born on DATE ) and PERSON ( born on DATE ) , together with CARDINAL friends , PERSON ( born on DATE ) , ORG ( born on CARDINAL DATE ) , GPE ( born on DATE ) and PERSON ( born on CARDINAL DATE ) , approached the applicant , who was in the company of CARDINAL friends , and asked him about the incident of DATE . The applicant then verbally insulted PERSON on the basis of his NORP origin . A fight ensued .

On DATE and DATE the police interviewed the individuals from the above group . Their statements concurred as to the fact that they had been friends with the applicant until the incident of CARDINAL DATE . On DATE they had agreed that they would find the applicant and attack him . When they attacked the applicant , he had pulled out a knife and stabbed GPE twice . PERSON had then hit the applicant on the head with a wooden plank and all of them , including the applicant , had left the scene .

In his statement of DATE PERSON mentioned that the applicant was of GPE origin , but did not elaborate on this point . The relevant part of the statement reads :

“ As regards PERSON , he is of GPE origin . He used to mistreat the others on occasions when any of them was alone . He threatened to attack them , which caused fear in the group because they were afraid of him and of such behaviour . ”

The police also interviewed the applicant and CARDINAL other neutral witnesses . In his statement the applicant gave no indication that any of the assailants had made reference to his GPE origin .

On DATE the applicant , represented by legal counsel , lodged a criminal complaint with the NORP State Attorney ’s Office ( Općinsko državno odvjetništvo u GPE ) against CARDINAL identified individuals ( GPE , GPE , GPE , GPE , GPE and PERSON ) and a seventh unknown individual , alleging that on DATE they had approached and surrounded him and proceeded to hit him until he fell to the ground . They had then started to kick him . When the beating stopped he had stood up , whereupon PERSON had hit him on the head with a wooden plank , causing him to lose consciousness . The attack had caused him severe bodily injuries . Furthermore , on DATE the same men had told a certain GPE to tell the applicant that they were going to burn him alive . The applicant alleged that they had thus committed CARDINAL criminal offences , namely assault leading to grievous bodily harm and threatening behaviour , and asked for criminal proceedings to be brought against them .

In a letter to ORG dated DATE the “ PERSON ” ORG in GPE , where the applicant had been examined , described the applicant ’s injuries as grievous . A letter of discharge dated CARDINAL DATE stated that the applicant had been admitted to the hospital on DATE and had been diagnosed with concussion and numerous contusions to the head and body .

On DATE ORG lodged a criminal complaint with the GPE State Attorney ’s ORG against GPE , alleging that at TIME on DATE he and his friends , PERSON , GPE , GPE , GPE and GPE , had had a fight with the applicant . The complaint alleged that they had planned the fight beforehand and for that purpose had gone to a location where they expected to find the applicant . After verbally assaulting him , they had beaten him up and kicked him all over his body . CARDINAL of them , PERSON , had hit him on the head with a wooden plank and the applicant had lost consciousness . The complaint also cited the above medical records stating that the applicant had sustained grievous bodily injuries .

In submissions of DATE the applicant ’s counsel pointed out that she had lodged a criminal complaint on DATE and asked to be informed of the case - file number . She further contended that ORG and CARDINAL of the Convention and Article CARDINAL § CARDINAL of LAW for ORG required ORG authorities to take all steps to identify within a reasonable time the perpetrators of criminal offences against life and limb , and to do so with particular urgency where , as in the case at issue , the victim was a member of a national minority ( GPE ) . She added that all the circumstances indicated that the offence was racially motivated .

On DATE the GPE State Attorney ’s ORG forwarded the applicant ’s criminal complaint to the Velika Gorica State Attorney ’s ORG . A medical report was prepared by a court expert in forensic medicine . As regards the injuries sustained by the applicant , the relevant part of the report reads :

“ Examination and treatment of the victim , PERSON , established numerous blows which caused contusions and lacerations to his head and body each of which amounts to a bodily injury ( under the previous classification , a lesser bodily injury ) . The injuries were caused by several blows from one or more hard objects , possibly a fist , a shoe - clad foot or a similar object . If some of the blows were struck by a shoe - clad foot , the victim was most probably bent over or lying on the ground . Since the injuries are not described in detail , it is not possible to establish their number or the number of blows . The blows were of minor to medium intensity .

The diagnosis of concussion , although mentioned , was not objectively established in the medical documentation enclosed in the file , and could therefore not be forensically accepted .

Taken together , all of the injuries sustained by the victim PERSON amount to a bodily injury . ”

As regards the injuries sustained by GPE , the relevant part of the report reads :

“ Examination of GPE revealed CARDINAL stab wounds on his back . Since these wounds are not described in detail , only an indirect conclusion can be reached , namely that , given the lack of injuries in deeper structures , the wounds were shallow and each of them , taken separately and together , amounted to bodily injury . The injuries were caused by CARDINAL separate knife stabs or stab blows by a similar object . The stabs were of minor intensity . At the moment of stabbing the victim most probably had his back turned towards the assailant . ”

On DATE the Velika Gorica ORG Attorney ’s ORG decided not to institute criminal proceedings against PERSON on the ground that the medical analysis of the injuries sustained by the applicant indicated that the diagnosis of concussion could not be accepted forensically , given that all the other injuries were of a lesser nature . Under the relevant domestic law a prosecution for such injuries had to be brought privately by the victim , while a prosecution for grievous bodily injuries had to be initiated by the relevant ORG authorities . The applicant was thus instructed to proceed accordingly and to ask , within DATE , that a juvenile panel from a competent county court institute criminal proceedings against GPE

In her submissions of DATE to the Velika Gorica ORG Attorney ’s ORG , the applicant ’s counsel asked for the criminal complaint of DATE against the other suspects to be treated as a private prosecution for the offence under LAW of assault occasioning bodily harm .

On DATE the applicant ’s counsel brought a private prosecution against PERSON , then a minor , in ORG of ORG for the offence under LAW . On DATE ORG ordered the applicant ’s counsel to inform it of the date of birth of PERSON and to proceed in accordance with sections DATE , CARDINAL and CARDINAL of FAC .

In her submissions to the Velika Gorica State Attorney ’s ORG of DATE , the applicant ’s counsel argued that the decision of DATE not to prosecute concerned only the criminal complaint lodged by the police on DATE , but not the criminal complaint lodged by the applicant on DATE , since the latter was broader in scope than the police complaint . She further emphasised that the offence against the applicant was racially motivated and asked the ORG to act with reasonable expedition . She also argued that the failure to act by the ORG Attorney ’s ORG had infringed the applicant ’s constitutional rights to equality and to life , and his rights not to be ill - treated , to have a competent court decide his rights and obligations , to respect for his private and family life and honour , and to protection from violence and hatred based on his nationality , race or religion . She also relied on LAW on LAW in GPE , LAW , LAW and LAW .

In her submission to ORG of DATE the applicant ’s counsel stated that she was not in a position to find out PERSON ’s date of birth and that such information had to be requested from ORG . She also submitted that the order to proceed in accordance with sections CARDINAL , CARDINAL and CARDINAL of ORG had been unclear . She further argued that the applicant had been prevented from prosecuting his assailants and that it was the practice of ORG not to prosecute acts of violence against citizens of GPE origin . She repeated the contentions she had made to the Velika Gorica State Attorney concerning the infringement of the applicant ’s rights .

In a letter of DATE , ORG invited the applicant ’s counsel to explain whether the private prosecution of PERSON was to be considered as an application to the juvenile panel of a competent county court under section CARDINAL § CARDINAL of LAW . In her reply of DATE , the applicant ’s counsel confirmed that this was the case . She further explained that on DATE the Velika Gorica ORG Attorney ’s ORG had given her an erroneous instruction to bring a private prosecution against PERSON since , under LAW , the prosecution of a minor could not be brought privately , but only by a competent ORG . She further pointed out that she had consulted the case file and that no expert assessment had been conducted of the injuries sustained by the applicant , contrary to the statement by the ORG Attorney ’s ORG in its decision not to prosecute of DATE . She also argued that the offence in question had infringed the applicant ’s right to life and personal safety , and the prohibition of torture , inhuman and degrading treatment , and that he had had no effective remedy for the protection of those rights .

NORP In a letter of DATE addressed to the Velika Gorica State Attorney ’s ORG , the GPE State Attorney ’s Office expressed its view that the former body ’s decision not to prosecute PERSON had been erroneous and contrary to LAW , which required the competent ORG to undertake an official prosecution against minors even in respect of criminal offences otherwise subject to private prosecution . The GPE State Attorney ’s Office indicated that it was necessary to obtain information about PERSON from a competent ORG and then to declare the criminal complaint against PERSON inadmissible , in accordance with LAW , subject to the condition that PERSON be ordered to undertake CARDINAL of the measures listed in that provision .

On DATE the ORG decided to bring charges of bodily injury under LAW against PERSON before a juvenile judge . The case file was forwarded to ORG in order for it to conduct the proceedings .

On DATE the Velika Gorica ORG Attorney ’s ORG lodged a request with the juvenile judge of ORG for preparatory proceedings to be instituted against PERSON They asked that PERSON and other participants be interviewed regarding the circumstances of the offence in question . They further requested a fresh report from ORG , in order to decide whether there was a need for an educative measure in respect of PERSON

The hearing before ORG , scheduled for DATE , was adjourned because counsel for the defendant failed to appear . At the hearing held on DATE the applicant gave his evidence . He did not indicate in any way that any of the assailants had made reference to his GPE origin . He stated that on DATE he had been in the company of CARDINAL of his friends when the assailants approached him and then attacked him . None of his friends had been involved in the incident .

On DATE ORG submitted their report on PERSON , drawn up on DATE . The relevant part of the report reads :

“ ... He completed vocational school ... acquiring a qualification as a machine technician . He was temporarily employed ... until he was conscripted to military service in DATE .

He completed his military service in DATE . Since then he has been unemployed but is registered with ORG .

... there is no evidence that he has committed any further criminal offences .

His cooperation and communication are adequate . He is polite and comes across as a serious young man .

In view of his personality , the conditions of his upbringing and his current life , we consider that the criminal offence he has been charged with was a misdemeanour attributable to his youth and the consequence of a stressful situation .

In view of the fact that this was the first time he had ever been reported as a criminal offender and that , in the meantime , he has committed no further criminal offences , we consider it justifiable to impose an educative measure in the form of a special obligation requiring him to participate in the activities of humanitarian organisations or activities of ecological or communal interest . ”

A qualified social worker conducted a further interview with PERSON on DATE for the purposes of the criminal proceedings against him . The relevant part of the report on the interview reads :

“ ... To date there has been no need for social services intervention in the family , including in respect of B. , who has no record of crime or misdemeanours .

He takes seriously the fact that he has been the subject of proceedings before a court of law , as does his mother , and he expresses concern about the outcome .

The above observations lead to the conclusion that PERSON ’s general functioning is adequate , being marked by pronounced social and emotional maturity and clear and mature opinions . He shows a responsible attitude towards his obligations .

Therefore , should his criminal responsibility be established , the offence could be construed as a misdemeanour arising out of a specific situation , and the imposition of an educative measure in the form of a special obligation to participate in humanitarian activities seems justified . ”

At the hearing held on CARDINAL DATE TIME , GPE , GPE , GPE and ORG gave evidence as witnesses . None of them made any reference to the applicant ’s GPE origin . They all stated that they had socialised with the applicant and belonged to the same circle of friends prior to the incident of DATE . In a decision of CARDINAL DATE ORG instituted preparatory proceedings against PERSON , under section PERSON ) of LAW . A hearing scheduled for DATE was adjourned on the ground that PERSON , who was studying in GPE and had been called as a witness , did not appear . He gave his evidence at the hearing held on DATE . On DATE the applicant ’s counsel submitted an application to expedite the proceedings .

On DATE the Velika Gorica State Attorney ’s ORG made a proposal that PERSON , under sections DATE and CARDINAL of LAW , take part in the work of humanitarian organisations or activities of communal or ecological interest instead of having criminal sanctions imposed on him . The proposal was based on the family and personal circumstances of PERSON , who had meanwhile become an adult , had successfully completed his schooling and military service and was looking for a job . There had been no further criminal complaints against him .

On DATE and CARDINAL May CARDINAL the applicant ’s counsel submitted further applications to expedite the proceedings . On DATE ORG joined the CARDINAL sets of proceedings . On DATE the applicant ’s counsel submitted a further application to expedite the proceedings . On DATE the applicant ’s counsel submitted a fresh application to expedite the proceedings to the President of ORG , stressing that the prosecution was about to become time - barred .

On DATE ORG discontinued the proceedings against PERSON on the ground that the prosecution for the offence with which he was charged had become time - barred on DATE . A subsequent appeal by the applicant was dismissed on DATE by ORG .

On DATE the Velika Gorica State Attorney ’s Office declared the applicant ’s criminal complaint of DATE inadmissible in respect of GPE , GPE , GPE and GPE as , under the relevant domestic law , a prosecution for bodily harm had to be brought privately by the victim . As to the alleged threat , PERSON , in a statement to ORG , denied telling the applicant that any such threat had been made . The applicant was informed of his right to take over the prosecution as a subsidiary prosecutor and to lodge a private subsidiary indictment with ORG or to request an investigation through ORG .

On DATE the applicant , represented by counsel , lodged a private subsidiary indictment against CARDINAL suspects ( all of the assailants but PERSON and the CARDINAL unidentified assailant ) with ORG for the offences set out in LAW and CARDINAL of LAW , namely causing bodily harm and causing grievous bodily harm . He also asked for these proceedings to be joined with those already pending before the same court against GPE

On DATE ORG asked ORG to prepare reports on the defendants .

The relevant part of the report on ORG , drawn up on DATE , reads :

“ ... he dropped out of high school and in DATE enrolled in a training course for security guards ... which he plans to complete by DATE .

He has less time for leisure because he is attending classes and assisting in renovation work on the family home .

S. greets others and communicates with them politely .

His hygiene habits are appropriate to his age .

He smokes and drinks alcoholic drinks occasionally .

In a decision of the [ Velika Gorica Municipal ] Court ... of DATE an educative measure was imposed on him in the form of close care and supervision and a special obligation to undergo specialised medical treatment or treatment for drug and other addictions .

S. carried out the above special obligation in GPE for ORG , although there were difficulties in respect of his frequency of ... attendance .

The educative measure consisting of close care and supervision was implemented , although there were difficulties related to regular communication and performance of the programme tasks .

S. lives with his parents and brother PERSON

The parents cared for the children ’s basic needs according to their abilities . However , they lacked the capacity to face up to the developmental difficulties [ of children ] . Becoming aware of their helplessness in bringing up their children and their lack of authority , they became discouraged .

The family live in their own house ... where they moved DATE after living in a flat ...

S. has not adapted well to rural life .

As regards the question of criminal proceedings , we propose that a special obligation be imposed in the form of participation in humanitarian activities . ”

“ ... In DATE , as the driver of a vehicle , [ he had ] a road accident in which he sustained multiple contusions to his head and lungs . He was hospitalised ... He was unconscious for DATE . ... As a consequence ... he had a mild motor skills and speech disorder and frequent headaches . ... His current health is good .

He completed high school ... and obtained a qualification as a waiter ... he then also completed training as a lorry driver and a driver of vehicles for the transport of dangerous materials .

For a period of time he worked as a waiter and in DATE he has worked as a driver .

He did not perform military service . He lives with his parents and is not married .

He cooperates well and communicates adequately .

The records of this centre show that in DATE preliminary proceedings were conducted against the then minor PERSON in ORG in connection with the criminal offence of causing a road accident . The proceedings were terminated [ without a conviction ] since the court applied the principle of appropriateness [ of criminal punishment ] .

He has not committed any further criminal offences .

On the basis of the above we consider , should his criminal responsibility be established , that application of LAW is justified , and we propose that a special obligation be imposed in the form of participation in the activities of humanitarian organisations or activities of ecological or communal interest . ”

The relevant part of the report on PERSON , drawn up on DATE , reads :

“ We have not been able to contact the above - mentioned young adult directly . Instead , we conducted a telephone conversation with NORP , who indicated that he is currently resident in GPE with his mother and studying computer science .

The records of this ORG show that NORP has not committed any further criminal offence nor is there any record of any other asocial behaviour .

The relevant part of the report on GPE , drawn up on DATE , reads :

“ ... he dropped out of a [ vocational ] high school he had attended until the third grade .

In DATE he completed his military service , and after returning to his family decided to continue his education and enrolled in TIME classes in the same [ vocational ] school , in order to obtain a qualification in electronics .

Currently he is about to complete his education , and needs only to pass the final exams . Meanwhile , PERSON has been working part - time and since DATE has been employed in ORG ...

He is unmarried and lives with his parents .

According to the records of this ORG he has not committed any further criminal offences .

He cooperates well and communicates adequately . He comes across as a serious young man .

On the basis of the above , we consider , should his criminal responsibility be established , that application of LAW is justified , and we propose that a special obligation be imposed in the form of participation in the activities of humanitarian organisations or activities of ecological or communal interest . ”

“ ... he completed vocational school on schedule and graduated in DATE .

After graduation he was unemployed since he could not find a job , but he helped his parents [ on their ] agricultural [ land ] .

In DATE he completed his military service .

Currently , he is employed in a construction firm ...

He states that , owning to his work , he does not have much leisure time , which he then spends resting or helping his parents .

According to the information of this ORG he has not committed any further criminal offences in the meantime .

He cooperates well and comes across as a serious young man .

The first hearing , scheduled for DATE , was adjourned since CARDINAL of the CARDINAL defendants appeared . On DATE and CARDINAL May CARDINAL the applicant ’s counsel submitted further applications to expedite the proceedings .

NORP On DATE ORG joined the CARDINAL sets of proceedings . At a hearing on DATE the presiding judge served a copy of the applicant ’s subsidiary private indictment on the defendants and scheduled the next hearing for DATE . On DATE ORG severed the proceedings . On CARDINAL DATE ORG discontinued the proceedings against the remaining defendants , on the ground that the prosecution of the offences with which they were charged had become time - barred on DATE .

On DATE the applicant , represented by legal counsel , brought a civil action against CARDINAL defendants ( the CARDINAL identified perpetrators of the acts of violence against the applicant and the parents of CARDINAL of the assailants who had been minors at the time of the attack ) in ORG ( PERSON ) , seeking damages for the injuries he had sustained .

On DATE the applicant ’s counsel submitted an application to expedite the proceedings . At a hearing on DATE ORG decided to stay the proceedings pending the outcome of the criminal proceedings against the defendants .

In submissions of DATE , the applicant ’s counsel complained that the above decision had not been served on her and asked for it to be set aside since the conduct of the criminal proceedings had been ineffective . On DATE her submissions were returned to her . When she enquired about the case she was told that on DATE it had been transferred to ORG ( PERSON ) . However , when on DATE and DATE she made enquiries about the case at the latter court she received no reply .

On DATE the applicant ’s counsel lodged a complaint about the length of the civil proceedings with ORG . This complaint was upheld on DATE ; ORG awarded the applicant MONEY ( HRK ) in compensation and ordered ORG to adopt a decision within DATE .

At the hearing held on DATE ORG ordered that a medical report be drawn up . On DATE the experts submitted their report of DATE . The relevant part of the report reads :

“ The plaintiff received initial medical assistance in the surgical department of the ‘ PERSON Duh’ ORG in GPE on DATE . He received treatment and was discharged from hospital on DATE , following an improvement [ in his condition ] . [ He was ] advised to rest and take painkillers and to [ return for ] a neurological check - up in DATE , with the results of an EEG examination .

When examined by the experts the plaintiff complained of continuing headaches .

A clinical examination did not reveal pathological substrates .

The medical documentation consists of a discharge letter , without any further check - ups .

OPINION : The medical documentation and the patient ’s condition can be linked to the harmful act in question and the injuries sustained by the plaintiff on that occasion .

Pain of significant intensity lasted DATE , of medium intensity DATE and of minor intensity DATE .

The remaining minor , occasional pains are caused by increased physical effort .

The initial fear was intense and short in duration . Secondary fear ( in respect of the injuries and their consequences ) of significant intensity lasted DATE , of medium intensity DATE and of minor intensity a week .

The medical documentation and examination of the victim did not reveal any lasting consequences from the harmful act .

The plaintiff did not require assistance from other persons . ”

The civil proceedings before ORG are still pending .

The relevant parts of LAW ( PERSON , ORG no . CARDINAL/CARDINAL ) provide :

“ ( CARDINAL ) Criminal proceedings in respect of criminal offences shall be instituted by ORG in the interest of GPE and its citizens .

( CARDINAL ) In exceptional circumstances the law may provide for criminal proceedings in respect of certain criminal offences to be instituted on the basis of a private prosecution or for ORG to institute criminal proceedings following [ a private ] application . ”

“ Anyone who inflicts bodily injury on another or impairs another ’s health shall be fined or sentenced to imprisonment for a term not exceeding DATE . ”

“ Criminal proceedings for the offence of inflicting bodily injury ( LAW ) shall be instituted by means of a private prosecution . ”

“ A public official , or another person acting at the instigation or with the explicit or tacit acquiescence of a public official , who inflicts on another person pain or grave suffering , whether physical or mental , for such purposes as obtaining from him or a third person information or a confession , punishing him for an act he or a third person has committed or is suspected of having committed , or intimidating or coercing him or a third person , or for any reason based on discrimination of any kind , shall be sentenced to imprisonment for a term of DATE . ”

The relevant provisions of LAW ( Zakon o kaznenom postupku , ORG nos . CARDINAL/CARDINAL , DATE , CARDINAL , CARDINAL , CARDINAL and CARDINAL ) provide :

“ ( CARDINAL ) Criminal proceedings shall be instituted and conducted at the request of a qualified prosecutor only . ...

( CARDINAL ) In respect of criminal offences subject to public prosecution the qualified prosecutor shall be the ORG Attorney and in respect of criminal offences to be prosecuted privately the qualified prosecutor shall be a private prosecutor .

( CARDINAL ) Unless otherwise provided by law , the ORG Attorney shall undertake a criminal prosecution where there is a reasonable suspicion that an identified person has committed a criminal offence subject to public prosecution and where there are no legal impediments to the prosecution of that person .

( CARDINAL ) Where the ORG Attorney finds that there are no grounds to institute or conduct criminal proceedings , the injured party as a subsidiary prosecutor may take his place under the conditions prescribed by this LAW . ”

Articles CARDINAL to CARDINAL regulate the rights and duties of private prosecutors and of injured parties acting as subsidiary prosecutors . The Criminal Code distinguishes between these CARDINAL roles . A private prosecutor ( privatni tužitelj ) is an injured party who brings a private prosecution in respect of criminal offences for which such prosecution is expressly prescribed by LAW ( these are offences of a lesser degree ) . The injured party as a subsidiary prosecutor ( oštećeni kao tužitelj ) takes over criminal proceedings in respect of criminal offences subject to public prosecution where the relevant prosecuting authorities , for whatever reason , have decided not to prosecute . Pursuant to LAW , where the prosecution is brought privately , the charge must be lodged with the relevant authority within DATE after the qualified prosecutor has learnt of the offence and the identity of the perpetrator .

“ ( CARDINAL ) A request to prosecute shall be lodged with the competent ORG Attorney ’s ORG and a private prosecution with the competent court .

( CARDINAL ) Where the injured party has lodged a criminal complaint ... he or she shall be considered to have thereby lodged a request to prosecute .

( CARDINAL ) Where the injured party has lodged a criminal complaint or a request to prosecute but the [ competent authorities ] establish that the criminal offence in question should be prosecuted on the basis of a private prosecution , the criminal complaint or the request to prosecute shall be treated as a timely private prosecution if it has been submitted within the time - limit prescribed for [ bringing ] a private prosecution ... ”

Pursuant to LAW , the ORG Attorney is under a duty to inform the injured party within DATE of a decision not to prosecute and of that party ’s right to take over the proceedings , as well as to instruct that party on the steps to be taken .

The relevant provisions of LAW ( Zakon o sudovima za mladež , ORG nos . CARDINAL , CARDINAL/CARDINAL and CARDINAL ) read as follows :

“ A minor is a person who , at the time of the offence , was CARDINAL but not older than DATE . A young adult is a person who , at the time of the offence , was CARDINAL but not older CARDINAL . ”

“ ( CARDINAL ) Sanctions in respect of minors who have committed criminal offences are educative measures , imprisonment of a minor and security measures .

“ ( CARDINAL ) Educative measures are :

( CARDINAL ) special obligations

“ ( CARDINAL ) A court may order a minor to fulfil CARDINAL or more special obligations where it finds that appropriate orders or injunctions are needed to influence the minor and his or her conduct .

( CARDINAL ) A court may impose the following obligations :

to participate in the activities of humanitarian organisations or activities of communal or ecological interest .

( CARDINAL ) In connection with the obligation under paragraph CARDINAL , point CARDINAL of this section a court may impose a maximum of CARDINAL TIME within DATE , so as not to hinder the minor ’s education or regular employment ;

( CARDINAL) A competent ORG shall supervise the enforcement of the obligation ... ”

“ ( CARDINAL ) Criminal proceedings against minors shall be instituted at the request of the ORG Attorney in respect of all criminal offences .

( CARDINAL ) Prosecution [ of minors ] in respect of criminal offences generally subject to private prosecution may be instituted if a person authorised [ to initiate a private prosecution ] has lodged an application for proceedings to be instituted with the competent ORG Attorney ’s ORG within DATE of learning of the offence and the identity of the perpetrator . ”

“ In criminal proceedings against a minor [ the ] victim can not take the role of prosecutor . ”

“ ( CARDINAL ) Where the ORG Attorney has decided under LAW of this LAW that there is no ground to request that criminal proceedings be instituted against a minor ( LAW ) , he or she shall notify the victim of this and state the reasons for his or her decision ...

( CARDINAL ) Within DATE after notification [ under paragraph CARDINAL ] has been served on the victim , he or she may request a competent juvenile council of a higher court to decide whether proceedings should be instituted . The division shall decide after it has obtained the opinion of the ORG Attorney . The division may decide that the proceedings should not be instituted at all or that they should be instituted before a juvenile judge .

( CARDINAL ) Where the division has decided that proceedings should be instituted , the competent ORG Attorney ’s ORG shall take over the proceedings against a minor . ”

“ ( CARDINAL ) In respect of criminal offences which carry a sentence of imprisonment not exceeding DATE or a fine , the ORG Attorney may decide not to request that criminal proceedings be instituted , despite the existence of a reasonable suspicion that a minor has committed such an offence , where the ORG Attorney considers that the proceedings against the minor would not fulfil any purpose in view of the nature of the offence and the circumstances under which it was committed , as well as the previous life and personality of the minor in question . In order to establish these facts , the ORG Attorney may request information from the [ minor ’s ] parents ... other persons and institutions ... or interview the minor in question ...

( CARDINAL ) The ORG Attorney shall inform the competent ORG and the victim about his or her decision under paragraph CARDINAL of this section and shall inform the latter of his or her right to bring any compensatory claim he or she might have in civil proceedings ... ”

“ ( CARDINAL ) The ORG Attorney may make his or her decision not to institute proceedings ( section CARDINAL ) subject to the minor ’s willingness to :

( b ) participate in the activities of humanitarian organisations or activities of communal or ecological interest ( within the limits of section CARDINAL(CARDINAL).CARDINAL ) .

“ ( CARDINAL ) A request that preparatory proceedings be instituted shall be lodged with a competent juvenile judge by the ORG Attorney .

( CARDINAL ) Where the juvenile judge agrees with the request she or he shall issue a decision that preparatory proceedings are to be instituted . ... ”

The relevant part of the Rules on the ORG Attorney ’s Offices ( PERSON o unutarnjem poslovanju u državnim odvjetništvima , ORG no . CARDINAL/CARDINAL ) reads :

“ A victim , a party represented by a ORG Attorney ’s Office ... or an interested person , other than a suspect , an accused or an opposing party in the proceedings , may consult a criminal , civil or other case file held by the ORG Attorney . Such persons may also be allowed to copy the case file in whole or in part .

Permission to consult or copy the case file shall be given by the ORG Attorney or the official in charge of a particular case file . ”


The applicant , Mr PERSON , is a GPE national who was born in DATE and lives in Noordwijk . The respondent Government are represented by their Agent , Mr R.A.A. Böcker , of ORG .

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

On DATE , in accordance with LAW ( Wet Administratiefrechtelijke Handhaving Verkeersvoorschriften – “ LAW ” ) , an administrative fine of MONEY ( NLG ) ( MONEY ) was imposed on the applicant for a traffic offence – namely having failed to give way to a pedestrian who wanted to cross the road at a pedestrian crossing – that had been committed on DATE with a car registered in his name .

On DATE the applicant filed an appeal against the fine with the public prosecutor of GPE LAW . He informed the public prosecutor of the name and address of PERSON , who had been driving his car on DATE . The applicant further explained that , after he had been declared bankrupt on DATE , he had become embroiled with Mr B. to such a degree that reclaiming the fine from him was bound to fail .

On DATE the public prosecutor of The Hague rejected the applicant 's appeal , holding that the applicant , being the registered owner of the car , remained liable under LAW to pay the fine .

On DATE the applicant filed an appeal against this decision with the ORG Judge ( kantonrechter ) under LAW . At a hearing held on DATE before the ORG Judge , the applicant stated that he was the registered owner of the car , but that PERSON was the actual driver who had committed the offence .

On DATE the ORG Judge rejected the applicant 's appeal , holding that the fact that the applicant was not the driver who had committed the traffic offence did not mean that a fine could not be imposed as , in accordance with the LAW , the person in whose name the car was registered remained liable .

A subsequent cassation appeal by the applicant was rejected by ORG ( PERSON ) on DATE . Referring to the findings in its judgment of DATE ( PERSON , no . CARDINAL ) , ORG rejected the applicant 's complaint that LAW was incompatible with LAW .

The Respect for Traffic Regulations ( Administrative Enforcement ) Act provides for the possibility of imposing an administrative fine – at the relevant time up to a maximum of NLG CARDINAL ( MONEY ) – for defined categories of minor offences against , inter alia , the DATE Road Traffic Act ( ORG ) where such an offence has not caused injury to persons or damage to goods ( LAW ) .

Where the offence has been committed by a registered motor vehicle and the identity of the actual driver could not be established at the material time , the fine is imposed on the registered owner of the vehicle ( LAW ) , unless the registered owner demonstrates that his or her vehicle was used by another person against his or her will and that he or she was unable to prevent this use , or that the vehicle was commercially hired out for a period not exceeding DATE , or that at the material time he or she had already sold the vehicle to another person who had provided a written warranty against liability ( LAW ) .

A fine imposed under LAW for an offence under the DATE Road Traffic Act is not recorded in the criminal records ( strafregister ) within the meaning of ORG and Certificates of LAW ( Wet op de Justitiële Documentatie en op de Verklaringen omtrent het GPE ) , as it does not constitute a crime ( misdrijf ) or a minor offence ( overtreding ) for which a prison sentence not being an alternative to a fine has been imposed .

In a judgment given on DATE ORG rejected the argument that LAW should not be applied in a situation where the identity of the actual driver had not been immediately established and where the registered owner of the car had informed the public prosecutor immediately after the imposition of the fine under LAW actual driver . It held in this respect :

“ This conception of LAW [ of the LAW ] can not be accepted as correct . It rests on an unjust understanding [ of this provision ] ... The explanatory memorandum to the bill which gave rise to LAW ] contains in relation to LAW the following ( p. CARDINAL ) :

' A large part of the detection of minor offences against traffic regulations takes place with the aid of technical equipment ... There is no direct confrontation between a police officer and an offender in such cases . The same applies to the majority of parking offences . In such cases , where it can not be immediately established who was the driver of the vehicle with which ... the offence has been committed , the administrative sanction will be imposed on the registration - number holder , pursuant to [ LAW ] . '

On this basis it must be assumed that the expression contained in LAW ] ' if it can not be immediately established who ... is the driver ' relates to those cases in which traffic offences are detected by technical means or otherwise in the absence of a realistic opportunity for the police – taking into account factors such as road and traffic safety and the factual impossibility of having recourse to continuous surveillance – to stop the driver .

The mere circumstance that the registration - number holder , immediately after having received the decision imposing the administrative sanction , has informed the public prosecution department who the driver was , does not therefore exclude the application of LAW of the LAW ] . ”

In a judgment given on DATE ( PERSON , no . CARDINAL ) , ORG concluded that LAW was not incompatible with LAW . This judgment , insofar as relevant , reads :

“ CARDINAL.CARDINAL.CARDINAL . The explanatory memorandum to the bill which gave rise to the [ Act ] states , inter alia , ... ' The bill departs from the idea that the administrative sanction ( which is to be understood as a payment to the ORG of a certain sum of money ... ) is imposed , according to LAW ] , on the person in whose name a [ motor vehicle ] licence ( kenteken ) is registered at the material time , if it has been established that the act [ in violation of the DATE LAW ] has taken place with ... a motor vehicle for which a licence has been issued and where it can not be established immediately who the driver is . This rule , to which an exception is possible ... ( Article CARDINAL) ... will have as its consequence that the above - mentioned time - consuming procedures entailing a hearing and the sending out and processing of response coupons , will become defunct . '

The memorandum of reply to the cited bill states , inter alia , ... : ' The question whether or how the registered owner wants to reclaim the amount due from the “ minor ” offender is governed by the rules of civil law . ' and ' Our conclusion is that there is a possibility of limiting the strict liability rule for the registered owner , but we consider such a limitation in respect of minor traffic offences , to which this bill relates , neither necessary nor desirable . The person concerned has , after all , other ways of reclaiming the amount of the fine from the user of the car . '

DATE . During the oral debate on the bill in ORG , the Minister of ORG stated , inter alia , ... : ' In an administrative - law system , I consider it more correct to leave it to the registered owner himself to take the necessary action to collect the sum he has lost as a result of the commission of the minor offence . He ought not to be permitted to leave that risk to society . '

CARDINAL In view of the considerations under CARDINAL.CARDINAL , LAW ] is thus to be understood as meaning that , when imposing an administrative sanction on the basis of this provision on a registered owner [ of a motor vehicle ] , the latter is not reproached for his conduct ... [ in violation of the DATE LAW ] ... but is merely made liable to pay – for the driver who is guilty of the conduct at issue – the amount of the administrative sanction imposed , and subsequently to reclaim , if so desired , the sum from the [ actual driver ] . Should the registered owner fail to take the appropriate measures , he runs the risk of his claim being unsuccessful .

Further taking into account , on the one hand :

a. the extent of motorised traffic , often moving with great speed , and , as a result , the particular frequency of violations of traffic regulations ;

b. the limited possibilities for stopping traffic offenders and investigating traffic offences ;

c. the undesirability of leaving traffic offences unpunished as well as the interest of society in being able to take action against traffic offences ;

and , on the other hand :

d. the circumstance that it may be assumed that in the vast majority of cases – certainly as regards the “ private ” part of road traffic – the driver of the motor vehicle is also the registered owner ;

e. the possibilities given by ORG CARDINAL and CARDINAL of the [ Act ] to the registered owner to oppose the imposition of the administrative sanction ;

f. the possibilities under civil law for the registered owner to reclaim , where he can not oppose the administrative sanction under LAW ] , the sum from the driver ; and finally

g. the fact that the imposition of an administrative sanction only concerns a limited financial sanction ,

the application of LAW ] , understood as set out in CARDINAL and CARDINAL , is not incompatible with the second paragraph of LAW . ”

In a judgment delivered on DATE , ORG held that , in cases concerning a fine imposed under LAW , courts may as a rule assume that there was no realistic opportunity for the police to stop the driver for the purposes of establishing his or her identity . However , if on this point a defence argument is put forward that there was such an opportunity at the material time , the court should give an explicit decision on that argument ( PERSON ) .

In a ruling given on DATE , ORG held that LAW was to be understood to mean that , if there had been a realistic opportunity of stopping the driver of the vehicle concerned , this provision should not be applied and that the sanction should be imposed on the driver . As , in that case , the case file contained no information from the reporting officer on the question whether there had been an opportunity to stop the driver , ORG adjourned the proceedings and ordered the prosecution to submit that information within DATE ( Verkeersrecht CARDINAL/CARDINAL ) .


Anatoly Kovler;Dean Spielmann;Elisabeth Steiner;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens

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

The local police organised an undercover drug purchase operation targeting the applicant , who was suspected of involvement in drug dealing .

On DATE a plain clothes police officer came to the applicant ’s flat and asked if he could purchase opium . The applicant allegedly agreed and asked for MONEY ( RUB ) for a sachet of opium . The police officer presented the applicant with RUB CARDINAL in marked bills , took the sachet and went down to a lower landing in the building where he handed the sachet with the opium to the other police officers in the presence of CARDINAL attesting witnesses PERSON , PERSON , and Ya . The police officers and the said witnesses went to the applicant ’s flat . The police conducted a search and found the marked bills and more opium . The applicant was arrested and detained pending investigation and trial .

On DATE the investigator dismissed the applicant ’s lawyer request for a dactylographic expert examination of the banknotes found at the applicant ’s flat . In particular , the investigator indicated as follows :

“ The fact that [ the applicant ] was guilty of selling QUANTITY of opium to L. has been fully and objectively proven by the [ evidence collected ] . ”

During the trial the applicant maintained his innocence , alleging that the police had set him up . According to him , on DATE an acquaintance , PERSON , came to his flat to see his wife . As his wife was not home , PERSON left . The applicant was about to close the door after her when several policemen burst into the flat . CARDINAL of them handcuffed him . Another CARDINAL put CARDINAL - rouble bills on the cupboard . When the police checked them , they turned out to be marked . Then another policeman “ found ” opium in the breadbin . The opium was shown to PERSON , PERSON and GPE . , the QUANTITY witnesses who had come with the police .

The court granted the prosecutor ’s request to read out the records of the testimonies given by PERSON , PERSON and Ya in the course of the investigation . The court overruled the applicant ’s objection , noting that those persons did not live at the addresses they had indicated and that their current whereabouts were unknown to the authorities .

On DATE the ORG of GPE found the applicant guilty of drug dealing and sentenced him to DATE imprisonment .

The court based its findings on the following evidence : testimonies given in court by CARDINAL policemen who had been involved in the undercover drug purchase , the applicant ’s arrest and the search of his flat ; records of the testimonies given by PERSON , PERSON and GPE . , who had been questioned in course of the criminal investigation and confirmed the policemen ’s account of the events of QUANTITY DATE ; records concerning the organisation of the undercover operation by the police , including the marking of the money bills , photocopies of the bills , and the report on the search of the applicant ’s flat ; and reports on forensic examination of the money bills , opium , and wipe samples from the applicant ’s hands .

The court also heard evidence from PERSON , who confirmed the applicant ’s version of the events . The court , however , found her testimony unreliable , having regard to the fact that she was a friend of the applicant ’s wife .

The applicant appealed . He complained , inter alia , that the money bills had not been subject to fingerprint examination and that he had not had the opportunity to confront witnesses PERSON , PERSON and Ya .

On DATE the Rostov ORG upheld the applicant ’s conviction on appeal . As regards the fingerprint examination requested by the applicant , the court noted that it could not be performed because the bills had already been subjected to a series of other expert examinations that would render the results unreliable . As for the trial court ’s failure to obtain the attendance of CARDINAL witnesses , the court noted that the witnesses could not be found at the addresses they had indicated .

On DATE the Pervomaiskiy District Court of Rostov - on - Don reviewed the applicant ’s conviction to take account of recent amendments to LAW and reduced his sentence to DATE and CARDINAL months’ imprisonment .

On DATE the Presidium of the Rostov ORG reclassified the charges against the applicant and reduced his sentence to DATE and CARDINAL months’ imprisonment .

On DATE the Deputy General Prosecutor of GPE asked ORG of GPE for the supervisory review of the applicant ’s conviction . The prosecutor argued , inter alia , that the trial court had failed to duly obtain the attendance of witnesses PERSON , PERSON , and Ya .

On DATE the Presidium of ORG of the Russian Federation quashed the judgments of DATE and DATE by way of supervisory review and remitted the matter for fresh consideration . As regards the trial court ’s use of the statements made by PERSON , PERSON and PERSON . ORG acknowledged that the trial court ’s failure to obtain the ORG attendance amounted to a violation of the applicant ’s right set out in LAW ) . ORG noted that the authorities’ attempts to find the missing witnesses had not been satisfactory . According to ORG findings , all CARDINAL witnesses had been students at the material time and had been residing in GPE temporarily . They had also provided the police with the addresses of their permanent residence . However , the trial court had kept on serving process on them at their old temporary addresses , and no attempt had been made to locate them at the permanent addresses they had indicated .

On an unspecified date the ORG of GPE opened a new trial . The court requested the bailiffs to obtain the attendance of witnesses PERSON , PERSON and Ya . by serving process on them at their permanent residence .

On DATE a bailiff in the town of FAC certified that witness B. could not be found at the address he had indicated and that his whereabouts were unknown .

On CARDINAL DATE a bailiff in GPE certified that witness Ya . could not be found at his permanent place of residence . According to Ya . ’s family , he had been working abroad since DATE and they did not know when he was coming back .

On DATE the ORG of GPE found the applicant guilty of drug dealing and sentenced him to DATE and CARDINAL months’ imprisonment . The court based its findings , as before , on the testimonies of the police officers and witnesses PERSON , PERSON and GPE . , records concerning the undercover operation , as well as forensic evidence . Witness PERSON testified in court , while witnesses PERSON and Ya . could not attend . The court read out statements obtained from them in the course of the investigation .

Both the applicant and the prosecutor appealed . The applicant maintained his innocence , claiming that the trial court had based its findings on contradictory evidence ; that the investigator had failed to inform him of the decisions to commission forensic expert reports ; that the trial court had failed to promptly examine PERSON , who had later died and been unable to testify on his behalf .

On DATE ORG upheld the applicant ’s conviction on appeal dismissing the applicant ’s arguments as unsubstantiated .


Angelika Nußberger;Dean Spielmann;Elisabet Fura;Ganna Yudkivska;Karel Jungwiert;Mark Villiger

The applicants , Mr PERSON , Mr PERSON , Mr PERSON , Mr PERSON , Mr PERSON , Mr PERSON , Mr PERSON , Mr PERSON , Mr PERSON , and Mr PERSON , whose birthdates are indicated in the annex , are NORP nationals . They were represented before ORG by ORG , a law firm practising in PERSON . ORG ( “ the Government ” ) were represented by their Agent , PERSON , ORG Attorney .

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

The applicants served , or are currently serving , sentences in the closed section of Dob Prison . This prison , which is the largest in GPE , mainly accommodates adult male prisoners who have been sentenced to a term of imprisonment of DATE . It has an official capacity of CARDINAL inmates , but held CARDINAL and CARDINAL prisoners in DATE and DATE respectively . The closed section of the prison consists of CARDINAL independent buildings ( FAC to CARDINAL ) . Block CARDINAL contains a reception area for new prisoners , hospital cells and cells subject to a stricter regime . ORG , CARDINAL and CARDINAL contain large and small cells and are very similar in terms of their facilities and regime .

A typical large cell measures slightly QUANTITY and contains a bed , a wardrobe and a chair for each of the inmates , as well as a table and radiators . After obtaining prior approval , any inmate may also bring in a television , a cooker or other electronic devices , including a computer . The cells also have shades on the windows and a ceiling fan . It transpires from the prison plan that CARDINAL wing typically contains CARDINAL large cells . The cells share a hallway measuring QUANTITY and a TV room measuring QUANTITY . A lavatory , measuring QUANTITY , is attached to each cell . It has a window measuring CARDINAL x QUANTITY . The lavatory contains CARDINAL washbasins , a QUANTITY washbasin , a urinal and a shower with a partition , as well as a toilet , which is screened off in a separated area , the door to which can be locked . A typical large cell has CARDINAL windows measuring CARDINAL x CARDINAL centimetres each . The TV room and hallway have the same number and size of windows . Inmates are free to open and close the windows . Smoking is prohibited in the cell but not in the hallway , which contains a smoke extraction machine .

The applicant was held in Dob Prison DATE and DATE . He was held in FAC of the prison , in cell no . CARDINAL , which measured QUANTITY and accommodated CARDINAL prisoners . The personal space available to him was therefore QUANTITY .

Other aspects of the conditions in the cell , lavatory and common areas were almost identical to those described above with regard to a typical large cell .

The applicant has been held in LAW since DATE . His term of imprisonment ends on DATE . Until DATE , the applicant was held in cell no CARDINAL , which measured QUANTITY and held CARDINAL inmates ( QUANTITY of personal space available to each inmate ) . Subsequently , he was transferred to cell no . CARDINAL , which measures QUANTITY and has accommodated CARDINAL inmates ( QUANTITY of personal space available to each inmate ) .

Other aspects of the conditions in the cells , lavatories and common areas are almost identical to those described above with regard to a typical large cell .

The applicant has been held in LAW since DATE . His term of imprisonment ends on DATE . He has been held in cell no . CARDINAL , which measures QUANTITY and has accommodated CARDINAL inmates ( QUANTITY of personal space available to each inmate ) .

Other aspects of the conditions in the cell , lavatory and common areas are almost identical to those described above with regard to a typical large cell .

The applicant has been held in Dob Prison since DATE . His term of imprisonment ends on DATE . He has been held in Block CARDINAL , in cell no . CARDINAL , which measures QUANTITY and has accommodated CARDINAL inmates ( QUANTITY of personal space available to each inmate ) . However , during the period DATE and DATE the applicant was placed under a stricter regime in ORG in cell no . DATE , which measured QUANTITY and held CARDINAL inmates ( QUANTITY of personal space available to each inmate ) .

As regards cell no . CARDINAL in Block CARDINAL , other aspects of the conditions in the cell , lavatory and common areas are almost identical to those described with regard to a typical large cell . As regards cell no . CARDINAL in FAC , it had CARDINAL windows measuring CARDINAL x QUANTITY each and access to a hallway of QUANTITY . A lavatory , measuring QUANTITY , was attached to the cell . It had a window of the same size as that of the cell and contained CARDINAL wash basins and a shower with a partition , as well as a toilet in a separate closed area . As with all cells in FAC , the inmates could upon prior approval bring in a television , a cooker or other electronic devices , including a computer .

The applicant was held in LAW DATE and DATE . He was held in cell no . CARDINAL , which measured QUANTITY and held CARDINAL inmates ( QUANTITY of personal space available to each inmate ) .

Other aspects of the conditions in the cell , lavatory and common areas were almost identical to those described with regard to a typical large cell .

The applicant was held in LAW in the period DATE and DATE . Until DATE , he was held in cell no . CARDINAL , which measured QUANTITY and held CARDINAL inmates ( QUANTITY of personal space available to each inmate ) . Subsequently , he was transferred to cell no . CARDINAL , which measured QUANTITY and held CARDINAL inmates ( QUANTITY of personal space available to each inmate ) .

As regards cell no . CARDINAL , other aspects of the conditions in the cell , lavatory and common areas were almost identical to those described with regard to a typical large cell . Cell no . CARDINAL differed in that the inmates shared a lavatory , measuring QUANTITY , with inmates from CARDINAL smaller cells situated in the same wing , which also contained a common area of QUANTITY to which all CARDINAL cells had access . The cell had CARDINAL window measuring CARDINAL x QUANTITY . There was no TV room available to inmates held in cell no . CARDINAL .

The applicant was held in LAW DATE and DATE . Until DATE he was held in cell no . CARDINAL , which measured QUANTITY and held CARDINAL inmates ( QUANTITY of personal space available to each inmate ) . Subsequently , he was transferred to cell no . CARDINAL , which was designated a special drug - free cell and which measured QUANTITY and accommodated CARDINAL inmates ( QUANTITY of personal space for each inmate ) .

As regards cell no . CARDINAL , other aspects of the conditions in the cell , lavatory and common areas were almost identical to those described with regard to a typical large cell . Cell no . CARDINAL differed in that the inmates shared the lavatory with inmates from CARDINAL smaller cells situated in the same wing , which also contained a common area of QUANTITY to which all CARDINAL cells had access . The cell had CARDINAL window measuring CARDINAL x CARDINAL centimetres . There was no TV room available to inmates held in cell CARDINAL .

The applicant was held in LAW in the period between CARDINAL DATE and DATE . Until DATE he was held in cell no . CARDINAL , which measured QUANTITY and held CARDINAL inmates ( QUANTITY of personal space for each inmate ) . Subsequently , the applicant was transferred to cell no . CARDINAL , which was designated a special drug - free cell and which measured QUANTITY and accommodated CARDINAL inmates ( QUANTITY of personal space for each inmate ) .

Other aspects of the conditions in the cells , lavatories and common areas were almost identical as those described with regard to a typical large cell .

The applicant has been held in LAW since DATE . His term of imprisonment ends on DATE . Until DATE he was held in cell no . CARDINAL , which measured QUANTITY and held CARDINAL inmates ( QUANTITY of personal space for each inmate ) . Subsequently , the applicant was transferred to cell no . CARDINAL , which measures QUANTITY and has accommodated CARDINAL inmates ( QUANTITY of personal space available to each inmate ) .

As regards cell no . CARDINAL , other aspects of the conditions in the cells , lavatories and common areas were almost identical to those described with regard to a typical large cell . As regards cell no . CARDINAL , it is situated in the non - smoking wing , in which smoking is also prohibited in the hallway . It has CARDINAL windows measuring QUANTITY each , access to a hallway of QUANTITY , a lavatory measuring QUANTITY and containing a toilet in an area separated by a door , CARDINAL washbasins and a shower with a partition . The lavatory also has a window measuring CARDINAL x QUANTITY .

The applicant has been held in Dob Prison since DATE . His term of imprisonment ends on DATE . Until DATE he was held in Block CARDINAL in cell no . CARDINAL , which measured QUANTITY and accommodated CARDINAL inmates ( QUANTITY of personal space for each inmate ) . In the period DATE and DATE , he was held in FAC in cell no . CARDINAL , where he was undergoing detoxification as part of a programme of treatment to which he had agreed . The cell , in which he was detained by himself , measured QUANTITY . Subsequently , the applicant was transferred to cell no . CARDINAL in Block CARDINAL , which measures QUANTITY and has accommodated CARDINAL inmates ( QUANTITY of personal space for each inmate ) .

As regards cells CARDINAL . CARDINAL and DATE , other aspects of the conditions in the cells , lavatories and common areas were almost identical to those described with regard to a typical large cell . As regards cell no . CARDINAL in FAC , it had CARDINAL window measuring QUANTITY and contained a bed , wardrobe , table and a chair , as well as a toilet and a basin . The applicant had access to a shower room measuring QUANTITY , which he shared with CARDINAL inmates held in other single - occupancy cells .

According to ORG , detainees are woken at TIME and lights out is at TIME However , according to the Government , cells are only locked at TIME , remaining so until TIME in all blocks with the exception of FAC , where cells are locked all the time . Moreover , the cells in FAC , DATE , and CARDINAL remain open longer during DATE in order to allow inmates to continue watching TV late in the evening . When the cells are unlocked , inmates can freely move around all areas to which they have access , namely the hallway , TV room , lavatory and other cells in the same wing .

The inmates in FAC , DATE , and CARDINAL may spend TIME per day during DATE and TIME per day during DATE in the outdoor yard , which , prior to DATE , measured QUANTITY . Afterwards , due to construction work on new prison facilities , the outdoor area available to inmates has been reduced to QUANTITY . However , the prisoners have been , since DATE , using the yard in shifts . The yard includes , inter alia , football and basketball courts , benches , shower facilities with warm water and a small roof measuring QUANTITY .

In ORG the cells are locked throughout DATE . The inmates are allowed to leave their cells for TIME a day for outdoor exercise and TIME a week for indoor exercise . The outdoor yard measures QUANTITY and is divided into CARDINAL areas , each of which may be used by CARDINAL inmates simultaneously . QUANTITY of the yard is covered by a roof . The yard includes a small basketball court , benches and tables .

Each block of the prison also has a gym , measuring QUANTITY . In Block CARDINAL every prisoner may , in principle , use the gym for TIME a week . In other blocks prisoners may use the gym DATE upon their request .

The prison provides courses for , inter alia , primary education and secondary education , such as food preparation and catering classes . Prisoners also have the opportunity to work at ORG ( agricultural activities and metal work ) or within the prison . If unfit for work , prisoners may attend work therapy sessions . In DATE and DATE about CARDINAL prisoners worked in the aforementioned institute and CARDINAL worked within the prison . TIME and QUANTITY prisoners , respectively , participated in work therapy .

According to the information submitted by the Government , the applicants Mr PERSON and PERSON worked at ORG for TIME per day since DATE and CARDINAL DATE respectively . Mr PERSON attended food preparation and catering courses since DATE . Mr PERSON worked for the aforementioned institute for TIME per day since DATE and had taken yoga classes in the prison . PERSON took part in leisure activities ( playing the accordion ) every day . Mr PERSON attended primary education classes in the prison for TIME per day since DATE . Mr PERSON worked in the prison bakery for TIME per day in the period DATE and DATE . Mr Šegota participated in leisure activities ( clay modelling ) in the period DATE and DATE once a week for TIME . Since DATE , he has worked for TIME per day at ORG . PERSON has attended work therapy sessions for TIME DATE .

Prisoners who work or who attend work therapy also earn personal leave , which they are able to spend in special apartments in the prison which include a kitchen and a television . During their personal leave , they are subject to a more lenient regime as regards waking TIME and have broader access to leisure activities .

Inmates in all blocks , except ORG , eat their meals in the prison canteen .

An infirmary operates in the prison and is subject to the general regime of the national health - care system . It operates DATE a week . A dental surgery operates DATE a week . A psychiatric clinic operates DATE a week . During the relevant time , there had been no waiting period for an appointment at the infirmary or the psychiatric clinic , but there had been , except for urgent cases , a waiting period of DATE for an appointment with the dentist .

All prisoners undergo a medical examination upon their arrival . On the basis of this examination , prisoners may be referred to a hospital to undergo a test to ascertain whether they have been infected with hepatitis B and C and/or HIV .

The prison also provides for psychological assistance . Consultations are carried out during DATE upon the arrival of a new prisoner and later depending on need . The waiting period for a consultation is DATE , except for urgent cases . Drug users are offered medical ( including methadone substitution ) treatment and therapeutic help in accordance with a specialised drug treatment programme . Prisoners who successfully undergo methadone substitution treatment are able to undergo detoxification , which normally takes DATE . Further rehabilitation of previous drug users is provided in the drug - free sections of the prison , in which only those prisoners who are no longer dependant on drugs and who are no longer undergoing opiate replacement therapy may be allocated .

Prisoners are entitled to receive visits from their family members lasting TIME at least twice a week . They are entitled to make telephone calls , lasting TIME , twice a week . Until DATE , when new telephone booths were installed , CARDINAL telephone was available for use by all the prisoners from CARDINAL block ( namely , up to CARDINAL prisoners ) . However , after that date almost every wing of the CARDINAL blocks has had CARDINAL telephone booth , which is only used by the prisoners held in that wing ( up to CARDINAL prisoners ) .

For relevant domestic law and practice see paragraphs CARDINAL and CARDINAL - CARDINAL of ORG and Others v. GPE , nos . CARDINAL/CARDINAL , CARDINAL/CARDINAL and CARDINAL , CARDINAL DATE , and paragraphs CARDINAL of ORG and PERSON GPE , nos . CARDINAL/CARDINAL and CARDINAL , DATE . In addition , the judgment of ORG delivered on DATE is relevant to the present case . In that judgment , the aforementioned court rejected a claim under LAW concerning damage allegedly sustained due to inadequate living conditions in Dob Prison . The claim was lodged by a prisoner who was held in FAC in a cell of QUANTITY together with CARDINAL inmates . The court , which also heard a number of witnesses from the prison , found as established that the claimant , apart from his cell and the lavatories , also had access to the TV room and hallway during DATE , TIME It also found that chairs and tables were situated in the hallway and that CARDINAL of the prison population was working TIME a day , which reduced the number of those who stayed in the cells during that time . The court acknowledged that the situation as regards overcrowding ( number of inmates held in the cells ) was in breach of the domestic regulation providing that CARDINAL prisoners should be held in one cell , and found that the ORG , by virtue of paragraph CARDINAL of section CARDINAL of LAW , would be responsible to prisoners for any damage sustained on that account . However , the court , referring to , inter alia , PERSON v. GPE , no . CARDINAL , DATE , concluded that the situation , though difficult , was not such as to violate the claimant ’s personal rights . No legally recognized damage had therefore been sustained by the claimant . The court also assessed the claimant ’s allegations concerning sanitary conditions , access to the telephone , nutrition and cohabitation with persons affected by transmissible diseases . These aspects of the prison ’s conditions were found not to be in breach of the law .

ORG upheld the above judgment on DATE . It found that the claimant ’s claim contained allegations of torture and breach of one ’s right to dignity . It endorsed the lower court ’s legal qualification and factual findings . ORG also referred to the ORG ’s report of DATE , which , in its opinion , did not point to serious violations . Acknowledging that the situation was not perfect and could cause discomfort to the claimant , ORG concluded that , in the aggregate , the conditions did not amount to undignified treatment or torture .

The relevant extracts from the general reports by ORG for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment ( “ the ORG ” ) are set out in Mandić and PERSON , cited above , LAW DATE .

The ORG visited PERSON in DATE . In DATE the number of prisoners held in FAC was significantly lower than it currently is . CARDINAL prisoners were held in the closed section of FAC ( see document ORG ( CARDINAL ) CARDINAL ) . After the visit in DATE , the following recommendations were made to the NORP authorities ( ORG ( DATE ) CARDINAL ) :

“ i. Dob Prison

NORP ... The ORG recommends that efforts be made to reduce the occupancy rate of the CARDINAL ORG dormitories , having regard to the new minimum standards for prison accommodation . Further , the ORG wishes to reiterate that smaller accommodation units for prisoner[s ] are far preferable to large units such as the CARDINAL ORG dormitories seen in FAC .

In the chapter concerning the living conditions in NORP prisons , Annual Reports by ORG Sentences include information on prison overcrowding . The rate of overcrowding is calculated on the basis of the domestic statutory requirement for the imprisonment of sentenced individuals , which is QUANTITY for a single - occupancy cell and QUANTITY per person in a shared cell . According to the DATE and DATE reports , nationwide prison occupancy exceeded the official capacity by CARDINAL and PERCENT respectively . Almost all closed prison facilities accommodating male prisoners were overcrowded . PERSON , with an official capacity of CARDINAL prisoners , held on average CARDINAL and CARDINAL prisoners in DATE and DATE respectively . This meant that the level of overcrowding was CARDINAL and PERCENT respectively ( DATE Report , pp . CARDINAL and CARDINAL ; DATE Report , pp . CARDINAL and CARDINAL ) . According to ORG , the level of overcrowding in DATE and DATE was CARDINAL and CARDINAL percent respectively ( p. CARDINAL ) . The DATE Report also noted ( p. CARDINAL ) :

“ ... Poor living conditions are coupled with overcrowding , which is most present in the large prisons in GPE : Dob , GPE and GPE prisons . The urgency of improving living conditions has been stressed by ORG , the ORG and other institutions .

... It is understandable that such living conditions adversely affect ORG hygiene and privacy . Poor living conditions sometimes also obstruct the exercise of ORG rights ( work , exercise and recreation , [ attending ] religious services ) . In some establishments , prisoners on remand live in worse conditions than sentenced prisoners . The outdated and inadequate furniture in living rooms and other areas presents an additional problem ... ”

On DATE the Ombudsman for Human Rights conducted a visit to Dob Prison under LAW to LAW and other Cruel , Inhuman or Degrading Treatment or Punishment and issued a report , which , as far as relevant , reads as follows :

“ ... the official capacity is still CARDINAL prisoners , including CARDINAL prisoners in the closed section , CARDINAL prisoners in the semi - open section and CARDINAL prisoners in the open section . At the time of our visit , the establishment held CARDINAL prisoners , including CARDINAL in the closed section , which is CARDINAL beyond the official capacity . The prison administration has stressed that it has previously been faced with an even higher occupancy rate . During a certain period in DATE , the prison held CARDINAL prisoners ...

We found that since our last visit the overcrowding has only intensified . This raises concerns . The prison administration has agreed with this finding and stressed that it is of particular concern that the overcrowding can not be reduced by placing prisoners in other establishments , as the number of prisoners is rising everywhere . On the other hand , we welcome the fact that preparatory work on the renovation and expansion of the prison has finally started . The capacity of the prison should be increased to CARDINAL beds and the inmates should be accommodated in single or CARDINAL - bed cells . Large multi - occupancy cells should be abandoned . The office [ of ORG ] expects and hopes that the progress of the renovation of the prison will lead to an improvement in the living conditions therein .

We have again stressed that in most cases the furniture in the rooms was outdated and urgent repairs and replacements were therefore needed

The closed section had sufficient outside areas at the time of the visit ...

According to the prison administration , illegal drugs present a serious problem . CARDINAL of the prisoners are addicted to drugs or alcohol ... The prison administration further explained that the operation of the drug - free section , [ CARDINAL of ] which was located in every block ( except ORG ) , was also restricted due to the fact that there was only one therapist responsible for the programme ... ”

In its DATE report , ORG noted :

“ In the closed section of Dob Prison there are still CARDINAL single cells and only a few cells with CARDINAL beds available . Large multi - occupancy cells are [ the norm ] , in particular those measuring QUANTITY and accommodating CARDINAL prisoners . Each inmate has QUANTITY of personal space , which falls short of the standard of QUANTITY .... It is true that this standard was intended for new facilities or renovations , where possible . However , DATE have already passed since the adoption of the Regulation on the Execution of Prison Sentences [ providing the aforementioned standard ] , there should be a commitment that this standard is also complied with in the largest prison in the country . Likewise , one can not ignore section CARDINAL of ORG , which states that inmates should in principle be accommodated in a single cell , and that shared cells should have CARDINAL beds at most . The prison conditions in which the prisoners live are therefore unacceptable and in breach of the law .

The shared cell with CARDINAL beds has CARDINAL lavatory .... During the TIME rush , this ( the facilities in the lavatory ) is insufficient for the number of inmates whom it is intended to serve . The number of inmates simultaneously using the lavatory is also restricted by its size . [ The ombudsman ’s office ] was therefore not surprised to hear complaints that inmates had to wait TIME to use the shower and TIME to use the toilet , which we believe is also inhumane . ”