CASE OF ABDOLKHANİ AND KARİMNİA v. TURKEY

Violation of Art. 3 (in case of deportation to Iran or Irak);Violation of Art. 13+3;Violation of Art. 5-1;Violation of Art. 5-2;Violation of Art. 5-4;Non-pecuniary damage - award;Pecuniary damage - claim dismissed

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

The applicants were born in DATE and DATE respectively and are currently being held in ORG and ORG in GPE .

The applicants joined ORG in GPE ( “ the ORG ” , also known as the “ FAC ” ) in DATE and DATE respectively . They arrived in GPE on unspecified dates . They lived in PERSON , where ORG members were accommodated in GPE , until they left the organisation in DATE and DATE respectively , because they disagreed with the ORG ’s goals and methods . After leaving the ORG , they went to ORG ( “ TIPF ” ) , a camp created by GPE forces in GPE . This facility was subsequently named ORG ( “ ARC ” ) .

On DATE and DATE , after being interviewed , the applicants were recognised as refugees by ORG in GPE during their stay in GPE . As regards the first applicant , the ORG found that he had a well - founded fear of persecution in GPE on grounds of his political opinion , his character and the firm conviction with which he held his political opinions . In particular , having regard to the applicant ’s link to the ORG for DATE , to the treatment of members of the FAC in GPE and to his explicit opinions on the need for a secular ORG in his country of origin , the ORG considered that the applicant had established to a reasonable degree that his situation would be followed up by the security agencies which would make his stay in GPE intolerable if he returned there .

As regards the second applicant , the ORG found that he had a well - founded fear of violations by NORP authorities of , inter alia , his right to life through an arbitrary or unlawful deprivation of life , freedom from torture , ill - treatment , arbitrary arrest or detention , as well as his right to a fair and public trial . In particular , having regard to the applicant ’s membership of the ORG and to his political opinions and the treatment of actual and suspected members of the ORG and its sympathisers in GPE , the ORG considered that the evidentiary threshold of “ reasonable likelihood ” that the applicant would face treatment such as arbitrary detention and torture was satisfied .

In DATE the ORG was closed down and the applicants , along with other former ORG members , were transferred to northern GPE .

On an unspecified date the applicants arrived in GPE . They were arrested by security forces and , as they had entered NORP territory illegally , were deported back to GPE on DATE .

They immediately re - entered GPE .

On DATE they were arrested by road checkpoint gendarmerie officers from the GPE gendarme station , in GPE , as their passports were found to be false .

On DATE the applicants made statements to the gendarmerie officers . The applicants contended that they would be executed if returned to GPE , due to their opposition to ORG policies , and that their lives had also been at risk in GPE . They stated that they wished to go to GPE in order to request asylum and leave for GPE .

The applicants were subsequently placed in the ORG department at the police headquarters in the LOC district of GPE .

On DATE the NORP public prosecutor filed a bill of indictment with ORG , charging the applicants with illegal entry into GPE .

On DATE the applicants were brought before ORG . Noting that the applicants would be deported , the judge communicated the bill of indictment to the applicants and took their statements regarding the charge against them . The applicants submitted that they had left GPE as they faced a risk of death in that country and that they had come to GPE illegally , with the assistance of a smuggler , in order to go to GPE where they had family . The GPE court convicted the applicants as charged but decided to defer the imposition of a sentence for DATE in accordance with LAW . The applicants were subsequently taken back to the LOC police headquarters .

According to the applicants’ submissions , on DATE the national authorities once again attempted to deport them , this time to GPE . The applicants prevented their deportation by speaking LANGUAGE and pretending not to understand LANGUAGE . Consequently , the NORP authorities refused to admit them to GPE . In their submissions to ORG , the Government made no mention of the purported deportation of the applicants to GPE . Instead , they noted that the applicants would be required to be deported to LOC , where they had come from .

On DATE the director of the GPE branch of ORG , PERSON , went to the LOC police headquarters to visit the applicants at the request of the ORG office . According to PERSON submissions , on DATE of his visit the first applicant had attempted to commit suicide as he had been told by a police officer that he would be deported to GPE . The police had not allowed Mr Şengül to meet the applicants .

On DATE and CARDINAL and DATE the applicants made further statements to the police and contended that they were former members of the ORG . The first applicant noted that he had had LANGUAGE , LANGUAGE and LANGUAGE lessons as well as military training when he was in the organisation . He also stated that , while in the ORG , he had been a photographer and taught LANGUAGE . He said that he had not been involved in any armed activity . The second applicant stated that , apart from the aforementioned languages , he had also learned NORP when he had been a member of the PMOI . He contended that he had lived in the TIPF for two years and had never been involved in any armed activity . Both applicants stated that they had come to GPE in order to apply to the ORG , following advice by ORG officials to do so .

The applicants submitted identical petitions in NORP to the police in GPE , which read as follows :

“ We entered GPE with the assistance of a smuggler from the city of PERSON . We are refugees and used to reside in GPE , GPE . We came to GPE in order to contact the ORG and ask it to process our [ resettlement ] cases . The ORG ’s headquarters in GPE was blown up by terrorists and it no longer has an office there . We request to stay in GPE temporarily so that our cases can be processed . Our friends advised us that the only way to contact the ORG was to come to GPE . We need a lawyer before we communicate [ with you ] further . ”

The applicants signed these petitions . They also wrote down their ORG case numbers , the names of their parents and their dates of birth .

The applicants were held at the LOC police headquarters , in GPE until DATE , when they were transferred to the ORG Foreigners’ Admission and ORG .

On DATE the applicants drafted petitions addressed to the GPE governor ’s office and sought temporary asylum in GPE . According to the information in the case file , the applicants have not yet received any reply to their petitions .

On DATE the second applicant married another NORP asylum seeker held in the GPE Foreigners’ Admission and ORG . The director of the ORG assisted them in obtaining their marriage certificate .

On DATE the second applicant had a power of attorney notarised for PERSON , and subsequently PERSON , lawyers practising in GPE , to represent him in GPE . The notary agreed to notarise the power of attorney on the basis of the aforementioned marriage certificate .

On DATE the second applicant ’s lawyer filed a petition with ORG , challenging the second applicant ’s detention . According to the information in the case file , the second applicant has not yet received any reply to his petition .

On DATE , upon a request from the ORG , the Government of GPE agreed to examine the applicants’ cases for resettlement there . According to the information in the case file , that examination is still pending .

Article CARDINAL of LAW provides , inter alia :

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

If the implementation of an administrative act would result in damage which is difficult or impossible to compensate , and at the same time this act is clearly unlawful , a stay of execution may be decided upon , stating the reasons therefor ... ”

Section CARDINAL of Law no . CARDINAL provides that anyone whose personal rights have been violated as a result of an allegedly unlawful administrative decision or act can bring an action for annulment of that decision or act .

Section CARDINAL(CARDINAL ) of the same PERSON stipulates that an application to the administrative courts does not automatically suspend implementation of the decision or act in question . Under section CARDINAL(CARDINAL ) , the administrative courts can order a stay of execution if the decision or act in question is manifestly unlawful and if its implementation would cause irreversible harm .

Sections CARDINAL and CARDINAL(CARDINAL ) of PERSON no . DATE , in so far as relevant , read as follows :

“ Foreigners who come to the NORP borders without a passport or identity documents or with an invalid passport or identity documents shall not be authorised to enter .

Foreigners who claim that they have lost their passport or identity documents while travelling may be authorised , pending an investigation conducted by ORG , to enter ... and on condition that they can be accommodated at a place designated by the local governor . ... ”

“ Persons who are forbidden to enter GPE are ...

( CARDINAL ) Those who are perceived to have come for the purpose of destroying the security and public order of GPE or of assisting or conspiring with persons who want to destroy the security and public order of GPE . ”

Sections DATE and CARDINAL of Law no . CARDINAL read as follows :

“ Foreigners whose stay in the territory of GPE is considered to be incompatible with public safety and the political or administrative requirements of ORG Interior shall be invited to leave GPE within a fixed time - limit . Those who do not leave GPE after the expiry of the time - limit may be deported . ”

“ Persons who are to be deported but can not leave GPE due to their inability to obtain a passport or for other reasons are obliged to reside at places designated by ORG . ”

Section CARDINAL(CARDINAL ) of PERSON no . PERSON , as amended by PERSON no . CARDINAL of CARDINAL DATE , provides as follows :

“ ORG bodies , police departments , other public institutions and agencies , State economic enterprises , private and public banks , notaries , insurance companies and foundations are under an obligation to assist attorneys in carrying out their duties . These entities are obliged to submit requested information and documents to the lawyers for review , subject to any contrary provisions in the laws establishing these entities . Obtaining copies of such documents is subject to the presentation of a power of attorney . In pending cases , documents may be obtained from the court without waiting until DATE of the hearing . ”

GPE has ratified the DATE Convention relating to ORG thereto . However , it maintains the geographical limitation provided for in LAW by which it assumes the obligation to provide protection only to refugees originating from LOC .

On DATE the Regulation on the procedures and principles related to possible population movements and foreigners arriving in GPE , either as individuals or in groups , wishing to seek asylum either from GPE or requesting a residence permit in order to seek asylum from another country ( “ the DATE LAW ) , came into force by a decision of ORG no . DATE . Under LAW , although formally excluded from the protection of the DATE LAW , non - NORP asylum seekers may apply to ORG for “ temporary asylum seeker status ” pending their resettlement in a third country by the ORG .

DATE Regulation defines a refugee and asylum seeker as follows :

“ Refugee : A foreign national who , as a result of events occurring in LOC and owing to a well - founded fear of being persecuted for reasons of race , religion , nationality , membership of a particular social group or political opinion , is outside the country of his or her nationality and is unable or , owing to such fear , is unwilling to avail himself of the protection of that country , or who , not having a nationality and being outside the country of his or her former habitual residence as a result of such events , is unable or , owing to such fear , is unwilling to return to it ;

Temporary Asylum Seeker : A foreign national who owing to a well - founded fear of being persecuted for reasons of race , religion , nationality , membership of a particular social group or political opinion , is outside the country of his or her nationality and is unable or , owing to such fear , is unwilling to avail himself of the protection of that country , or who , not having a nationality and being outside the country of his or her former habitual residence as a result of such events , is unable or , owing to such fear , is unwilling to return to it . ”

On DATE Articles CARDINAL , CARDINAL , DATE , DATE and DATE of the DATE Regulation were amended by a decision of ORG ( decision no . CARDINAL ) .

Articles DATE , CARDINAL and DATE of the DATE Regulation now provide as follows :

“ Foreign nationals entering GPE legally to seek asylum or to request a residence permit in order to seek asylum in another country shall apply without delay to the governor ’s office of the city where they are present . Those who enter GPE illegally are required to apply without delay to the governor ’s office of the province through which they entered the country .

Those who fail to apply to the authorities within the shortest reasonable time shall state the reasons for failing to do so and shall co - operate with the competent authorities . ”

“ With regard to individual foreigners who either seek asylum from GPE or request a residence permit in order to seek asylum from another country the governors’ offices shall

a ) identify the applicants and take their photographs and fingerprints .

b ) conduct interviews with the applicants in accordance with the DATE LAW relating to ORG . For interviewing and decision making , staff shall be appointed at the governors’ offices which are authorised to conduct interviews and to take decisions .

c ) send the interview documents along with the comments of the interviewer and the decision made on the case of the applicant , in accordance with the authority granted under LAW , to ORG .

d ) pending further instructions from ORG , accommodate the foreigner in a centre or a guest house considered appropriate by ORG , or authorise the foreigner to reside freely in a place which shall be designated by ORG .

e ) take further steps following instructions from ORG . ”

“ Decisions on the applications of individual foreigners , either seeking asylum from GPE or requesting a residence permit in order to seek asylum from another country , shall be adopted by ORG in accordance with the DATE LAW relating to ORG DATE relating to ORG .

When it considers it necessary , ORG may transfer the decision - making authority to the governors’ offices .

The decision taken by a governor ’s office or ORG shall be communicated to the foreigner through the governor ’s office .

Those foreigners whose applications are accepted shall be accommodated in a guesthouse deemed appropriate by ORG or shall freely reside in a place which shall be designated by ORG .

Those whose applications are not accepted may appeal to the relevant governor ’s office within DATE .

For a speedier decision , the period for lodging an appeal may be reduced by ORG , if deemed necessary .

The statement , other information and documents supporting the claim submitted by the applicant appealing the decision shall be sent to ORG by the governor ’s office . Any appeal shall be decided by ORG and the final decision shall be notified to the foreigner .

The situation of those whose appeals are rejected by a final decision shall be assessed within the framework of the general provisions regarding foreigners . Within this framework , those foreigners who are not eligible for a residence permit shall be notified that they must leave GPE within a time - limit determined by the administration . Foreigners who do not leave the country shall be deported from GPE by the governors’ offices upon receipt of instructions from ORG , or ex officio by the governors’ offices where the direct decision - making authority has been transferred to them . ”

On DATE the Minister of the ORG issued a Circular containing a directive regarding the procedures and principles to be applied when implementing LAW Regulation ( “ Circular no . CARDINAL ” ) within the context of the process of GPE ’s accession to ORG . The ORG contains guidelines regarding , inter alia , asylum ORG access to asylum procedures , the manner in which asylum applications and interviews should be processed , the procedure as to the review of decisions refusing temporary asylum , the residence of asylum seekers in GPE and their transfers to other provinces , health assistance to asylum seekers , the education of their children and the relation between ORG and the ORG .

Regarding the issue of access to the asylum and temporary asylum procedure , Circular no . CARDINAL reiterates the content of DATE and CARDINAL of the DATE Regulation . As to residence permits for asylum and temporary asylum seekers , section CARDINAL of the Circular provides that persons who have applied for asylum or temporary asylum in GPE , except for those listed in section CARDINAL , shall ex officio be granted a residence permit for DATE which shall subsequently be extended ex officio for DATE .

Section CARDINAL of Circular no . CARDINAL , in so far as relevant , provides as follows :

“ Applicants shall be informed by the governors’ offices of the decision of ORG regarding their requests . If the decision is positive , the refugee / temporary asylum seeker shall be granted a residence permit upon receipt of the instructions of ORG .

Negative decision at first instance

If the first decision taken by ORG applicant ’s request is negative , the applicant shall be informed that she or he may lodge an objection against the decision within DATE in accordance with LAW .

The objection may be made in written form or at an interview , if the applicant requests CARDINAL .

The residence permit of an applicant who has lodged an objection against the first decision given in his or her regard shall be extended and subsequent action shall be taken upon the instructions of ORG .

The applicant can submit any information or document in support of his or her objection . The applicant may lodge an objection with the assistance of a legal representative or an adviser or directly through his or her representative .

If the applicant has not lodged an appeal , he or she shall be ordered to leave the country within DATE . A check shall be carried out to ensure that he or she has left by DATE .

If the person has not left within the specified period , action shall be taken to deport him or her pursuant to the general provisions regarding foreign nationals .

Final decision

The petition containing the applicant ’s objection or the information and documents concerning the additional interview shall be sent to ORG and action shall be taken upon the latter ’s instructions .

If an applicant is given refugee or asylum seeker status following the examination conducted by ORG , he or she shall be granted a residence permit upon the instructions of ORG .

An applicant whose objection has been rejected can leave the country voluntarily .

Residence permits as a result of subsidiary protection and protection for humanitarian considerations

The cases of applicants whose objections have been rejected by a final decision are assessed within the framework of the general provisions contained in LAW concerning foreigners .

This assessment concerns whether the applicant risks incurring serious harm , in the light of LAW , and whether it is necessary to grant him or her subsidiary protection .

Regard is also had to whether the applicant should be granted a residence permit for humanitarian reasons of health , education , family unity , etc . , or if he or she has applied to the administrative courts .

Those who are not granted a residence permit within the context of subsidiary protection or protection for humanitarian reasons shall be notified of the decisions taken in their respect . They shall further be informed that they must leave the country within DATE , unless another time - limit is set by ORG .

If the foreigner does not leave the country and applies to the administrative court , ORG Interior shall be informed . Action shall be taken upon receipt of instructions from the Ministry ... ”

Section CARDINAL of Circular no . CARDINAL , in so far as relevant , provides as follows :

“ ... In order to prevent abuse of international protection and to identify those who actually need international protection , those who belong to the categories below shall not be granted residence permits ex officio : ...

Persons who claim asylum following their arrest by security forces ; ...

Persons who claim asylum following their arrest by security forces while leaving GPE illegally ;

... If the applicant ’s request is rejected following the first examination by ORG and if the applicant does not lodge an objection , he or she shall be deported .

If the applicant wishes to object to the decision , he or she shall be given DATE in which to do so . The objection and the documents relating to the objection shall be sent to ORG as a matter of urgency . Action shall be taken upon receipt of instructions from the Ministry ... ”

Under section CARDINAL of Circular no . CARDINAL , it is compulsory to provide identity documents for all applicants and asylum seekers / refugees residing in GPE within DATE of receipt of their applications .

On DATE the Government of GPE adopted a National Action Plan for the adoption of ORG in the fields of asylum and immigration . LAW envisages , inter alia , the adoption of a new asylum law .

On DATE the representative of PERSON , an NORP national recognised as a refugee under the ORG ’s mandate and who was held in a ORG Admission and ORG at the relevant time , lodged a case with ORG . He requested that the court annul the decision of the Ministry not to release his client and order a stay of execution of that decision pending the proceedings . On DATE ORG ordered a stay of execution of the decision of ORG and decided that PERSON should be released . On DATE he was released .

In the report entitled “ Information Regarding Iranian Refugees in the Temporary Interview Protection Facility ( ex - TIPF / ARC ) at PERSON , GPE ” , submitted to the Court by the applicants , ORG noted , inter alia , the following :

“ ... CARDINAL . NORP ... The NORP government ’s treatment of known or suspected members of or sympathisers with the ORG has reportedly been extremely severe , with long prison sentences and CARDINAL of executions in DATE that followed the Islamic revolution . Execution of ORG members continue to be reported on a sporadic basis , including extra - judicial killings in foreign countries . As a result many ORG NLA / ORG members , or even supporters or family members , are likely to have a well - founded fear of persecution on political grounds . ...

NORP ex - PMOI refugees are considered at particular risk in GPE . The ORG has been perceived by some in GPE as having been affiliated with the former NORP regime of PERSON given the protection that the regime afforded . Others have alleged that ORG units were involved in the crushing of the DATE uprising by NORP and NORP groups which were supported by the NORP authorities . Groups that were either allied to or perceived to have received preferential treatment from the regime of PERSON are subject to threats and violence , the NORP being on example .

With deepening links between GPE and the current NORP - led government coalition in GPE as well as links between the NORP government and NORP - based militias , there is a growing concern that the safety of the ex - PMOI refugees is increasingly at risk . In a meeting with ORG in GPE in DATE , the NORP authorities stated their intention to expel ORG NLA and former ORG members from GPE within DATE . In DATE ORG was informed that in DATE , threats had been made against the residents of FAC While these credible threats have not been directed towards the refugees at the ARC , but rather at those being maintained at camp PERSON , ORG considers the refugees at the ARC to be in similar danger given their shared past affiliation with the ORG . ...

Given the changes in bilateral relations between governments of GPE and GPE noted above , as well as the perceived affiliation of ex - ORG members with the former regime , local integration in GPE , the country of asylum , is not a feasible durable solution for these refugees . This applies equally to the Northern NORP governorates ( KRG ) . PERSON also holds a hostile view towards former ORG members given the group ’s perceived connections to the former regime and refused to consider further ORG ’s relocation request . ...

ORG currently does not facilitate or promote voluntary repatriation of refugees from GPE to GPE . In ORG ( “ ICRC ” ) facilitated with limited logistic support the voluntary repatriation to GPE of some CARDINAL ORG members from camp PERSON who transited through the ARC . Very little independent information is available as to what happened to these individuals , as neither PERSON nor ORG is able to monitor the situation of returnees . ORG received , however , credible reports that some of the returnees were forced/“invited ” to make public confessions and accusations against the ORG on television after their return . An organisation of victims of the ORG composed of persons presented as former ORG members ( including returnees ) called GPE has been reporting to ORG that returnees did not face any problem upon return to GPE . None of these returnees either from FAC or from the ARC has approached any ORG offices . The NORP authorities continue to designate in the media the ORG members as “ ORG ” ( i.e. the “ NORP ” ) .

Reportedly , at CARDINAL point in time GPE was prepared to accept the return of ORG members from GPE , with the exception of CARDINAL high profile members , if they expressed regrets for their past acts . This promise of amnesty , however , has not been officially reiterated by President PERSON . In DATE , in a letter from ORG to ORG , ORG asked the NORP authorities to confirm this verbally - declared amnesty as well as to provide unhindered and direct access by ORG to returnees . No reply was ever received . ORG has reiterated this request without success to ORG on various occasions in DATE , DATE and most recently on DATE . Despite separation from family members remaining in GPE and DATE of limited freedom of movement in the ARC , the vast majority of former ORG members preferred to remain at the ARC in GPE , supervised by ORG ( “ MNF - I ” ) , than return to GPE . Recently , some have risked travelling to LOC or GPE so as to get out of the ARC and seek asylum elsewhere . Some of those who tried to go to GPE have been forcibly returned to GPE . ...

Since DATE , the GPE military has been facilitating ex - PMOI refugees to depart the ARC . Most of these refugees travelled to LOC , while some attempted to enter GPE with CARDINAL way laissez passez issued by NORP authorities with the assistance of the GPE military . Some of these refugees were also in possession of letters signed by a ORG Colonel , stating that :

“ Mr. or Mrs. ... will be travelling out of the country with a Government of GPE issued PERSON and is authorised to do so . It is his / her intent to obtain a visa at the border and cross into GPE . This action has been approved by ORG and the US Embassy GPE , in conjunction with ORG . ”

ORG does not support the issuance of these documents and is concerned that refugees leaving the ARC based on inaccurate information that they will be accommodated by ORG in northern GPE or that they will be able to acquire visas to and enter GPE . This is not the case . Refugees who leave ARC are at risk of being stranded in northern GPE or subject to detention and deportation from another country , most notably GPE . CARDINAL ex - PMOI refugees have been detained in GPE after leaving the ARC and entering GPE illegally . CARDINAL of them were deported to northern GPE where many were detained in GPE . CARDINAL remain in detention in GPE in precarious circumstances . Some former refugees are reportedly missing and ORG fears that they may have been deported to their country of origin . Another refugee from the ARC who arrived illegally to GPE has been allowed by a court decision to enter the country and to be protected against refoulement . ...

On DATE GPE and GPE signed a memorandum of understanding to enhance security cooperation and joint efforts to officially oppose drug trafficking and terrorism . ORG is concerned that such an agreement could be used to refoule former ARC refugees stranded in detention in GPE or at its borders . ... ”

On DATE the ORG issued the following statement :

“ ORG deplores refugee expulsion by GPE which resulted in CARDINAL deaths

GPE - Four men , including an NORP refugee , drowned after a group of CARDINAL people were forced to cross a fast - flowing river by the NORP police at GPE ’s south - eastern border with GPE , witnesses have told the ORG refugee agency .

The incident took place on DATE at an unpatrolled stretch of the border , near FAC ) official border crossing in GPE in south - eastern GPE . According to eyewitnesses , the NORP authorities had earlier attempted to forcibly deport QUANTITY people of various nationalities to GPE through the official border crossing . The NORP border authorities allowed CARDINAL NORP to enter the country , but refused to admit CARDINAL NORP and NORP nationals . The NORP police then took the QUANTITY , which included CARDINAL NORP refugees recognised by ORG , to a place where a river separates the CARDINAL countries , and forced them to swim across .

According to the witnesses interviewed by ORG , CARDINAL persons , including a refugee from GPE , were swept away by the strong river current and drowned . Their bodies could not be recovered .

ORG is in contact with the surviving refugees through its office in GPE , in northern GPE . They are deeply traumatized by the experience , ORG staff reported .

ORG had sent previous communications to the NORP government requesting that the CARDINAL NORP refugees , who had all been detained after attempting to cross into GPE in an irregular manner , not be deported . Despite ORG ’s requests , the refugees were put in a bus , together with other persons to be deported , and taken on a CARDINAL trip to the NORP border DATE . ORG had expressed in a number of communications sent to the Government of GPE that it did not consider GPE a safe country of asylum for these refugees .

ORG is seeking clarification from the Government of GPE on the circumstances surrounding the forced expulsion of the refugees and the tragic loss of life . ”

In its Country of Origin Information Report on GPE of DATE , ORG noted , inter alia , the following :

“ ... ORG , on DATE , reported that :

‘ PERSON , a member of the opposition ORG outlawed in GPE , was executed on DATE at ORG ’s Gohardasht prison , ORG said DATE , after a trial that did not meet international standards.’

ORG , in a public statement dated DATE , said :

‘ Executions in GPE continue at an alarming rate . ORG recorded CARDINAL executions in DATE , although the true figure is likely to be much higher . So far in DATE , it has recorded CARDINAL executions . Most of the victims were sentenced for crimes such as murder but CARDINAL of those recently executed was a political prisoner , PERSON , a member of ORG ( ORG ) , who was forcibly returned to GPE from GPE in DATE and sentenced to death in DATE after conviction [ for ] involvement in a bomb explosion in GPE in DATE which killed CARDINAL people ( see Urgent Actions AI Index ORG CARDINAL/CARDINAL/CARDINAL , DATE and ORG ) . He was taken from his cell in PERSON prison and executed on DATE , though his execution was officially confirmed by NORP officials only on DATE .

PERSON execution has fuelled fears that other political prisoners may be at risk of imminent execution . According to unconfirmed reports that have been circulating since DATE , a number of political and other prisoners who are under sentence of death have been told by prison officials that they would be executed if GPE should be referred to ORG over the resumption of its nuclear programme ... These [ prisoners ] are said to have included other members of the ORG , which is an illegal organization in GPE . ORG , of which the ORG is a member , was the source of evidence in DATE revealing GPE ’s nuclear programme to the outside world.’

According to ORG of DATE :

‘ ORG in GPE reported that CARDINAL members of the NORP opposition organisation ORG had voluntarily returned to GPE . Their return was organised by PERSON . ORG had no information indicating that these persons had been legally persecuted .

ORG in GPE reported that non - profiled members of ORG had returned to GPE but had no information indicating that these persons had been persecuted or legally persecuted .

The Organisation for defending Victims of Violence ’s international department reported that many members of ORG had returned to GPE without experiencing problems of a penal character .

ORG in ORG confirmed that members of ORG had returned to GPE , mainly from GPE . The source was not aware that they had been subjected to any reprisals . ORG had monitored the return of a number of failed asylum seekers from the GPE . According to the source , none had been persecuted.’

The ORG report for DATE states that : ‘ There were reports that the government held some persons in prison for DATE charged with sympathizing with outlawed groups , such as the terrorist organization , the Mujahedin - e - Khalq ( ORG ) ... The government offered amnesty to rank - and - file members of the NORP terrorist organization , ORG , residing outside the country . Subsequently , the ICRC assisted with voluntarily repatriating CARDINAL ORG affiliates in GPE under ORG - I protective supervision during the year.’ ... ”

In CARDINAL press releases issued on DATE and DATE , ORG reported that a number of political prisoners in GPE , including CARDINAL ORG members , namely PERSON and ORG , had died in custody in suspicious circumstances and that no effective investigation had been conducted into their death .

In DATE and DATE ORG and NORP government spokesman respectively made statements , according to which the NORP government was intending to deport the ORG members in FAC to their country of origin or to a third country , and asked the international community to find places for them other than GPE .

Subsequently , on DATE the Chair of ORG PACE ) issued a press statement and urged the NORP government not to forcibly return to GPE the residents of FAC who would risk persecution there , not to expel these persons to another country that might send them to GPE afterwards , nor to forcibly displace them inside GPE .

On DATE ORG adopted a resolution on the humanitarian situation of PERSON residents which reads , in so far as relevant , as follows :

“ ORG

... PERSON - whereas in DATE GPE forces in GPE disarmed GPE residents and provided them with protection , those residents having been designated " protected persons " under LAW , ...

PERSON - whereas following the conclusion of the GPE / Iraqi Status of Forces Agreement , control of GPE was transferred to the NORP security forces as of DATE ,

PERSON - whereas , according to recent statements reportedly made by ORG , the authorities intend gradually to make the continued presence of the GPE residents " intolerable " , and whereas he reportedly also referred to their expulsion / extradition and/or their forcible displacement inside GPE ,

- Urges the NORP Prime Minister to ensure that no action is taken by the NORP authorities which violates the human rights of the GPE residents and to clarify the NORP government ’s intentions towards them ; calls on the NORP authorities to protect the lives and the physical and moral integrity of the GPE residents and to treat them in accordance with obligations under LAW , in particular by refraining from forcibly displacing , deporting , expelling or repatriating them in violation of the principle of non - refoulement ;

- Respecting the individual wishes of anyone living in GPE as regards his or her future , considers that those living in GPE and other NORP nationals who currently reside in GPE having left GPE for political reasons could be at risk of serious human rights violations if they were to be returned involuntarily to GPE , and insists that no person should be returned , either directly or via a third country , to a situation where he or she would be at risk of torture or other serious human rights abuses ; ... ”

Meanwhile , on DATE ORG decided to exclude the ORG from the list of individuals , groups and entities involved in terrorist acts , in accordance with the judgment of ORG dated DATE in Case T-CARDINAL/CARDINAL .

On DATE ORG on ORG issued a report on its ORG to GPE ( Report of ORG on its Mission to Turkey , Report of DATE , A / HRC/CARDINAL/CARDINAL/Add.CARDINAL ) . Regarding the detention of foreigners awaiting expulsion in GPE , ORG noted the following :

“ ... DATE . Foreigners who are in GPE without the documents necessary to allow them to stay lawfully in the country can be , and are in great numbers , arrested by the police or the ORG . After a brief period in police custody they are taken to a so - called “ guest house ” for foreigners run by ORG , where they are - in spite of the welcoming name of these institutions - to all effect locked up awaiting expulsion . However , no written decision to this effect is issued to them .

DATE the Law on the Residence of ORG , providing that foreigners who have been issued an expulsion decision but can not be immediately expelled , shall reside in a location assigned to them by ORG , does not constitute a sufficient legal basis for this practice . Neither this law , nor any other , provides further details as to the preconditions for , modalities of or maximum duration of assignment to a residence for foreigners awaiting expulsion . As this is not a measure adopted within the criminal process , judges of the peace have no jurisdiction to rule on challenges against such measures . It would appear that administrative tribunals are competent . However , this remedy appears not to be exercised in practice . Challenges to the expulsion decision may have an impact also on the question of detention , but they simply do not constitute the remedy against the fact of deprivation of liberty required by LAW ORG .

It is important to stress that this has nothing to do with the criminal proceedings which can be initiated against a foreigner for illegal entry into GPE . Such proceedings are not regularly pursued and , in case of a guilty finding , result in a fine , not deprivation of liberty .

Another aggravating aspect is that , according to information provided by the police , not only foreigners who are actually the subject of an expulsion decision are assigned to guest houses ( i.e. deprived of their liberty ) , but also so assigned are many who - in the opinion of the police - are likely to receive an unfavourable outcome in expulsion proceedings initiated against them . This practice violates even article CARDINAL of the PERSON on the Residence of Foreign Citizens .

To sum up , there is no remedy for the foreigners awaiting expulsion to challenge their detention , and no control over the detention by a judicial authority . It may be true that in some cases the person to be deported spends DATE at the guest house . But in others , where there are difficulties obtaining valid travel documents ( as appears to be the case for many NORP migrants ) , the detention can DATE and even DATE ... ”


Violation of Art. 3;Violation of Art. 5-3

Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;Julia Laffranque;Mirjana Lazarova Trajkovska;Peer Lorenzen

The applicant was born in DATE and lives in GPE - on - Don .

On DATE criminal proceedings were instituted against the applicant , at the material time Deputy Head of ORG , and he was arrested on suspicion of bribe - taking . The arrest took place in the absence of the lawyer . A search was carried out at the flat where he was staying . The applicant was released on DATE .

The applicant challenged the lawfulness of the institution of the criminal proceedings against him and of his arrest . However , on DATE and CARDINAL DATE respectively ORG in the final instance dismissed his claims .

The applicant further challenged the lawfulness of the search carried out at his flat . On DATE ORG of Rostov - on - Don held that the search had been carried out in compliance with the domestic law . The applicant alleged that he had not been informed of the above decision until DATE . Thus , he had been prevented from lodging an ordinary appeal against it . Later , the applicant tried to initiate a supervisory review of the decision of DATE . However , on CARDINAL DATE the Rostov ORG found that there were no grounds for quashing the decision of DATE .

On DATE ORG of Rostov - on - Don remanded the applicant in custody . The decision read as follows :

“ ... From the material submitted by the prosecution , it follows that [ the applicant ] was charged with several particularly serious offences , and there are grounds to suspect him of having committed other similar crimes ... Besides , as it follows from the submitted material , during the search carried out at the applicant ’s flat on DATE , [ the applicant ’s wife ] went to the balcony and threw out [ documents ] , suggesting that she was therefore trying to hide material evidence from the investigation ... This gives grounds to believe that , if not detained , [ the applicant ] may interfere with the proper administration of justice by destroying or hiding evidence , preventing the investigative authorities from uncovering other instances of his illegal activities , as well as putting pressure on those witnesses who had not yet been identified or questioned .

[ The applicant ] did not provide any medical documents certifying that his state of health prevented him from being held in detention ... ”

The applicant ’s detention interrupted the inpatient treatment he had meanwhile been undergoing for an aggravated chronic kidney condition ( acute pyelonephritis ) .

On DATE , on appeal , ORG upheld the detention order of DATE , finding that it had been lawful and justified .

On DATE ORG , citing the gravity of the charges against the applicant , extended his detention until DATE . On DATE , on appeal , ORG upheld the above decision .

On DATE ORG extended the applicant ’s detention until DATE . The court held as follows :

“ ... [ The applicant ] is charged with several particularly grave crimes committed by an organised group ; until now , the investigating authorities have not identified all those involved in the criminal activities in respect of which [ the applicant ] has been charged ; [ the applicant ] knows the persons in question . In view of the above , the court considers that , if not detained , the applicant might threaten witnesses and destroy the evidence , thereby obstructing justice ... ”

The applicant appealed , claiming that the above decision was groundless . In particular , the applicant did not know any of the witnesses , all the relevant documents were seized by the investigating authorities , the applicant was suspended from work , his access to documents was restricted and the key to his office was confiscated . Furthermore , the applicant stated that he had no criminal record , that he had a permanent place of residence and a family , that , prior to his detention , he had been undergoing medical treatment for pyelonephritis but that the treatment had been interrupted and thus the condition had been aggravated and that others involved in the case had been given more lenient preventive measures .

On DATE , on appeal , ORG upheld the lawfulness of the decision of DATE without considering the arguments put forward by the applicant .

On DATE , DATE and DATE ORG extended the applicant ’s detention until DATE , CARDINAL DATE and DATE respectively . The court again referred to the gravity of the charges against the applicant and the risk that he might put pressure on witnesses or otherwise obstruct justice .

On DATE , DATE and DATE respectively , ORG upheld the above decisions on appeal .

On DATE the pre - trial investigation was completed and the criminal case against the applicant and CARDINAL other co - defendants was referred for trial to ORG . The applicant remained in detention .

On DATE the Rostov ORG scheduled a preliminary hearing for CARDINAL DATE . The issue of the applicant ’s detention was left unexamined .

On DATE the Rostov ORG adjourned the preliminary hearing until DATE . The issue of the applicant ’s detention was again left unexamined .

On DATE the Rostov ORG held the preliminary hearing , and on CARDINAL DATE the court ordered that the preventive measure applied to the applicant should remain unchanged .

On DATE the applicant made an application for release , which on DATE was dismissed by ORG with reference to the absence of sufficient grounds for altering the preventive measure .

On DATE ORG maintained the applicant ’s custodial measure and extended it until DATE . The court reasoned its decision by the fact that the criminal case against the applicant was being examined at the final stage of the judicial investigation , that the applicant was charged with several particularly serious offences and that , if released , he might abscond or otherwise obstruct the administration of justice .

On DATE , on appeal , ORG upheld the lawfulness of the above extension order .

Prior to the applicant ’s trial , some details of the applicant ’s criminal case were disclosed by the local media .

On DATE the Rostov ORG convicted the applicant of abuse of office , bribe - taking and forgery and sentenced him to CARDINAL years’ imprisonment .

On DATE ORG of GPE modified the qualification of the crimes committed by the applicant and reduced the sentence to DATE imprisonment .

From DATE to CARDINAL DATE the applicant had been held in remand prison GPE of GPE - on - Don ( PERSON ИЗ-CARDINAL/CARDINAL ORG управления NORP службы исполнения наказаний по PERSON области ) . Throughout this period the applicant had been held in cells CARDINAL . DATE , FAC , CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL and household service units ( жилые секции отряда хозяйственного обслуживания ) nos . CARDINAL and CARDINAL .

As regards the ORG measurements and the number of inmates detained therein together with the applicant , the Government submitted as follows .

( a ) cell no . CARDINAL measuring QUANTITY accommodated up to CARDINAL detainees ;

( b ) cell no . CARDINAL measuring QUANTITY accommodated up to CARDINAL detainees ;

( c ) cell no . CARDINAL measuring QUANTITY accommodated up to CARDINAL detainees ;

( d ) cell no . CARDINAL measuring QUANTITY accommodated up to CARDINAL detainees ;

( e ) cell no . CARDINAL measuring QUANTITY accommodated up to CARDINAL detainees ;

( f ) cell no . CARDINAL measuring QUANTITY accommodated up to CARDINAL detainees ;

( g ) cell no . CARDINAL measuring QUANTITY accommodated CARDINAL detainees ;

( h ) cell no . CARDINAL measuring QUANTITY accommodated up to CARDINAL detainees ;

( i ) household unit no . CARDINAL measuring QUANTITY accommodated up to CARDINAL detainees ; and

( j ) household unit no . CARDINAL measuring QUANTITY accommodated CARDINAL detainees .

In each cell the applicant had an individual bed and had been provided with bedding ( a mattress , a pillow , a blanket , CARDINAL bed sheets , a pillowcase and a towel ) and tableware ( a spoon , a mug and a plate ) .

Each cell had windows measuring CARDINAL by QUANTITY . The windows had been barred from both the inside and the outside . The access of fresh air and day light had not been restricted . The level of natural lighting had corresponded to the established sanitary norms and allowed the inmates to read and write .

The cells had been illuminated with QUANTITY filament lamps , which had been on from TIME on DATE and from TIME on DATE and holidays . At TIME - time the cells had been lit by QUANTITY security lights with tinted glass shades . Security lights had not disturbed the inmates’ sleep .

All cells had been equipped with extractor fans and a heating system , both functioning properly at the relevant time . The average DATE temperature in the cells did not go below + QUANTITY , and DATE temperature did not go above + QUANTITY .

The applicant had received food of adequate quality in accordance with the established legal norms .

The applicant had not applied for medical assistance during his stay in the remand prison .

In support of their submissions the Government provided several certificates issued by the director of GPE on DATE , the results of a laboratory examination of the microclimate of the cells ( illumination , temperature , relative air humidity and air circulation ) in DATE and statements by wardens ( although not dated ) . The Government further annexed to their submissions copies of documents certifying that registration logs of the detention facility had been destroyed due to the expiry of the time - limit for their storage .

As regards the ORG measurements and the number of inmates detained therein the applicant submitted as follows :

( a ) cell no . CARDINAL where the applicant had been held from DATE measured QUANTITY and housed from CARDINAL detainees ;

( b ) cell no . DATE where the applicant had been held from DATE to DATE measured QUANTITY and housed from CARDINAL detainees ;

( c ) cell no . CARDINAL where the applicant had been held from DATE to DATE and from DATE to DATE measured QUANTITY and housed CARDINAL detainees ;

( d ) cell no . CARDINAL where the applicant had been held during DATE in DATE measured QUANTITY and housed from CARDINAL detainees ;

( e ) no specifics were provided for the cell no . CARDINAL where the applicant had been held during DATE in DATE ;

( f ) cell no . CARDINAL where the applicant had been held during DATE in DATE and from DATE to DATE measured QUANTITY and accommodated CARDINAL detainees ;

( g ) cell no . CARDINAL where the applicant had been held from DATE measured QUANTITY and accommodated over CARDINAL detainees ;

( h ) cell no . CARDINAL where the applicant had been held from DATE measured QUANTITY and accommodated up to CARDINAL detainees ;

( i ) no specifics were provided for household units nos . CARDINAL and CARDINAL .

The appalling sanitary condition of the cells had been aggravated by the arrangement of the lavatory , elevated by QUANTITY above the floor level and separated on one side by a CARDINAL - high brick or steel partition . As a result a person using the toilet was in plain view of his cellmates .

The CARDINAL outside walks had not been available on DATE when the applicant had been taken to participate in investigative actions or court hearings . Likewise , on DATE the applicant had been deprived of shower , normally available once DATE . In the period from DATE when the applicant had been participating in the hearing of his case , he had waited up to DATE to take a shower .

Besides CARDINAL superficial medical checkups no other medical assistance had been provided to the applicant .

For a summary of the relevant domestic law and ORG documents see PERSON v. GPE , no . GPE , § § CARDINAL , DATE .


CASE OF GIUSEPPE MOSTACCIUOLO v. ITALY (No. 1)

Preliminary objection dismissed (Article 35-1 - Exhaustion of domestic remedies);Preliminary objection dismissed (Article 34 - Victim);Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court;Reasonable time);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

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

On an unspecified date ORG , a company , applied to ORG for an order against the applicant for payment of MONEY ( MONEY ( ORG ) ) in performance of a contract for professional services . In a decision of CARDINAL DATE the president of the court granted the application . The order was served on the applicant by ORG DATE . On DATE the applicant challenged it in the same court .

Preparation of the case for trial began on CARDINAL DATE . On DATE the case was joined to another case that was pending between the same parties . The immediate enforcement of the order was suspended . Of the CARDINAL hearings listed between DATE and CARDINAL DATE two were devoted to hearing evidence from the applicant , CARDINAL to hearing other evidence , CARDINAL were adjourned by the court of its own motion , CARDINAL was adjourned to allow the parties to reach a friendly settlement , CARDINAL were adjourned at the request of the applicant or both parties and CARDINAL was adjourned because ORG had failed to appear .

NORP However , on an unspecified date the case was referred to the bench of judges dealing with the oldest cases ( sezione stralcio ) . Of the CARDINAL hearings listed DATE and DATE CARDINAL was adjourned because ORG had not appeared ( owing to the registry ’s failure to notify it of the date to which the hearing had been adjourned by the court of its own motion ) , one because of a ORG strike , CARDINAL to allow the parties to make their submissions , and CARDINAL by the court of its own motion .

DATE , on DATE the court set the case down for hearing of oral submissions on DATE . On that date judgment was reserved . According to information provided by the applicant on DATE , the proceedings were still pending .

On DATE the applicant lodged an application with ORG under PERSON no . CARDINAL of DATE , known as the “ Pinto Act ” , complaining of the length of the above - described proceedings . He asked the court to rule that there had been a breach of LAW and to order the NORP ORG to pay compensation for the pecuniary and non - pecuniary damage sustained . The applicant claimed ORG CARDINAL in pecuniary and non - pecuniary damages . He sought the reimbursement of his legal costs , including those incurred before the ORG , but did not quantify or give particulars of them .

In a decision of DATE , the text of which was deposited with the registry on DATE , ORG found that the length of the proceedings had been excessive . It held as follows :

“ ... Despite a number of adjournments for which the judicial authorities are not responsible because they were ordered at the request of the parties or because of a ORG strike , the length of the proceedings was unreasonable .

Whilst the allegation of pecuniary damage and personal injury is not supported by any proof , the applicant very likely suffered mental distress on account of the unjustified length of the proceedings . The resultant damage , given the foregoing considerations , can be assessed at CARDINAL , and the legal costs , including those for the proceedings before ORG , at CARDINAL . ”

ORG awarded the applicant ORG CARDINAL on an equitable basis in compensation for non - pecuniary damage , and EUR CARDINAL for costs and expenses , including those incurred before the ORG , but without giving a breakdown .

In a letter of CARDINAL DATE the applicant informed ORG outcome of the domestic proceedings and asked the ORG to continue its examination of his application .

The applicant did not indicate that he had appealed to ORG .

ORG decision was served on DATE and became final on DATE . The applicant served the authorities with notice to comply on DATE . The applicant lodged an application for a garnishee order with the GPE judge responsible for enforcement proceedings and a hearing was held on DATE . After obtaining a garnishee order on CARDINAL May CARDINAL , the amounts were paid on an unspecified date after service of the order .

Award of just satisfaction in the event of a breach of the requirement to dispose of proceedings within a reasonable time and amendment to LAW .

CHAPTER II

Just satisfaction Section CARDINAL Entitlement to just satisfaction

“ CARDINAL . Anyone sustaining pecuniary or non - pecuniary damage as a result of a violation of ORG , ratified by PERSON no . CARDINAL of CARDINAL DATE , on account of a failure to comply with the ‘ reasonable - time’ requirement in LAW , shall be entitled to just satisfaction .

NORP In determining whether there has been a violation , the court shall have regard to the complexity of the case and , in the light thereof , the conduct of the parties and of the judge deciding procedural issues , and also the conduct of any authority required to participate in or contribute to the resolution of the case .

NORP The court shall assess the quantum of damage in accordance with LAW and shall apply the following rules :

( a ) NORP only damage attributable to the period beyond the reasonable time referred to in subsection CARDINAL may be taken into account ;

( b ) in addition to the payment of a sum of money , reparation for non - pecuniary damage shall be made by giving suitable publicity to the finding of a violation . ”

Section CARDINAL Procedure

“ CARDINAL . Claims for just satisfaction shall be lodged with the court of appeal in which the judge sits who has jurisdiction under LAW to try cases concerning members of the judiciary in the district where the case in which the violation is alleged to have occurred was decided or discontinued at the merits stage or is still pending .

NORP The claim shall be made on an application lodged with the registry of the court of appeal by a lawyer holding a special authority containing all the information prescribed by LAW .

The application shall be made against the Minister of ORG where the alleged violation has taken place in proceedings in the ordinary courts , the Minister of Defence where it has taken place in proceedings before the military courts and the Finance Minister where it has taken place in proceedings before the tax commissioners . In all other cases , the application shall be made against the Prime Minister .

NORP The court of appeal shall hear the application in accordance with Articles CARDINAL et seq . of ORG . The application and the order setting the case down for hearing shall be served by the applicant on the defendant authority at its elected domicile at the offices of ORG ( Avvocatura dello Stato ) DATE prior to the date of the hearing before the ORG .

The parties may apply to the court for an order for production of all or part of the procedural and other documents from the proceedings in which the violation referred to in LAW is alleged to have occurred and they and their lawyers shall be entitled to be heard by the court in private if they attend the hearing . The parties may lodge memorials and documents up till DATE before the date set for the hearing or until expiry of the time allowed by the court of appeal for that purpose on an application by the parties .

The court shall deliver a decision within DATE after the application is lodged . An appeal shall lie to ORG . The decision shall be enforceable immediately .

To the extent that resources permit , payment of compensation to those entitled shall commence on DATE . ”

Section CARDINAL Time - limits and procedures for lodging applications

“ A claim for just satisfaction may be lodged while the proceedings in which the violation is alleged to have occurred are pending or within DATE from the date when the decision ending the proceedings becomes final . Claims lodged after that date shall be time - barred . ”

Section CARDINAL Communications

“ If the court decides to allow an application , its decision shall be communicated by the registry to the parties , to ORG at ORG to enable him to start an investigation into liability , and to the authorities responsible for deciding whether to institute disciplinary proceedings against the civil servants involved in the proceedings in any capacity . ”

Section CARDINAL Transitional provisions

“ CARDINAL . Within DATE after the entry into force of this LAW , anyone who has lodged an application with ORG in due time complaining of a violation of the ‘ reasonable - time’ requirement contained in LAW , ratified by LAW . CARDINAL of CARDINAL DATE , shall be entitled to lodge a claim under LAW hereof provided that the application has not by then been declared admissible by ORG . In such cases , the application to the court of appeal must state when the application to the said ORG was made .

NORP The registry of the relevant court shall inform the Minister for ORG without delay of any claim lodged in accordance with section QUANTITY and within the period laid down in subsection CARDINAL of this section . ”

Section CARDINAL Financial provisions

“ CARDINAL . NORP The financial cost of implementing this LAW , which is put at MONEY from DATE , shall be met by releasing funds entered in the DATE budget DATE in the chapter concerning the basic current - liability estimates from the ‘ special fund’ in DATE forecast of ORG . ORG deposits shall be set aside for that purpose .

The Ministry of the ORG , ORG is authorised to make the appropriate budgetary adjustments by decree . ”

On appeal from decisions delivered by the courts of appeal in “ Pinto ” proceedings , ORG , sitting as a full court ( ORG ) , gave CARDINAL judgments ( nos . CARDINAL , DATE , DATE and DATE ) on DATE , the texts of which were deposited with the registry on CARDINAL DATE , quashing the appeal court ’s decision and remitting the case for a rehearing . It held that “ the case - law of ORG is binding on the NORP courts regarding the application of PERSON no . CARDINAL ” .

In its judgment no . CARDINAL it affirmed , inter alia , the principle that

“ the court of appeal ’s determination of non - pecuniary damage in accordance with LAW no . CARDINAL/CARDINAL , although inherently based on equitable principles , must be done in a legally defined framework since reference has to be made to the amounts awarded , in similar cases , by ORG . Some divergence is permissible , within reason . ”

Extracts from the plenary ORG judgment no . CARDINAL deposited with the registry on DATE

“ ... CARDINAL.- The present application poses the fundamental question of what legal effect must be given – in implementing the Law of DATE no . CARDINAL , and in particular in determining the non - pecuniary damage arising out of the breach of the reasonable length of proceedings requirement – to the judgments of ORG , whether considered generally as interpretative guidelines which the said ORG has laid down with regard to the consequences of the said violation , or with reference to a specific case in which ORG has already had occasion to give a judgment on the delay in reaching a decision . ...

As stipulated in LAW , the legal fact which gives rise to the right to the just satisfaction that it provides for is constituted by the “ violation of ORG , ratified in accordance with LAW DATE no . CARDINAL , for failure to comply with the reasonable time referred to in DATE , paragraph CARDINAL of the LAW . ” In other words , PERSON no . CARDINAL/CARDINAL identifies the fact constituting the right to compensation by reference to a specific provision of ORG . This Convention instituted a ORG ( ORG , with its seat in GPE ) to ensure compliance with the provisions contained therein ( Article CARDINAL ) . Accordingly , the competence of the said court to determine , and therefore to interpret , the significance of the said provisions must be recognised .

As the fact constituting the right conferred by PERSON no . ORG consists of a violation of LAW , it is for ORG to determine all the elements of such a legal fact , which thus ends by being “ brought into conformity ” by ORG , whose case - law is binding on the NORP courts in so far as the application of PERSON no . PERSON is concerned .

It is not necessary therefore to pose the general problem of the relationships between LAW and the internal judicial system , which ORG ( Procuratore Generale ) has amply discussed in court . Whatever opinion one may have about that controversial issue and therefore about the place of LAW in the context of the sources of domestic law , it is certain that the direct implementation in the NORP judicial system of a provision of LAW , established by PERSON no . PERSON ( that is , by LAW in the part relating to “ reasonable time ” ) , can not diverge from the interpretation which ORG gives of the same provision .

The opposite argument , which would permit a substantial divergence between the application accorded to PERSON no . CARDINAL/CARDINAL in the national system and the interpretation given by ORG to the right to reasonable length of proceedings , would deprive the said PERSON no . CARDINAL/CARDINAL of any justification and cause the NORP ORG to violate LAW , according to which ‘ The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in LAW ( including the said LAW , which provides for the right to have a case decided within a reasonable length of time ) .

The reason behind the enactment of PERSON no . PERSON was the need to provide a domestic judicial remedy against violations in respect of the duration of proceedings , so as to give effect to the subsidiary character of intervention on the part of ORG , expressly provided for by LAW CARDINAL : “ the ORG may only deal with the matter after all domestic remedies have been exhausted ” ) . The NORP system for the protection of human rights is founded on the said principle of subsidiarity . From it derives the duty of the GPE which have ratified LAW to guarantee to individuals the protection of the rights recognised by LAW , above all in their own internal order and vis - à - vis the organs of the national judicial system . And this protection must be “ effective ” ( LAW ) , that is , of a kind to remedy the claim without the need for recourse to ORG .

The domestic remedy introduced by Law no . CARDINAL/CARDINAL did not previously exist in the NORP system , with the consequence that appeals against GPE in respect of a violation of LAW had “ clogged ” ( the term used by rapporteur PERSON in the sitting of the ORG of DATE ) ORG . ORG observed , prior to LAW no . PERSON , that the said failures to comply on the part of GPE “ reflect a continuing situation that has not yet been remedied and in respect of which litigants have no domestic remedy . This accumulation of breaches accordingly constitutes a practice that is incompatible with the Convention ” ( see the CARDINAL judgments of the ORG delivered on DATE in the cases of PERSON , PERSON , ORG and PERSON ) .

Law no . CARDINAL/CARDINAL constitutes the domestic remedy to which a “ victim of a violation ” ( as defined by LAW CARDINAL ( failure to comply with the reasonable - time requirement ) must have recourse before applying to ORG to claim the “ just satisfaction ” provided for in LAW , which , when the violation exists , is only awarded by the ORG “ if the internal law of ORG concerned allows only partial reparation to be made ” . Law no . CARDINAL/CARDINAL has therefore allowed ORG to declare inadmissible applications lodged with it ( including before the LAW was passed ) and aimed at obtaining just satisfaction provided for in LAW for the excessive length of proceedings ( ORG v. GPE , decision of DATE ) .

This mechanism for implementation of LAW and observance of the principle of subsidiarity in respect of interventions of ORG of GPE does not operate , however , in cases in which the ORG holds that the consequences of the established violation of LAW have not been redressed by domestic law or that this has been done only “ partially ” , because in such an event the said LAW provides for the intervention of ORG to protect the “ victim of the violation ” . In such cases an individual application to ORG on the basis of LAW is admissible ( Scordino and Others v. GPE , decision of DATE ) and the ORG acts directly to protect the rights of the victim whom it considers not to have been adequately protected by domestic law .

The judge of the adequacy or inadequacy of the protection that the victim has had from domestic law is , obviously , ORG , whose duty it is to apply LAW of LAW to ascertain whether , in the presence of a violation of a provision of LAW , the internal law has been able to fully redress the consequences of this violation .

The argument whereby , in applying PERSON no . PERSON , the NORP court may follow a different interpretation from that which ORG has given to the provisions of LAW ( violation of which is the fact giving entitlement to the right to compensation attributed by the said national law ) implies that the victim of the violation , if he or she receives reparation at national level considered inadequate by ORG , must obtain the just satisfaction provided for in LAW from the latter Court . This would defeat the purpose of the remedy provided for in NORP law by PERSON no . PERSON and entail a violation of the principle of the subsidiarity of the intervention of ORG .

It is therefore necessary to concur with ORG , which , in the above - mentioned decision on the PERSON application ( concerning the inadequacy of the protection afforded by the NORP courts in implementing LAW no . PERSON ) , affirmed that “ it follows from the principle of subsidiarity ... that the national courts must , where possible , interpret and apply domestic law in accordance with the Convention ” .

... The preparatory documents of PERSON no . PERSON are even more explicit . In the report concerning the bill of Senator PERSON ( proceedings of the ORG no . CARDINAL of DATE ) it is affirmed that the compensatory mechanism proposed in the legislative initiative ( and then adopted by the LAW ) secures for the applicant “ a protection analogous to that which he or she would receive in the international court ” , as the direct reference to LAW makes it possible to transfer to domestic level “ the limits of applicability of the same provision existing at international level , limits which depend essentially on the ORG and on the development of the case - law of the GPE authorities , especially that of ORG , whose decisions must therefore guide ... the domestic court in the definition of these limits ” .

... CARDINAL . – The considerations expounded in sections CARDINAL of the document refer in general to the importance of the interpretative guidance of ORG on the implementation of PERSON no . CARDINAL/CARDINAL with regard to reparation for non - pecuniary damage .

In this particular instance , however , any possibility for the national court to exclude non - pecuniary damage ( despite having found a violation of LAW of ORG ) must be considered as non - existent because such is precluded by the previous decision of ORG which , with reference to the same proceedings , had already ascertained that the unjustified delay in reaching a decision had had consequences involving non - pecuniary damage for the applicant , which the ORG itself redressed for a limited period . From such a decision of ORG it follows that , once the national court has ascertained that the violation has continued in the period following that considered in the said decision , the applicant has continued to suffer non - pecuniary damage , which must be compensated for in application of PERSON no . PERSON .

It can not therefore be maintained DATE as ORG has done DATE that compensation is not due because of the small amounts at stake in the proceedings in question . Such a reason , apart from being rendered immaterial by the fact that ORG has already ruled that non - pecuniary damage had been sustained because of delay in the same action , is in any case incorrect , because the amount of what is at stake in an action in which non - compliance with reasonable time - limits has been ascertained can never have the effect of excluding non - pecuniary damage , given that the anxiety and distress resulting from the length of the proceedings normally also occur in cases in which the amounts at stake are small ; hence this aspect may have the effect of reducing the amount of compensation but not of totally excluding it .

CARDINAL – In conclusion the decision appealed against must be quashed and the case remitted to ORG , which , in a different composition , will order payment to the applicant of the non - pecuniary damages payable as a result of the violation of the reasonable - time requirement for the period following DATE alone , taking as a reference point payments of the same kind of damages by ORG , from which it may diverge , but only to a reasonable extent ( ORG , DATE , PERSON GPE ) ” .

ORG held as follows :

“ ... Where the victim of unreasonably lengthy proceedings dies prior to the entry into force of Law no . CARDINAL of DATE [ known as the “ Pinto Act ” ] this shall preclude a right [ to just satisfaction ] from arising and passing to the heirs , in accordance with the general rule that a person who has died can not become entitled to a right conferred by an Act that is passed after their death ... ”

ORG judges noted that the right to compensation for a violation of the right to a hearing within a reasonable time derived from LAW . The mechanism set in place by the NORP standard did not give applicants a cause of action before the domestic courts . Accordingly , the right to “ just satisfaction ” could neither be acquired nor transferred by a person who had already died by the time the Pinto Act came into force . The fact that the deceased had , while alive , lodged an application with ORG was not decisive . LAW did not constitute , as the applicants had maintained , a procedural standard bringing about a transfer of powers from ORG to the domestic courts .

In this case , which concerned the possibility or otherwise of transferring to heirs the right to compensation deriving from a breach of LAW on account of the length of the proceedings , ORG referred the case to the full court indicating that there was a conflict between the case - law authorities , that is , between the restrictive approach taken by ORG in the earlier judgments regarding heirs and LAW and the CARDINAL judgments delivered by ORG , sitting as a full court , on DATE to the extent that a less strict interpretation would lead to the conclusion that this right to compensation has existed since GPE ratified LAW on DATE .

In the case giving rise to the order mentioned above referring the case to the full court ( see preceding paragraph ) , ORG , sitting as a full court , established the following principles , thus preventing any further conflicting decisions being given by the courts :

( i ) Law no . CARDINAL of CARDINAL DATE , which ratified the LAW and made it enforceable , introduced into domestic legal order the fundamental rights , belonging to the category of rights conferred on the individual by public law , provided for in the first section of the Convention and which correspond to a large extent with those set forth in LAW . In that respect the LAW provisions are confirmatory and illustrative . ...

( ii ) It is necessary to reiterate the principle that the act giving rise to the right to reparation conferred by domestic law corresponds to a breach of the provision in LAW , which is immediately applicable in domestic law .

The distinction between the right to a hearing within a reasonable time , introduced by LAW ( or even pre - existing as a constitutionally protected value ) , and the right to equitable reparation , which was allegedly introduced only by LAW , can not be allowed in so far as the protection provided by the domestic courts does not depart from that previously offered by ORG , the domestic courts being bound to comply with the case - law of ORG . ...

( iii ) Accordingly , the right to equitable reparation for loss sustained as a result of the unreasonable length of proceedings prior to the entry into force of Law no . CARDINAL/CARDINAL must be acknowledged by the domestic courts even in favour of the heirs of a party who introduced the proceedings before that date , subject only to the condition that the claim has not already been lodged with ORG and the ORG has not ruled on admissibility . ...

This judgment of ORG concerned an appeal by ORG challenging ORG award of non - pecuniary damages to a juristic person . ORG referred to the decision reached in the case of Comingersoll v. GPE [ ORG ] , no . CARDINAL , ORG CARDINALIV and , after referring to the CARDINAL judgments of the full court delivered on DATE , found that its own case - law was not in line with ORG . It held that there was no legal barrier to awarding just satisfaction to “ juristic ” persons according to the criteria of ORG . Accordingly , since ORG had correctly decided the case the appeal was dismissed .

ORG made the following observations :

“ ... [ Whereas ] non - pecuniary damage is the normal , albeit not automatic , consequence of a breach of the right to a hearing within a reasonable time , it will be deemed to exist , without it being necessary to specifically prove it ( directly or by presumption ) , on the basis of the objective fact of the breach , on condition that there are no special circumstances indicating the absence of any such damage in the actual case concerned ( PERSON . ORG CARDINAL DATE nos . CARDINAL and DATE ) .

- the assessment on an equitable basis of compensation for non - pecuniary damage is subject DATE on account of the specific reference in section CARDINAL of Law no . CARDINAL of DATE to LAW ( ratified by PERSON no . CARDINAL of CARDINAL DATE ) DATE to compliance with the Convention , in accordance with the judicial interpretation given by ORG ( non - compliance with which results in a violation of the law ) , and must therefore , as far as possible , be commensurate , in substantive and not merely formal terms , with the amounts paid in similar cases by ORG , it being possible to adduce exceptional circumstances that suggest themselves in the particular case , on condition that they are reasoned , not excessive and not unreasonable ( PERSON . ORG DATE no . CARDINAL ) . ...

- a discrepancy in the method of calculation [ between the ORG ’s case - law and LAW ] shall not affect the general vocation of PERSON no . CARDINAL of DATE to meet the objective of awarding proper compensation for a breach of the right to a hearing within a reasonable time ( vocation acknowledged by ORG in , inter alia , a decision of DATE in GPE ( application no . CARDINAL/CARDINAL ) ) , and accordingly shall not allow any doubt as to the compatibility of that domestic standard with the international commitments entered into by GPE when ratifying LAW and the formal recognition , also at constitutional level , of the principle stated in LAW ... ”

In the report ORG , revised on DATE , the ORG deputies made the following indications regarding an assessment of the Pinto remedy :

“ ... CARDINAL . As regards the domestic remedy introduced in DATE by the “ Pinto Act ” , a number of shortcomings remain , particularly in connection with the effectiveness of the remedy and its application in conformity with the Convention : in particular , the law does not provide yet for the acceleration of pending proceedings . ...

In the framework of its examination of the CARDINALst DATE report , ORG expressed concern at the fact that this legislation did not foresee the speeding up of the proceedings and that its application posed a risk of aggravating the backlog of the appeal courts . ...

It should be pointed out that in the framework of its examination of DATE report , ORG had noted with concern that the Convention had no direct effect and had consequently invited the NORP authorities to intensify their efforts at national level as well as their contacts with the different bodies of ORG competent in this field . ... ”

In this interim resolution the ORG deputies indicated as follows :

“ ORG

Noting ...

“ ... the setting - up of a domestic remedy providing compensation in cases of excessive length of proceedings , adopted in DATE ( the " Pinto ” law ) , as well as the recent development of the case - law of ORG , increasing the direct effect of the case - law of ORG in the NORP legal system , while noting that this remedy still does not enable for acceleration of proceedings so as to grant effective redress to all victims ;

Stressing that the setting - up of domestic remedies does not dispense states from their general obligation to solve the structural problems underlying violations ;

Finding that despite the efforts undertaken , numerous elements still indicate that the solution to the problem will not be found in the near future ( as evidenced in particular by the statistical data , the new cases before both domestic courts and ORG , the information contained in the annual reports submitted by the government to ORG and in the reports of ORG at the Court of cassation ) ; ...

Stressing the importance the LAW attaches to the right to fair administration of justice in a NORP society and recalling that the problem of the excessive length of judicial proceedings , by reason of its persistence and extent , constitutes a real danger for the respect of the rule of law in GPE ; ...

URGES the NORP authorities to enhance their political commitment and make it their effective priority to meet GPE ’s obligation under the ORG and the ORG ’s judgments , to secure the right to a fair trial within a reasonable time to all persons under GPE ’s jurisdiction . ... ”

ORG for the efficiency of justice was set up at ORG by Resolution Res(CARDINAL)CARDINAL with the aim of ( a ) improving the efficiency and the functioning of the justice of member GPE with a view to ensuring that everyone within their jurisdiction can enforce their legal rights effectively , thereby generating increased confidence of the citizens in the justice system and ( b ) enabling a better implementation of the international legal instruments of ORG concerning efficiency and fairness of justice .

In its framework programme ( CEPEJ ( DATE ) CARDINAL Rev CARDINAL § ( CARDINAL ) the ORG noted that “ the mechanisms which are limited to compensation are too weak and do not adequately incite the GPE to modify their operational process , and provide compensation only a posteriori in the event of a proven violation instead of trying to find a solution for the problem of delays . ”


Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Peer Lorenzen;Rait Maruste;Renate Jaeger;Snejana Botoucharova

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

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

In DATE a certain C. repaired the applicant ’s DATE cottage , for which the applicant paid him CZK CARDINAL,CARDINAL ( EUR CARDINAL ) . However , this did not correspond to the real extent of the work C. had carried out . On the applicant ’s criminal complaint , the police started to investigate the case . However , they closed it on DATE , as C. was subject to a presidential amnesty .

On DATE the applicant brought a civil action for damages against C. , seeking payment of CZK CARDINAL ( EUR CARDINAL ) .

In a judgment of CARDINAL DATE ORG ordered C. to pay the applicant CZK CARDINAL,CARDINAL ( EUR CARDINAL ) with interest and dismissed the remainder of the applicant ’s action . On DATE and CARDINAL DATE respectively , the applicant and ORG appealed .

On DATE ORG partly dismissed and partly granted the applicant ’s appeal and sent the relevant part of the case back to ORG .

At a hearing held before FAC on DATE the applicant unsuccessfully requested the court to order a new expert opinion . At the end of the hearing the court delivered a judgment by which it rejected the remaining part of the applicant ’s action for damages . The applicant was ordered to pay court fees .

In a judgment of DATE ORG upheld the merits of ORG judgment .

On DATE ORG judgment was served on the applicant who , on DATE , was informed that the judgments had not yet become enforceable , as it was not possible to deliver ORG judgment to C. According to the Government , the judgment became final on DATE .

On DATE the applicant applied for compensation pursuant to Act no . CARDINAL/CARDINAL as amended . She claimed CZK MONEY ( ORG CARDINAL ) in respect of pecuniary damage , CZK CARDINAL ( EUR CARDINAL ) in respect of non - pecuniary damage and CZK MONEY ( EUR CARDINAL ) in respect of court fees .

In a letter of DATE ORG informed the applicant that her application had been accepted , that it had been found that her right to a determination of their civil claim within a reasonable time had been violated and that she had been awarded a sum of CZK CARDINAL,CARDINAL ( EUR CARDINAL ) in respect of non - pecuniary damage she might have sustained and CZK CARDINAL,CARDINAL ( EUR CARDINAL ) in respect of court fees . ORG refused , however , the applicant ’s claim regarding compensation for pecuniary damage .

On DATE the applicant informed the Registry that she did not intend to turn to a court under section CARDINAL(CARDINAL ) of Act no . CARDINAL/CARDINAL as amended .

The relevant domestic law and practice concerning remedies for the allegedly excessive length of judicial proceedings are set out in the ORG ’s decision in the case of PERSON v. GPE , no . MONEY ( dec . ) , § § CARDINAL - CARDINAL , DATE ) .


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

The applicant was born in DATE and lives in GPE .

On DATE the applicant was arrested on suspicion of robbery and assault and taken to a police station for questioning . He was released DATE on an undertaking not to leave town . On an unspecified date he retained a lawyer to represent him .

According to the applicant , on CARDINAL DATE P. , one of the victims of the assault , identified the applicant as one of the perpetrators . P. confirmed his allegations during the confrontation with the applicant .

On DATE the prosecutor authorised the applicant ’s detention pending investigation and trial . On DATE the applicant was taken into custody .

The bill of indictment prepared by the police investigator on DATE was approved by the prosecutor on CARDINAL October CARDINAL and subsequently forwarded to ORG of GPE .

On DATE ORG remitted the matter for additional investigation to the police . The court noted , inter alia , that the investigator had failed to communicate to the applicant the materials from the case file , including the forensic expert ’s reports . Following the completion of the investigation , the case file was resent to the court .

On DATE ORG granted the applicant ’s request to appoint his mother to represent him before the court .

On DATE ORG found the applicant guilty as charged and sentenced him to DATE and CARDINAL months’ imprisonment . ORG quashed the applicant ’s conviction and remitted the matter for fresh consideration on DATE .

It appears that during the new trial , ORG refused to appoint the applicant ’s mother to represent him . The applicant retained counsel PERSON as his defender .

On DATE the applicant asked the court to release him pending trial . He referred to appalling conditions of his detention and his deteriorating health . The court dismissed the applicant ’s request .

On DATE ORG found the applicant guilty as charged and sentenced him to DATE and CARDINAL months’ imprisonment . The court based its findings , inter alia , on forensic evidence and the testimonies of the applicant ’s accomplice and CARDINAL of the victims of the assault , who testified in court . Their testimonies were corroborated by the statements made by P. , another victim of the assault . The court could not establish P. ’s whereabouts and relied on the transcripts of his earlier questioning by the police .

The applicant appealed against his conviction . He challenged the lawfulness of the trial court ’s findings and alleged that the sentence imposed on him had been too severe . In that respect he mentioned that he had by then spent DATE in appalling conditions awaiting determination of the criminal charges against him .

On DATE ORG upheld the applicant ’s conviction on appeal , dismissing , inter alia , the applicant ’s argument that the sentence was too severe .

According to the Government , from DATE to CARDINAL DATE the applicant was detained at remand prison no . ORG in GPE . DATE and DATE he was placed in remand prison no . IZ-CARDINAL/CARDINAL in GPE . On DATE the applicant was transferred back to remand prison no . CARDINAL/CARDINAL , where he stayed until DATE . The applicant did not dispute the information submitted by the Government .

According to the applicant , at all times the number of inmates detained in each cell exceeded its capacity . The cells were designed to accommodate CARDINAL persons . Instead , there were CARDINAL inmates held there . The number of beds was not sufficient and the inmates had to take turns to sleep . As a result of being detained in such congested conditions for an extended period of time , the applicant contracted tuberculosis .

The Government did not provide any information concerning the number of inmates detained with the applicant referring to the destruction of the official relevant records due to the expiration of the statutory time - limit for their storage .

On DATE the applicant underwent an X - ray examination and was diagnosed with pulmonary tuberculosis . According to the excerpt from his medical file , submitted by the Government , he was examined by a phtisiologist who prescribed him the following medication : isoniazid , pyrazinamide , ethambutol , rifampicin , multivitamins and special food rations .

On DATE the applicant was transferred to the hospital at remand prison no . IZ-CARDINAL/CARDINAL in GPE .

According to the excerpt from the applicant ’s medical file , submitted by the Government , he received the following medication : isoniazid , streptomycin , pyrazinamide , rifampicin and vitamin B. On DATE the applicant had a blood test for HIV and syphilis with negative results . On DATE he had general blood and urine tests , which showed no anomalies .

According to the excerpt from the applicant ’s medical file submitted by the Government , on DATE the applicant was examined by a doctor , who found him fit for transfer to the correctional colony and authorised his discharge from the prison hospital . The doctor further recommended that the applicant continue in - patient treatment at the colony and indicated that he should undergo another X - ray examination in DATE .

According to the ORG , the applicant received special food rations as per applicable domestic standards . His health condition was satisfactory .

From DATE to CARDINAL DATE the applicant was transported from GPE to medical colony no . ORG in LOC .

According to the Government , the conditions of the applicant ’s transport were satisfactory . On the train he had an individual sleeping berth . The number of detainees on the train did not exceed the applicable standards . The carriage had natural ventilation , toilet facilities and electric light . The applicant received food and drinking water and was allowed to use the toilet facilities when required .

According to the applicant , he did not receive any medical treatment during the whole period of the transfer to the colony .

On DATE the applicant arrived at medical correctional colony no . ORG in GPE . He was held there until DATE .

According to the excerpt from the medical file , on DATE the applicant was examined by a doctor who noted that the applicant ’s health condition was satisfactory and that he did not develop good tolerance to the prescribed medication . The doctor recommended special food rations and out - patient treatment . He compiled a list of medicines for the applicant to be given intermittently , notably DATE . It included ethambutol , rifadin and pyrazinamide .

On DATE the applicant was examined by a phtisiologist , who noted that the applicant ’s condition was satisfactory , his temperature was CARDINAL , and he was receiving the necessary food rations . The doctor further recommended the same diet and out - patient treatment prescribed earlier .

From DATE to CARDINAL DATE the applicant was being transported from LOC to medical correctional colony no . LIU-CARDINAL in LOC . According to the Government , the conditions of the applicant ’s transport were in compliance with the standards established by LAW .

According to the applicant , he received no medical assistance during the whole period of the transfer .

On DATE the applicant arrived at medical correctional colony no . LIU-CARDINAL in LOC . According to the Government , he underwent further treatment there and was cured of tuberculosis .

On DATE the applicant was admitted to hospital in accordance with the decision of the medical panel . In - patient treatment was completed on CARDINAL DATE . The applicant continued to receive out - patient treatment and on DATE the medical panel found him completely cured of tuberculosis . The applicant was discharged from the medical colony .

The ORG report on the visit to GPE carried out from DATE provides as follows :

“ CARDINAL . The ORG is also seriously concerned by the practice of transferring back from GPE to ORG facilities prisoners diagnosed to have BK+ tuberculosis ( and hence highly contagious ) , as well as by the interruption of GPE treatment while at the ORG . An interruption of the treatment also appeared to occur during transfers between penitentiary establishments .

In the interest of combating the spread of tuberculosis within the law - enforcement and penitentiary system and in society in general , the ORG recommends that immediate measures be taken to put an end to the above - mentioned practice .

The relevant extracts from Treatment of Tuberculosis : ORG , DATE , provide the recommendations as follows :

“ CARDINAL NORP Recommended standardized treatment regimens

New cases

Treatment regimens have an initial ( or intensive ) phase lasting DATE and a continuation phase usually lasting DATE . During the initial phase , consisting usually of isoniazid , rifampicin , pyrazinamide and ethambutol , the tubercle bacilli are killed rapidly . Infectious patients quickly become non - infectious ( within DATE ) . Symptoms abate . The vast majority of patients with sputum smear - positive TB become smear - negative within DATE . During the continuation phase , fewer drugs are necessary but for a longer time . The sterilizing effect of the drugs eliminates the remaining bacilli and prevents subsequent relapse . ”

The relevant extracts from the CARDINALrd ORG [ ORG ( CARDINAL ) CARDINAL ] by ORG for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment ( “ the ORG ” ) read as follows :

A prison health care service should be able to provide medical treatment and nursing care , as well as appropriate diets , physiotherapy , rehabilitation or any other necessary special facility , in conditions comparable to those enjoyed by patients in the outside community . Provision in terms of medical , nursing and technical staff , as well as LOC , installations and equipment , should be geared accordingly .

There should be appropriate supervision of the pharmacy and of the distribution of medicines . Further , the preparation of medicines should always be entrusted to qualified staff ( pharmacist / nurse , etc . ) .

DATE . A medical file should be compiled for each patient , containing diagnostic information as well as an ongoing record of the patient ’s evolution and of any special examinations he has undergone . In the event of a transfer , the file should be forwarded to the doctors in the receiving establishment .

Further , DATE registers should be kept by health care teams , in which particular incidents relating to the patients should be mentioned . Such registers are useful in that they provide an overall view of the health care situation in the prison , at the same time as highlighting specific problems which may arise .

The smooth operation of a health care service presupposes that doctors and nursing staff are able to meet regularly and to form a working team under the authority of a senior doctor in charge of the service . ”


No Violation of Art. 6-1;Violation of Art. 13;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - Convention proceedings

The applicant was born in DATE and lives in FAC .

On DATE the applicant was grievously injured in a car accident . She was unconscious for DATE and remained in hospital for DATE . Although she and her husband were separated at the time and were going through a divorce , he was also in the car and sustained some injuries .

Section CARDINAL of LAW ( Zakon o kazenskem postopku ) read as follows :

“ ( CARDINAL ) If criminal proceedings are terminated or a judgment is rendered by which the applicant is acquitted or the bill of indictment dismissed , or if a decision is rendered by which the bill of indictment is rejected , the court shall decide in the judgment or decision that the costs and expenses of the criminal proceedings , from clause CARDINAL to clause CARDINAL of the second paragraph of section CARDINAL of the present Act , as well as necessary expenses of the accused and necessary expenses and fees of defence counsel , shall be charged to the [ ORG ] budget ... ”