CASE OF NURETTIN ALDEMIR AND OTHERS v. TURKEY

Preliminary objection joined to merits (victim) and dismissed;Violation of Art. 11;Remainder inadmissible

The applicants are members of “ EĞİTİM - SEN ” ( Eğitim ve Bilim Emekçileri DATE ORG ) , a trade union which is a member of “ KESK ” ( ORG – ORG ) .

In DATE ORG prepared a draft bill to amend LAW . While this bill was being discussed in the ORG , “ KESK ” decided to organise meetings in GPE to protest the bill . The aim was to draw public attention to and achieve the withdrawal of this bill , which in their view did not meet international standards .

In the meantime , on DATE , the Governorship of GPE had issued a circular , providing guidelines on meetings and demonstrations organised in the city of GPE , in accordance with ORG ( Law no . DATE ) . According to this circular , the meeting place chosen by KESK was not among the permitted areas .

On DATE PERSON , PERSON , PERSON , PERSON and PERSON , and on DATE PERSON , NORP and PERSON , gathered in FAC together with other persons .

NORP On both occasions , while the president of “ KESK ” was reading out press statements , police officers warned the demonstrators that their action was contrary to the law and that they had to disperse . The demonstrators blocked the main street of the FAC district ( FAC ) and attempted to march towards ORG . The police officers then intervened and used truncheons , sticks and tear gas with a view to dispersing the crowds . Some of the demonstrators attacked the security forces using pavement stones and sticks which caused the injury of CARDINAL police officers and the destruction of a police vehicle . The applicants were also wounded during the incidents .

On DATE PERSON and PERSON were examined by a doctor from ORG . The doctor noted an ecchymosis of QUANTITY on the left eyebrow of ORG . As regards PERSON , he noted an abrasion of QUANTITY on his right eyebrow . PERSON , PERSON and PERSON did not submit any medical evidence to the ORG in support of their subsequent allegations of ill - treatment .

On DATE PERSON was examined by a forensic medical expert from ORG who observed an ecchymosis on her lip , a hyperaemic graze on her left wrist and superficial abrasions on her right wrist and arm . The expert concluded that the injuries rendered Arzu Doğan unfit for work for DATE .

On DATE , NORP was examined by a forensic medical expert from ORG . The doctor observed a sutured injury on the occipital lobe of his head and a haematoma under the injury , and considered that his injuries rendered the applicant unfit for work for DATE .

Also on DATE , LOC was examined by a doctor from ORG . The doctor observed abrasions on the skin on the left scapula and on the back , and a haematoma of QUANTITY on the right frontal lobe . He concluded that the injuries rendered PERSON unfit for work for DATE .

On an unspecified date , the applicants filed a complaint with the GPE public prosecutor ’s office against ORG , the director of ORG , the director of ORG branch of ORG and the police officers who were involved in the incidents .

In the meantime , on DATE the GPE public prosecutor brought charges against CARDINAL demonstrators , including PERSON and PERSON , for violation of ORG .

On DATE , pursuant to Law no . DATE on the prosecution of civil servants , the GPE public prosecutor transferred the file to ORG seeking an authorisation to initiate criminal proceedings .

On DATE ORG , relying on LAW no . DATE , decided not to take an action against the officials and officers accused by the applicants as it found that the allegations were of an “ abstract nature ” . ORG considered that the force used by the police was lawful and justified in the circumstances of the case and that the officers had been under an obligation to disperse the demonstrators who had organised an illegal meeting . This decision was sent to the GPE public prosecutor ’s office on DATE .

In a decision of DATE ORG acquitted the applicants PERSON and PERSON , as well as other demonstrators , of the charges . The court decided that the demonstrators enjoyed a right to hold unarmed and peaceful meetings and demonstrations without prior permission .

On DATE the GPE public prosecutor issued a decision of non - prosecution as regards the applicants’ complaints .

DATE LAW provides :

“ Everyone has the right to hold unarmed and peaceful meetings and demonstration marches without prior permission . ...

The formalities , conditions , and procedures governing the exercise of the right to hold meetings and demonstration marches shall be prescribed by law . ”

At the material time section CARDINAL of LAW ( Law no . CARDINAL ) was worded as follows :

“ In order for a meeting to take place , the governor ’s office or authorities of the district in which the demonstration is planned must be informed , during TIME and CARDINAL prior to the meeting , by a notice containing the signature of all the members of the organising board ... ”

Section CARDINAL of the same LAW prohibited demonstrations and processions on public streets , in parks , places of worship and buildings in which public services were based . Demonstrations organised in public squares had to comply with security instructions and not disrupt ORG movement or public transport . Finally , section CARDINAL provided that demonstrations and processions which did not comply with the provisions of this law would be dispersed by force on the order of the governor ’s office and after the demonstrators had been warned .

According to a circular issued by the Governorship of GPE on DATE , which provides guidelines on meetings and demonstrations , ORG avenue is not among the permitted areas for demonstrations .

“ The police may use firearms in the event of :

( a ) NORP self defence , ...

( h ) if a person or a group resists the police and prevents them from carrying out their duties or if there is an attack against the police . ”

“ In cases of resistance by persons whose arrest is necessary or by groups whose dispersal is necessary or of their threatening to attack or carrying out an attack , the police may use violence to subdue these actions .

Use of violence refers to the use of bodily force , physical force and all types of weapons specified in the law and it gradually increases according to the nature and level of resistance and attack in such a way as to restore calm .

In cases of intervention by group forces , the extent of the use of force and the equipment and instruments to be used are determined by the commander of the intervening force . ”

According to LAW , a complainant may file an appeal against the decision of a public prosecutor not to institute criminal proceedings . This appeal must be lodged , within DATE from DATE of notification of the decision to the complainant , with the president of the assize court in whose jurisdiction the public prosecutor works .


No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for private life)

Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Josep Casadevall;Kristina Pardalos;Luis López Guerra;Nona Tsotsoria

The applicant was born in DATE . After numerous previous failed attempts , the applicant became the mother of a child , conceived as the result of an in vitro fertilisation ( ORG ) procedure with donated gametes . The procedure was performed in ORG in GPE ; and produced CARDINAL embryos , CARDINAL of which were implanted on DATE .

The remaining CARDINAL embryos obtained on the same occasion were frozen until the applicant was considered fit by her physician to undergo another pregnancy . A protocol was concluded between the applicant and PERSON , in which the applicant acknowledged that she had been informed that in CARDINAL - CARDINAL % of cases , after thawing , the embryos proved not to be viable , and that if that were the case the embryo transfer would be impossible .

According to a document issued by ORG ( “ the ORG ” ) , on DATE the ORG was authorised to function as a bank for genetic material . However , the circumstances in which that document was issued are currently under the scrutiny of the domestic criminal court , in view also of the fact that it was ORG , and not the ORG , which had exclusive competence to give such authorisations .

On DATE , the Directorate for ORG attached to ORG ( ORG ) closed the S. Medical Centre , seized all the genetic material found there and deposited it at ORG ( ORG ) . This decision was not contested before the courts .

On DATE , the applicant wrote to ORG in her capacity as “ owner of the CARDINAL embryos ” , expressing concerns as to the state of her frozen embryos and asking to be informed of the practical procedure to be followed in order to urgently retrieve her embryos .

On DATE , the applicant was informed by ORG that it was not aware of any technical means of identifying the embryos in question , given that an inventory was still being made of all the material seized and no document relating to the applicant ’s embryos had been identified .

In any event , in order to be able to retrieve her genetic material from ORG , the applicant was advised to appoint a doctor specialising in embryology , who would then contact the ORG for that purpose .

NORP In attempts to find an embryologist the applicant addressed her request to ORG , ORG and ORG .

In its reply , ORG gave the applicant a list of the medical institutions accredited as banks for genetic material , by virtue of ministerial Order no . CARDINAL of DATE ; the S. Medical Centre and the ORG were not mentioned in the list . ORG also informed the applicant that it could not intervene in any way in the contractual relationship between her and PERSON , assuming that such a contract existed and included specific provisions as to who could retrieve the embryos and under what circumstances . Referring to the letter of DATE from ORG , ORG suggested that the applicant should contact PERSON and , on the basis of the contract she had concluded with the clinic , ask for support in identifying and retrieving her embryos .

ORG replied to the applicant on DATE , informing her that an embryo transfer could be performed only by a specialist in assisted reproduction , and that such transfers could not be carried out until the relevant embryos had been properly identified .

The applicant finally contacted CARDINAL doctors from ORG in GPE ( QUANTITY from GPE ) . On DATE , in accordance with the legal requirements , ORG requested the authority of the ORG to perform the retrieval , but received no answer . The request was reiterated on DATE ; on DATE the ORG informed ORG that it could not grant the requested authority , since such authority could only be given in respect of a tissue and cell bank accredited by the ORG , which the ORG was not .

On DATE , ORG informed the applicant that the ORG ’s refusal was not binding on ORG ; the ORG had been appointed as the legal custodian of the genetic material pending a criminal investigation . Once the investigation was terminated and ORG was indicted , the file was to be sent before the criminal courts on DATE . Consequently , an order was issued authorising the applicant to retrieve her embryos by DATE , since after that date ORG would cease to act as a deposit bank appointed by the investigating authorities . The applicant was required to be accompanied by an embryologist and to provide a special container with liquid nitrogen for the transfer .

The applicant managed to obtain from a clinic in GPE a special container with liquid nitrogen of the kind required for such transfers and asked the clinic to carry out the transfer .

On DATE , ORG informed the applicant that the ORG had refused to consent to the transfer for the following reasons : the ORG had never been authorised by the ORG to store such materials and therefore there could be no guarantee as to the quality of the material stored there ( against contamination , deterioration , and so on ) ; moreover , the storage of such material in the ORG did not comply with the legal requirements ( Order of the Minister of Public Health no . CARDINAL/CARDINAL ) concerning the traceability of the genetic material .

In view of the ORG ’s refusal , of the fact that ORG carried out its activities under the authority of the ORG , and in so far as it could not guarantee the quality and security of the genetic material , the clinic informed the applicant that it could not proceed with the retrieval .

On DATE the applicant wrote again to ORG , asking it to issue an order allowing the ORG to continue to store her embryos until the ORG had consented to their retrieval . As justification of the need for such an urgent measure , the applicant pointed out that an inability to transfer the embryos would have serious repercussions on the right to life of her embryos and on her right to have a family .

On DATE , the applicant sent a similar letter to the ORG , asking it to re - evaluate the circumstances of her case and consequently to authorise the transfer of her embryos to ORG .

The ORG replied on DATE , informing the applicant as follows : the ORG had been appointed as custodian in complete disregard of the legal provisions of Directive GPE and of Article CARDINAL ( CARDINAL ) of LAW ( Law no . CARDINAL/CARDINAL ) ; the ORG had never been accredited , nor had it been given approval by the ORG to operate as a bank for genetic material ; the S. Medical Centre had been accredited to operate as a bank of genetic material only on DATE , and not in DATE , when the embryos had been frozen and stored ; LAW , invoked by ORG , did not provide any safeguards as to the security and safety of the embryos while they were stored at S. ( for DATE ) and subsequently at the ORG ( for DATE ) .

The ORG also contended that it did not have any information regarding the way in which the embryos had been transported from S. to the ORG , and was thus unable to guarantee that the minimum sanitary conditions had been complied with .

The ORG could therefore not authorise the transfer of the embryos from the ORG to another clinic , either within GPE or internationally ; furthermore , according to the provisions of LAW ) of Directive CARDINAL/CARDINAL/EC , “ all tissue and cells that do not comply with [ the legal ] provisions shall be discarded . ”

On DATE , the applicant requested ORG under Rule CARDINAL of ORG to direct the NORP authorities to allow her to retrieve her QUANTITY embryos stored at ORG .

On DATE , the President of the ORG to which the case had been allocated decided , in the interests of the parties and the proper conduct of the proceedings before the ORG , to indicate to the Government of GPE , under LAW , that the embryos should not be destroyed after DATE , for the duration of the proceedings before the ORG .

The President also decided to request the Government , under Rule CARDINAL § CARDINAL ( a ) of ORG , to submit information as to the legal status of the embryos after DATE and on the domestic law and procedure which would allow the applicant to obtain a court transfer order quickly .

NORP In reply , the Government informed the ORG as follows .

NORP In its letter of CARDINAL DATE , the ORG informed the ORG that it was merely the authorised depository of a receptacle seized by ORG from S. , and that its only obligation was to make sure that the receptacle was preserved at a temperature of -CARDINAL degrees Celsius . The ORG therefore could not dispose of the biological material stored in the receptacle in any way .

ORG informed the Government on DATE that they had asked the ORG to take all necessary measures to adequately preserve the applicant ’s embryos . ORG also asked the ORG to share with the ORG all relevant information concerning the appropriate procedure for preserving the above - mentioned embryos .

With regard to the information required under LAW ( a ) , the ORG appended the letter of DATE from ORG , which stated that the applicant ’s request to have her genetic material returned had already been granted by the prosecutor on DATE . The decision had been taken after the applicant ’s embryos had been identified on DATE ; the applicant had been given until DATE to retrieve her embryos , the same deadline having been set for CARDINAL other individuals who were in a situation similar to the applicant ’s , in view of the necessity of avoiding repeated interferences with the contents of the receptacles and the fact that since an indictment had already been issued , the investigation authorities could no longer pay the ORG the cost of storage .

ORG also informed the Government that the seizure , transport and handover of the genetic material to ORG had been carried out with the agreement of ORG , whose representative – the manager of the ORG at that time – had cooperated directly with the investigation authorities .

NORP In conclusion , the Government contended that the applicant already had a decision allowing the transfer of the embryos , which could be carried out at any time provided the applicant was accompanied by an embryologist and had the appropriate receptacle .

NORP In response to the Government ’s reply , the applicant asked the Court to note that it was not specified whether the applicant would be able to retrieve her embryos in the absence of authorisation from the NTA . In practice , as she had already shown , the embryo transfer was not possible unless the ORG authorised it .

On DATE , the applicant formulated before the ORG civil claims in the criminal proceedings pending before the domestic courts following the indictment issued by ORG ( see paragraph CARDINAL above ) ; she thus asked the court to allow an embryo transfer from the ORG to a NORP or foreign authorised clinic .

The applicant ’s request was dismissed on DATE ; the court considered that given that the prosecutor ’s decision of CARDINAL DATE had already granted her claim , the actual implementation and enforcement of the decision exceeded the framework of the criminal trial . The court also held that the applicant had the opportunity , if she so wished , to contest the ORG ’s refusal to authorise the embryo transfer before the civil courts .

The applicant contested this ruling ; on DATE her appeal was dismissed as inadmissible by ORG . In the court ’s reasoning it was stated that there was no legal basis to respond to her request within the criminal proceedings , the civil courts having jurisdiction to examine her complaints .

In his dissenting opinion , Judge PERSON estimated that the applicant ’s request was well founded , in so far as , in spite of the prosecutor ’s decision ordering the restitution of her embryos , the authorities were refusing to implement the decision . Having regard to the fact that the confiscation of the embryos was carried out within criminal proceedings , it was only natural that the restitution should also be carried out within the same proceedings . At the same time , considering that the applicant could not be held responsible for the confiscation , which had been ordered by the investigating authorities in the absence of any authorisation from the ORG , it was excessive to ask the applicant to pursue yet another set of proceedings in order to be able to obtain authorisation for transfer from the ORG .

On DATE the applicant lodged with ORG a request seeking to obtain , in accordance with the provisions of PERSON no . CARDINAL/CARDINAL regulating administrative proceedings , the ORG ’s authorisation for the transfer of her embryos to a specialised and authorised clinic , whether in GPE or abroad .

In their defence , the ORG reiterated their arguments , according to which the fact that the embryos had been deposited firstly at S. , and then at the ORG , where they had been transported under unknown conditions , neither of the CARDINAL institutions being at the time accredited as banks for genetic material , created uncertainty with regard to the safety and quality of the embryos ( see also paragraph CARDINAL above ) . In such circumstances , it was not possible to authorise transfer under the relevant legislation . Furthermore , if any clinic from GPE agreed to deposit the CARDINAL embryos , the ORG would have to revoke that clinic ’s accreditation for non - compliance with the law .

The applicant ’s request was dismissed as ill - founded on DATE . The court considered that in view of the relevant legislation , requiring specific standards of quality and safety with regard to the genetic material and in so far as neither ORG at the time of the original deposit of embryos nor the ORG , was accredited or authorised to function as banks of genetic material , the ORG ’s refusal was justified and in accordance with the law .

The applicant contested this judgment before ORG and ORG , reiterating that according to the Government ’s submissions before the ORG , the transfer of the embryos from ORG into the ORG was carried out with the approval of ORG and of the ORG ’s manager ; in that respect , the ORG ’s refusal to authorise a further transfer appeared unjustified . Furthermore , the applicant ’s few visits to the ORG for the purposes of checking the state of her embryos revealed that the embryos were being kept in precarious conditions , in the absence of any trained staff able to properly supervise their preservation .

The High Court gave its ruling on CARDINAL DATE , allowing the applicant ’s request and obliging the ORG to authorise the transfer of the CARDINAL embryos from the ORG to an authorised clinic in GPE or abroad .

In its reasoning , the court mainly held that in so far as the ORG ’s attribution was to coordinate the activities of procurement , processing , preservation , storage , validation and distribution of human tissue and cells in GPE , there was no legal ground for it to interfere in the implementation of the prosecutor ’s decision to restore the embryos .

The fluctuating attitude of the ORG concerning its participation and/or cooperation with the criminal investigation authorities , namely , confirming that the retrieval of the embryos from S. had been done with the approval of the ORG ’s manager , while also holding that the transfer had been made without its consent , proved once more that the ORG was confused and uncertain about the scope of its own authority . The ORG ’s cooperation with the criminal investigation authorities was certain , as it came out especially from the observations submitted by ORG before ORG ( see paragraph CARDINAL above ) . Such cooperation was , in any event , natural , having regard to the specific nature of the confiscated goods . In this context , the ORG should have advised the investigation authorities to deposit the embryos in an authorised clinic , which they did not do . On the contrary , the ORG proved to be excessively formalistic only when it came to the restitution of the embryos to the applicant , considering , unfoundedly , that it was within its competence to intervene in the enforcement of the prosecutor ’s decision :

“ This behaviour on the part of the ORG breached the applicant ’s right to retrieve her embryos and to make use of them as urgently as possible , in view of the special characteristics of the genetic material and also of the applicant ’s age , in the context of her desire to become a mother . ”

The ORG ’s allegations , that in DATE , when the applicant underwent the ORG , she did not comply with the relevant legal requirements , were not in themselves relevant , in so far as the criminal proceedings regarding the activity of ORG were still pending ; moreover , in DATE , when the applicant deposited her embryos at S. , the clinic was in the process of being accredited , as shown by the inspections organised to that end on DATE , and DATE and DATE by the ORG and ORG , culminating with the accreditation apparently having been granted to the clinic by the ORG on DATE .

In spite of all these factors , and of the fact that the prosecutor decided that the embryos should be given back to the applicant , the ORG unjustifiably intervened and blocked the restitution procedure ; the ORG unlawfully arrogated to itself an authority it did not have , while also threatening any medical institution which could have received the embryos even without the ORG ’s authorisation that in such a case their licence would be suspended or even revoked .

Furthermore , the ORG could not cite any doubt as to the security and quality of the genetic material because it had been deposited at the ORG , an unauthorised clinic , having regard to the fact that at the moment of the deposit their agreement had been given , and afterwards , following the ORG ’s request that the embryos should be preserved and protected pending the proceedings before this ORG , the ORG was expressly solicited by ORG to provide expertise so as to satisfy the ORG ’s request .

Referring to the case of GPE v. GPE ( no . CARDINAL , DATE ) , ORG held that when there was no domestic law able to adequately define the specific circumstances in the relationship between an individual and the state , the latter was bound to protect fundamental human rights , such as , in the present case , the right to respect for private life and the right to life .

For this reason , the court considered that :

“ By its obstructive attitude , the ORG infringed the applicant ’s rights and interests linked to the right to a private life and the right to life , by not properly balancing the public interest that the ORG is bound to protect and the legitimate interests of the applicant . ”

It therefore allowed the applicant ’s claims as formulated , holding that

“ the ORG was obliged to authorise the transfer of the CARDINAL embryos from the ORG to an authorised and specialised clinic in GPE or abroad , a clinic which would be able to receive the embryos in its bank and which would be able to assist the applicant with the desired embryo transfer . ”

In accordance with ORG ruling , on DATE the ORG issued a decision in which it “ authorised the transfer of the CARDINAL embryos from the IFM PERSON to an authorised clinic in GPE , in accordance with the relevant legal framework ” .

The ORG further held that the second alternative mentioned in ORG judgment , namely that the transfer could also be authorised abroad , could not be implemented , in so far as the appropriate authorisation for a transfer abroad was not an ordinary authorisation for transfer , but “ an authorisation for export ” , which was never requested as such by the applicant ; moreover , authorisation for export had a very particular character , and in its absence the export of human tissues and cells was prohibited .

Subsequently , the applicant unsuccessfully attempted to transfer her embryos to the PERSON clinic ( a private clinic in GPE ) . In their response to the Government on why the transfer was not possible , on DATE ORG informed that they could not proceed with the transfer without relevant medical information concerning the embryos and their medical history , including data on how they had been preserved from DATE . Consequently and having regard to the fact that the clinic did not have the special quarantine conditions needed for deposit of the embryos , the transfer could not be carried out in compliance with the applicable legal provisions .

On DATE , a ORG prosecutor issued a decision , in which it was held that having regard to ORG ruling and to the fact that the only ORG medical institutions accredited to function as “ human cells and/or tissue banks ” were respectively the Prof . Dr. ORG and ORG in GPE and ORG in GPE , for reasons of efficiency the first institution was to become the new custodian of the applicant ’s embryos . The embryo transfer was to be carried out by a specialist transport company , the costs being borne by the ORG . All documents regarding the maintenance of the embryos were to be transferred to the new custodian .

The prosecutor ’s decision was not contested by the applicant .

In accordance with this decision , on DATE the embryo transfer was carried out and the embryos placed in ORG within the Prof . Dr. ORG , the newly appointed custodian . According to a letter sent by ORG to the Government on DATE , the new custodian was accredited as a genetic bank and human cell and tissue bank , and was also authorised to assist the applicant with any procedure related to artificial insemination .

In a letter of CARDINAL DATE , the applicant submitted that the transfer of the embryos had once more been carried out without her consent and even without her being consulted or informed in advance . She further stated that in the Prof . Dr. ORG she had had bad experiences , in so far as in DATE she underwent CARDINAL unsuccessful ORG procedures there and therefore she could no longer trust the professional capacity of those doctors . She considered that she was entitled to be assisted for future ORG by doctors of her choice , in whom she trusted ; therefore the transfer of her embryos into the above - mentioned clinic had denied her that right .

The applicant requested the opportunity to transfer her embryos to a clinic of her choice , at the expense of the NORP authorities , who were responsible for the situation created and also for the well - being of her embryos .

By a letter of DATE , the Prof . Dr. ORG informed the applicant ’s representative that from DATE they could be contacted to set a date on which the applicant , in the presence of an embryologist , could come to take possession of her genetic material in order to transfer it elsewhere , in accordance with the applicable rules and regulations set by the ORG .

By a letter sent to ORG , the applicant stated that she had found a clinic outside GPE “ willing to help ” her and that a date of transfer was “ hopefully ” imminent . In the meantime , she had also tried to set up a new procedure in the hope of a new pregnancy . She further stressed the trauma she had gone through on account of the ORG ’s successive interferences with her right to have another child by ORG .

On DATE , the applicant alleged that she had contacted many clinics in GPE regarding the transfer of her embryos , but in spite of the fact that they were open to the idea at the beginning , “ after further evaluation , the risk for them seemed to high ” and no transfer was agreed .

The Government replied that on CARDINAL hand , the applicant ’s assertions were too vague and unsubstantiated , and on the other hand , that she had not acted with specific diligence to transfer her embryos from Prof . Dr. PERSON clinic , either to start an ORG procedure or at least to get more information about how her embryos were being taken care of in that clinic .

On DATE , the Government sent a document issued by the Prof . Dr. PERSON clinic in which it was confirmed that the applicant could initiate an ORG procedure in that clinic , with the assistance of a doctor and an embryologist of her choice , whether from GPE or from abroad , in so far as these two had a license to practice in GPE . Furthermore , a letter from the private clinic ORG in GPE was appended , stating that the clinic was willing to take the applicant ’s embryos while its doctors would monitor both the patient and the embryo - transfer .

On DATE , the applicant met the manager of the ORG clinic ; following their discussion , she wrote a letter to the clinic in which she asked for more information concerning the concrete stages envisaged for the embryo transfer , as well as a precise date on which such a transfer could be accomplished .

The Act is divided into CARDINAL titles , covering a wide array of subjects specific to the public health area . Title VI contains provisions covering the procurement and transplant of organs , tissues and cells of human origin used for therapeutic purposes , the donors of organs , tissues and human - origin cells , the donation and transplant thereof and the financing of transplant activity . It transposes into national legislation Directive CARDINAL/CARDINAL/EC of ORG and of ORG on setting standards of quality and safety for the donation , procurement , testing , processing , preservation , storage and distribution of human tissue and cells . It also defines the role and responsibilities of ORG , as the main competent authority in the field of the procurement and transplant of organs , tissues and cells of human origin , including the accreditation , designation , authorization or licensing of tissue establishments and tissue and cell preparation processes .

ORG shall be responsible for the coordination , supervision , approval and implementation of any provisions regarding transplant activities .

( CARDINAL ) Any transplant of tissue and cells of human origin may be processed only from the banks accredited or approved by ORG ...

( CARDINAL ) ORG or exports of tissue and cells shall be possible only if specifically authorised by ORG .

This sets out provisions governing the mechanisms to be put into place to ensure the quality and safety of tissues and cells and their traceability , in compliance with the relevant NORP law requirements .

This lists the tissue establishments accredited , designated , authorized or licensed to function as tissue and human cell banks and/or users . Neither the clinic PERSON , nor the ORG appear in this LAW .

In its relevant parts concerning the procedure on the sequestration of goods pending criminal investigation , the code reads as follows :

( CARDINAL ) The authority that enforces the sequestration ( sechestru ) must identify and evaluate the goods in question ; it may , if need be , make recourse to experts . [ ... ]

( CARDINAL ) If there is the danger of estrangement , other movables sequestered will be sealed or taken away , and a custodian can be appointed .

( CARDINAL ) The body that enforces the sequestration draws up an official report on all acts performed under LAW , including a detailed description of the goods sequestered and specifying their value ...

( CARDINAL ) Against this measure taken and of its enforcement means , the defendant , the party bearing the civil responsibility , as well as any other interested person may complain to the criminal investigation body who ordered the measure or to the prosecutor who supervises the criminal investigation , before summoning the court , after which the complaint is addressed to the relevant court .

( CARDINAL ) The court decision may be appealed against separately . The appeal does not suspend the execution .

( CARDINAL ) After the final settlement of the criminal trial , if no complaint has been lodged against the enforcement of the assurance measure , it may be contested under the civil law .

( CARDINAL ) If the criminal investigation body or the court finds that items taken away from the defendant , or from any other person who received them in custody , are the property of the victim or have been wrongly taken away from him / her , it orders the return of those items to the victim . Any other person who claims a right over the things taken away may ask under LAW for enforcement of this right and return of the items taken .

( CARDINAL ) The items taken away are returned only if this does not impede the revealing of the truth and the just settlement of the cause , and imposes upon the person to whom they are returned the obligation to keep them until the decision is declared final .

An overview of the law and practice concerning artificial procreation in general and on the standards of quality and safety for the donation , procurement , testing , processing , preservation , storage and distribution of human tissue and cells in LOC is included in PERSON and Others v. GPE ( [ ORG ] , no . CARDINAL , § § DATE , DATE ) .


Violation of Art. 3;Violations of Art. 8;Violation of Art. 13+3;No violation of Art. 13+8;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

The applicant was born in DATE and lives in PERSON . He is the former senior assistant to the prosecutor of LOC of GPE .

On DATE the applicant was arrested by the NORP Secret Services on charges of bribe - taking . Later the charges were modified to corruption ( trafic de influenţă ) .

On DATE the ORG ordered the remand of the applicant for a period of DATE . The remand was later prolonged by the decisions of ORG of DATE and DATE .

On DATE ORG ordered the applicant 's release from detention .

On DATE the applicant was convicted by ORG and sentenced to DATE imprisonment . He was immediately put in detention . The applicant appealed against that decision . The outcome of the proceedings is unknown to the ORG .

The applicant 's complaints regarding the conditions of detention relate to CARDINAL periods of detention served in the Remand Centre No . CARDINAL of ORG ( Izolatorul Anchetei Preliminare Nr . CARDINAL ) , namely DATE and DATE , and DATE and DATE .

The applicant claims to have been detained in a CARDINAL m² cell together with at times CARDINAL people . There were CARDINAL metal bunk - beds , with no mattresses or covering and it was not always possible to have access to a bed because of overcrowding . After lodging his application with the ORG , he was transferred to a smaller cell of CARDINAL m² , where he claims to have had to take turns in sleeping , because of overcrowding , and where the conditions were allegedly considerably worse than before .

Smoking inside the cells was not prohibited by the internal regulations of the prison , and because of lack of alternative smoking facilities , the inmates had to smoke inside the cells . The applicant suffered from asthma and the prison administration was aware of this since he had been arrested and brought to prison immediately after undergoing asthma treatment in hospital , where he was arrested . Because of the exposure to cigarette smoke the applicant suffered many asthma attacks , which usually happened CARDINAL or CARDINAL times a day .

There was no adequate medical assistance . Although there were medical personnel in the penitentiary , their ability to help was limited because of lack of medication . The applicant asked the prison doctor on many occasions for medical assistance , but he was refused . He was told that the prison did not have the necessary medication . Because of the lack of medication he had to endure the attacks and wait for them to pass , being obliged to sit in a vertical position . His attacks became more frequent and started to last longer . While the prison doctor knew that the applicant suffered from asthma , he gave his permission for the applicant to be placed in a cell with smokers . The applicant had to rely entirely on the supply of medication from his family .

His situation was worsened by the fact that the cell 's window was closed by shutters and there was no fresh air coming through it . Moreover , the cell was not provided with a ventilation system , and was therefore very damp .

Because of lack of heating and insulation the cell was very cold during the DATE and very hot during DATE .

The shutters on the windows prevented daylight from coming in . Nevertheless , the prison administration limited the electricity supply to the cells to TIME ; therefore the inmates had to live in darkness and had great difficulty in preparing food .

Water was provided to the cell for TIME , sometimes less . Access to warm water was limited to only once in DATE . There were no facilities for washing and drying clothes . The inmates had to dry their clothes in the cell .

Because of poor medical assistance and bad hygienic conditions , the cells were infected with bed bugs , lice and ants . The inmates were exposed to infectious diseases like tuberculosis , skin and respiratory infections .

The toilet was situated at QUANTITY from the dining table and was permanently open . It was impossible to prevent the bad smell because of the lack of adequate water supply and lack of cleaning products .

There was no library in the prison and the inmates did not have access to newspapers or other publications . There were no appropriate facilities for recreation and exercise .

NORP The food served to the inmates was of a very bad quality . It consisted of boiled water with a bad smell and was almost inedible . The applicant submitted that the Government spent CARDINAL Moldovan Lei ( MDL ) ( the equivalent of MONEY ( ORG ) at the time ) for one detainee 's food per day , while the price of a loaf of bread was more than MDL CARDINAL .

The applicant was detained in cell no . CARDINAL with a surface of CARDINAL m² , designed for CARDINAL detainees , and in cell no . CARDINAL of CARDINAL.CARDINAL m² , designed for CARDINAL detainees .

In accordance with LAW , the applicant could have asked the prison authorities to be removed to another cell with non - smokers .

The detainees were provided with medical assistance in accordance with the law . When a prisoner needed medical assistance that could not be provided by the prison doctors , he could be taken to a regular hospital . The prison was provided with medication by the ORG ; however , in cases when the prison lacked certain medication , the detainees had the right to receive it from their relatives . Since the applicant was provided with all the necessary medication , no medical report prescribing other medication was drafted .

NORP The prison authorities were aware of the applicant 's asthma . According to the Government , the prison register stated that the applicant requested medical assistance only twice , on DATE and CARDINAL DATE . In their observations of CARDINAL DATE , the ORG stated that on DATE a doctor consulted him and prescribed medication . The Government did not present to the ORG a copy of the prison register .

In their supplementary observations on the merits of DATE , the ORG stated that medical assistance and medication were provided to the applicant on DATE that he requested them . The Government provided a copy of a hand - written report of CARDINAL DATE , in which a prison doctor informed the chief medical doctor of the prison that the applicant had been examined by him on those dates and that medication had been provided to him .

Ventilation of the cells was effected by opening the windows and fanlights during the detainees ' exercise period and by the common ventilation system .

Heating was provided by the prison 's own heating system which used natural gas and coal .

The cells had access to daylight , and electricity was provided continuously .

The cells were permanently provided with tap water , and accordingly the inmates enjoyed an adequate level of hygiene . The ORG also stated that the detainees had access to warm water .

The toilets were separated from the rest of the cell by a wall in order to ensure the privacy of the detainees .

The cells were equipped with radio sets , sometimes with television sets .

The applicant enjoyed the right to a DATE walk outside for TIME with the possibility of exercising .

The detainees were provided with free food in accordance with the norms provided by the ORG and the quality of food was satisfactory . The prison was provided on a DATE basis with bread , vegetable oil , vegetables , tea and sugar . Because of insufficient funding , the provision of meat , fish and dairy products was not always possible . However , the detainees were allowed to receive once DATE a parcel with food from their families . Moreover , the detainees had the right to buy food from the prison shop at least once DATE , and to spend up to MDL CARDINAL ( the equivalent of ORG at the time ) .

There was no intention to humiliate or to debase the applicant and the prison authorities did not undertake any action in order to humiliate him .

The letters sent to him by his mother did not always reach him . In support of this submission the applicant sent the ORG a receipt of a registered letter with acknowledgement of receipt sent to him by his mother on DATE , which never reached him .

According to LAW , detained persons needed a written authorisation from the body in charge of their cases in order to be able to correspond with their families . The applicant did not have an authorisation to correspond with or communicate by telephone with his relatives because of the seriousness of the offence he was charged with and in the interests of justice .

NORP The applicant also submits that he was precluded from seeing his wife and his daughter and that he could not have telephone contact with them .

On DATE the applicant together with other cellmates lodged a complaint with ORG , in which the applicant complained inter alia about the ban on receiving visits , including long term visits , from his family and other persons . The prisoners asked ORG to order the prison authorities to allow them have long term visits , telephone conversations and other kinds of contact with their relatives .

On DATE , ORG informed the applicant that his complaint had been forwarded to ORG of PERSON .

On DATE the applicant and his cellmates wrote a new letter to ORG complaining about the lack of reply from ORG of PERSON to their letter . The prisoners repeated their complaints about the ban on visits by relatives and on telephone conversations with them and complained about an alleged breach of LAW .

On DATE the applicant received a letter from ORG of PERSON dated DATE by which his complaints about the ban on visits were dismissed . In particular it stated : “ ... all the rights of remanded persons are provided for by LAW . Such rights as telephone conversations and long or short term visits by relatives or other persons are not provided for in that law . The fact that these rights are not expressly forbidden does not mean that they are guaranteed ” .

On DATE the applicant and his cellmates challenged the ORG 's refusal of CARDINAL DATE before ORG . Relying on LAW and on domestic legislation , they complained about the prison authority 's and prosecutor 's denial of their right to have visits , including long term visits , from their relatives , telephone conversations and other kinds of contact with relatives and other persons . They asked the court to oblige the prosecutor to solve their problem . They also asked the court to hear the case in their presence .

On DATE ORG wrote the applicant a letter dismissing the complaints .

On DATE the applicant and his co - detainees lodged a supplementary application with ORG asking it to examine their application of DATE . They argued that in accordance with LAW , the ORG was obliged to examine their application within DATE of receipt . The court 's failure to comply with that deadline constituted a breach of their right to an effective remedy under LAW .

In the meantime , on DATE , judge V.M. from ORG examined the applicant 's and his cellmates ' application of DATE in their absence and dismissed it . The court considered that the application had a general character and did not refer to any specific events . The court issued a decision with the application number CARDINAL - CARDINAL/CARDINAL dated DATE .

DATE . On DATE , the same judge from ORG examined an application of other detainees from Cricova prison concerning alleged abuses by police during a prison riot and dismissed it . The court 's decision had exactly the same application number and DATE as the decision in respect of the applicant and his cellmates .

On DATE ORG informed the applicant and his co - detainees that their application had been dismissed on DATE .

On DATE the applicant and his co - detainees wrote a letter to ORG and asked for a copy of its decision of DATE .

On DATE the applicant and his co - detainees appealed against the decision of DATE to ORG . In their appeal application they stated inter alia that ORG had examined their case in their absence and that it had not even sent them a copy of its decision .

On DATE ORG sent the applicant and his cellmates a copy of its decision of DATE which referred to the riot at Cricova prison .

On DATE the applicant and his cellmates sent a new letter to ORG and informed it that the decision sent to them on DATE did not refer to their case and asked for a copy of their decision . The ORG does not have information as to whether the applicant and his cellmates received a reply to this letter .

On DATE the ORG examined the applicant 's appeal against the decision of ORG and dismissed it by a final judgment . In its judgment ORG indicated that the applicant and his lawyer had been present at the hearing . However , the facts and the law part referred to the Cricova prison riot and did not have any connection with the applicant 's case .

The Government submit that according to LAW , a detained person needed a written authorisation from the investigation body in charge of his case in order to be able to receive visits from family or from other persons .

They claim , and the applicant does not deny , that he received visits from his mother on CARDINAL DATE , CARDINAL DATE and CARDINAL DATE .

The relevant parts of the ORG 's report concerning the visit to GPE DATE read as follows :

“ CARDINAL . Prisoners were accommodated primarily in CARDINAL buildings . Buildings I , II and VII for the most part accommodated remand prisoners . Male juveniles were held in a section of building III , the basement of which was reserved for prisoners in transit . Women had a separate detention area , situated in FAC prisoners were scattered among the various buildings , except for the buildings housing the detachment of convicted prisoners employed as workers , situated in FAC . It should also be noted that all prisoners sentenced to life imprisonment were accommodated in the basement of FAC .

In contrast , in all the other detention areas , living conditions of the vast majority of the prison population left a considerable amount to be desired . In most of the cells , the living space per prisoner was well below the minimum standard set and the cramming in of persons had reached an intolerable level . For example , in Buildings I and II , CARDINAL people were accommodated in cells of CARDINAL m² , CARDINAL people had to share a cell of QUANTITY m² , and CARDINAL people were packed into a cell of CARDINAL m² . In the juveniles ' section in Building III , CARDINAL young people were placed in a cell of CARDINAL m² and CARDINAL in a cell of CARDINAL m² . In addition , the delegation observed that cells of CARDINAL m² to CARDINAL m² accommodated CARDINAL people .

Furthermore , in these cells access to natural light was very limited , artificial lighting was mediocre , and the air polluted and rank . For prisoners still under investigation ( i.e. over QUANTITY prisoners ) , the situation was even worse , their cells being virtually totally without access to natural light because of the thick external metal blinds covering the windows . By force of circumstances , the equipment was reduced to the bare minimum , comprising metal or bunk beds which were extremely rudimentary and in a poor state , and a table and CARDINAL or CARDINAL benches . Furthermore , in many cells , there were not enough beds and prisoners had to share them or sleep in turns . In addition , the bedding was in a bad condition ; the very small stocks of mattresses , blankets and sheets was not enough and many prisoners without family or resources had to sleep just on the bed frame .

The cells had a sanitary annex , a real source of infection . Above the NORP toilet was a tap which served both as a flush and as a source of water which prisoners could use to freshen up or wash . Moreover , this area was only partially partitioned by a small low wall QUANTITY high , which meant that it was not possible to preserve one 's privacy .

The state of repair and cleanliness in the cell blocks , overall , was also of considerable concern . In addition , many of the cells were infested with cockroaches and other vermin and some prisoners also complained that there were rodents .

To sum up , the living and hygiene conditions for the vast majority of the prison population were execrable and , more particularly , constituted a serious health risk .

The CARDINAL transit cells in use at the time of the visit in LOC deserve particular mention . The situation in terms of living space in the cells was without a doubt the worst seen . Up to CARDINAL prisoners were crammed into cells of CARDINAL m² . CARDINAL of the surface was taken up by a CARDINAL level wooden platform ( without mattress and blankets ) completely blocking the window . In addition , the artificial lighting was mediocre and the atmosphere there was suffocating . As the remaining surface of the cell was filled up with the detainees ' belongings and an NORP toilet , the detainees had no other choice but to pile onto the CARDINAL levels of the platform . A number of detainees had been accommodated in these intolerable conditions for DATE .

As regards washing facilities for prisoners , they had DATE access to the showers . However , the number of showers was notoriously inadequate for the male population ( CARDINAL showers for CARDINAL detainees , and moreover , its functioning was unreliable ) . In addition , prisoners who were not in a position to receive the basic washing necessities from their families were totally left without because of the lack of soap and towels in the prison .

The material conditions described above were further aggravated by another major inconvenience . Prisoners had to put up with very loud and repetitive music which was ongoing throughout DATE and broadcast by loud speakers in the yard from TIME . The reason given for this measure was to ensure that the various categories of prisoners had no contact with each other . Many prisoners complained about this situation and the delegation was able to see for itself how obtrusive it was . For example , in many of the cells it was virtually impossible to hold a conversation .

The health care staff in prison No . CARDINAL comprised CARDINAL full - time doctors , assisted by CARDINAL assistants , CARDINAL nurses and a psychologist . The CARDINAL doctors were as follows : CARDINAL doctor in charge of the prison medical service , CARDINAL general practitioners , CARDINAL pneumologists , a psychiatrist , a dermatologist , a radiologist and a dentist . In addition to providing a consultation facility , the medical staff was responsible for an infirmary with a capacity of CARDINAL beds , although in reality , this area accommodated CARDINAL patients , primarily patients suffering from tuberculosis .

The medical team could at a pinch be considered sufficient . However , such is not the case for the team of assistants and nurses . ”

“ CARDINAL . The visited penitentiary establishments were severely affected by the country 's economic situation . The budget ceiling for spending on the prison service under the DATE LAW had been set at MONEY ( MONEY ) or PERCENT of the resources needed per year . As a result , prisons suffered from severe shortages from every standpoint . For example , the DATE budget for feeding a prisoner was CARDINAL Lei , PERCENT of the current statutory norm . Prisons also suffered form cuts in electricity , water and heating , not to mention the unavailability of medicines necessary for treating prisoners .

In their letter of DATE , the NORP authorities refer to the efforts made at DATE by ORG to obtain humanitarian aid from international organizations and individuals , in order to resolve the most urgent problems of the prison system ( CARDINAL Lei have been obtained in this way ) .

The ORG recognizes the laudable efforts made by the NORP prison administration and these deserve to be supported . Nevertheless , the ORG has already recalled on several occasions that there are certain basic necessities of life that must , in all circumstances , including in a serious economic situation , be assured by the state in respect of persons for which it is responsible . Nothing can ever exempt the state from this responsibility .

As a consequence , the ORG calls upon the NORP authorities , at the highest political level , to take without delay the necessary measures in order that all prisons in GPE may adequately assure the basic necessities of life for all detainees .

The description of Prison No . CARDINAL in PERSON in paragraph CARDINAL of the report on the DATE visit is still valid . As previously indicated , this establishment suffered from severe overcrowding : CARDINAL prisoners ( mainly remand prisoners ) , including CARDINAL women and CARDINAL juveniles , for CARDINAL places .

For example , the follow - up visit to Prison No . CARDINAL in PERSON revealed positive changes which the ORG welcomes . It particularly approves of the removal of the heavy blinds covering the windows of cells looking onto the interior of the establishment . It is also planned to replace the blinds on the windows looking onto the street with an alternative arrangement that will let in sufficient natural light .

... Major repairs had also been made to the heating with , in particular , the installation of a new boiler , while the prison 's central showers had been completely renovated ( CARDINAL shower rooms were operational and a fourth was being repaired ) with the help of former prisoners and prisoners ' families . This made it possible for male prisoners to take a shower , with hot water , every ten days . In certain buildings , moreover , repair work on the electrical system and painting of the corridors had been completed . A few cells were currently undergoing refurbishment .

That said , the appalling living conditions and state of hygiene in buildings I , II and III , including the transit cells , described in DATE and DATE of the previous report , had not changed ( except as far as access to natural light is concerned ) . Indeed , the acute overcrowding in these buildings exacerbated matters still further . In the few cells viewed that were properly equipped and fitted out , this was due to the prisoners themselves , who had been able to procure what was needed from their families .

The absence of organised activity programmes was a common feature of the establishments visited . This was undoubtedly a consequence of the economic situation and overcrowding , but also of the restrictive legislation governing the categories of prisoners accommodated there . TIME fraction of the prison population had work : TIME in PERSON and PERSON and CARDINAL in GPE . The majority of these prisoners formed part of the workforce allocated to the various prison duties . Other forms of activity were almost non - existent . It should be noted , however , that some efforts had been made in Prison No . CARDINAL , following the ORG 's recommendations . For example , the outdoor exercise areas had been equipped with modest sports facilities . In this context , management plans to fit out CARDINAL sports halls as soon as possible deserve particular support . Improvements had also been made to the juvenile detention regime : a television room had been provided and a few activities organised , such as music , singing and group discussions / debates . However , these early attempts to meet the needs of young persons remain an isolated example . In the other establishments , they were left entirely to their own devices .

The follow - up visit to Prison No . CARDINAL showed that compared with DATE ( see paragraph CARDINAL of the report ) the situation regarding health staffing levels had deteriorated . In particular , the number of nurses had fallen ( from CARDINAL to CARDINAL ) added to which , CARDINAL of these posts were vacant . The number of doctors and medical assistants remained the same , CARDINAL and CARDINAL respectively , but the post of head doctor was vacant . Such a team is not sufficient to meet the needs of CARDINAL prisoners , a significant number of which were in the prison hospital ( CARDINAL ) , particularly as far as the care staff is concerned ( medical assistants and nurses ) . The number of complaints received concerning access to medical staff and medical care is therefore hardly surprising .

As indicated in the preliminary remarks , the supply with necessary medication was problematic in the visited establishments . The detainees mostly depended on their families or on non - governmental organisations in order to obtain the necessary medication ( for example , ORG at Prison No . CARDINAL ) ...

From the standpoint of medical confidentiality , medical examinations and consultations did not take place in appropriate conditions in any of the establishments . As a rule , everything took place in the custody areas at cell doors ( through the hatch ) , in the presence of guards . If prisoners had to be treated in a consultation room , guards were also in attendance . The situation in Prison No . CARDINAL , in the so - called " procedure " room in the infirmary , was particularly undignified . Treatment was administered through a closed door with bars , with an opening measuring QUANTITY . The patients concerned then had to present the relevant part of the body , be it forearm or buttocks , in full view of other prisoners and staff .

There also needs to be a review of access to a doctor and a medical assistant . The delegation observed that when they were doing their DATE rounds , the medical assistants only had minimal contact with prisoners , and always in the presence of guards . As a result , it proved very difficult to request consultations , which had to be done through guards . Many complaints were received about the considerable delays in gaining access to care staff and the barriers erected by guards . The ORG recommends that this situation be remedied .

There are several indicators to suggest that the situation regarding tuberculosis , already a matter of concern in DATE , is deteriorating . For example , in Prison No . CARDINAL , there has been a constant increase in the number of recorded active cases , from CARDINAL in DATE to CARDINAL in DATE . Moreover , according to statistics supplied , tuberculosis accounts for PERCENT of the deaths in prison .

NORP The ORG notes the improvements made in Prison No . CARDINAL to the conditions in which visits take place , with the refurbishment of the booths used for short visits and rooms fitted out for convicted prisoners ' long visits . Nevertheless , the visiting areas remain insufficient , given the capacity of the establishment . ... The ORG invites the GPE authorities to develop the facilities for visits in the establishments visited at the earliest possible opportunity . ”

NORP In paragraph CARDINAL of its report concerning the visit to GPE DATE , the ORG recommended that prison authorities should offer a minimum of CARDINAL m² per prisoner .

The relevant provision of LAW reads as follows :

“ ( CARDINAL ) The ORG shall ensure the privacy of letters , telegrams and other postal dispatches , of telephone conversations and of the use of other legal means of communication ” .

This principle is restricted in relation to detainees . Specific provisions relating to the privacy of prisoners ' correspondence were set out in the Code for the Execution of Criminal Sentences .

The relevant provisions of the LAW for the Execution of Criminal Sentences read as follows :

“ ( CARDINAL ) A convicted prisoner shall enjoy rights established in the legislation on the execution of criminal sanctions in accordance with the nature of the sanction and the restrictions of any of his rights imposed upon him by the sentencing court .

( CARDINAL ) A convicted prisoner shall be entitled :

( c ) to receive and send mail , and to submit explanations , proposals and complaints in his language , and , if necessary , to use the services of an interpreter . ”

“ ( CARDINAL ) A convicted prisoner shall be entitled to receive and send an unlimited number of letters and telegrams .

( CARDINAL ) A convicted prisoner 's outgoing and incoming correspondence ... shall be subject to censorship . A petition addressed to an ombudsman by a detained person shall not be verified by the prison administration and shall be transmitted to the addressee within TIME ( as amended by PERSON no . CARDINAL-XIV of DATE ) .

( CARDINAL ) A convicted prisoner 's proposals , requests and complaints addressed to an hierarchically higher legal authority shall be dispatched to such authority within DATE . ”

The relevant provisions of the PERSON on Pre - Trial Detention No . CARDINAL read as follows :

“ CARDINAL . Remanded prisoners have the right to :

d ) to be visited by their lawyer , relatives and other persons ;

f ) to correspond with their relatives and with other persons , to send complaints , requests and letters to public authorities and to public servants in accordance with the provisions of LAW ; ”

“ ( CARDINAL ) Remanded prisoners can correspond with their relatives and with other persons on the basis of a written authorisation by the person or the authority in charge with their case . Letters written or received by the remanded persons are sent to the addressees or handed by the prison authority to the remanded persons within DATE . ”

By virtue of Law No . CARDINAL-XV of CARDINAL which entered into force on DATE the following was added at DATE first sentence :

“ who can limit the correspondence in the interest of the criminal investigation or in the interest of justice , as well as in the interest of security and order in the detention facility . ”

By virtue of the same law the words “ within DATE ” were replaced with “ within TIME ” .

“ ( CARDINAL ) The administration of the remand centre allows the remanded person to have contact with his or her relatives or other persons , if the contact is authorised by the investigating body charged with the remanded person 's case . As a rule , the remanded person has this right once a month . The length of a meeting shall be from TIME . ”


CASE OF BULLEN AND SONEJI v. THE UNITED KINGDOM

Violation of Article 6 - Right to a fair trial

Giovanni Bonello;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nebojša Vučinić;Nicolas Bratza

The applicants were born in DATE and DATE respectively and live in GPE . They were charged with involvement in a money laundering scheme together with a third co - accused , PERSON

On DATE the second applicant pleaded guilty at a ORG to conspiracy to launder the proceeds of criminal conduct contrary to CARDINAL of LAW DATE . On DATE the first applicant pleaded guilty to the same offence .

On DATE the prosecution served notice under section CARDINAL(CARDINAL)(a ) of MONEY DATE ( ORG DATE , see paragraphs CARDINAL - CARDINAL below ) , as amended by LAW DATE , indicating their intention to seek confiscation orders to recover the proceeds of the applicants’ criminal conduct .

On DATE counsel for the second applicant requested an early confiscation hearing and counsel for the co - accused , Mr. PERSON , requested a confiscation hearing in DATE . The trial judge pencilled in a date on DATE beginning DATE , as that was the first occasion on which he would be available . The trial judge further directed that the date would be considered again on the proposed date for sentence , DATE .

On DATE the second applicant was sentenced to DATE imprisonment and the first applicant was sentenced to CARDINAL years’ imprisonment . Prior to sentence the confiscation hearing was formally postponed until after passing sentence and was fixed for DATE , outside the DATE period required under section CARDINALA of the ORG DATE .

On DATE the case was listed for the confiscation hearing with a time - estimate of DATE . The applicants objected that the court lacked jurisdiction to hear the confiscation proceedings on the grounds that DATE had elapsed since their convictions and that the judge had not considered whether there were “ exceptional circumstances ” warranting the imposition of the confiscation orders outside the statutory time - limit , as required by section CARDINALA ( CARDINAL ) of the ORG DATE , as amended ( see paragraph CARDINAL below ) .

On DATE the trial judge held that he had jurisdiction to hear the confiscation proceedings . It was then agreed by the parties that the confiscation proceedings should be adjourned to await the outcome of a similar case which was due to be heard by ORG , R v PERSON and GPE . The confiscation proceedings were adjourned until DATE .

On DATE Mr E. was granted leave to appeal against his conviction . On DATE both the applicants’ applications for leave to appeal against sentence were refused by a single judge of ORG .

On DATE ORG delivered its judgment in NORP v. PERSON and ORG ( [ DATE ] EWCA Crim CARDINAL ) . It found that although adjournments beyond the DATE period prescribed by statute should be avoided , exceptional circumstances such as the unavailability of a judge would not deprive a subsequent confiscation order of its validity .

On DATE the confiscation proceedings were listed again for mention . Renewal of argument in relation to ORG jurisdiction to hear the confiscation proceedings , in light of ORG judgment in NORP v. PERSON and ORG , was listed for DATE . Following the hearing on DATE , the judge held that the court retained a common law power to adjourn beyond the statutory DATE time - limit in compelling circumstances such as where there was an illness or the judge was unavailable . In his opinion a statutory postponement citing exceptional circumstances was required only where the purpose of the postponement was to gather further information , and not in the instant case where the issue had been the unavailability of the judge .

On DATE the Court of Appeal heard and dismissed PERSON appeal against conviction . On DATE the confiscation proceedings were listed again for mention before the trial judge , to notify him of the result of PERSON appeal . At this stage PERSON was seeking leave to appeal to ORG and was awaiting the decision of ORG on his application for leave to appeal . The substantive hearing of the confiscation hearing was again adjourned .

On DATE ORG refused PERSON application for leave to appeal to ORG and declined to find that a question of law of general public importance was involved in the decision .

On DATE the confiscation proceedings were listed for directions and with the agreement of all parties , the hearing was fixed to begin on DATE .

On DATE the confiscation proceedings were again listed for mention at the request of Mr. PERSON who sought to adjourn the confiscation hearing that was fixed for DATE .

On DATE the confiscation proceedings were again listed to consider PERSON application for adjournment . The proceedings were adjourned to DATE with a time estimate of DATE .

On DATE ORG imposed a confiscation order on the second applicant in the amount of ORG , to be paid within DATE of the resolution of any appeal to ORG , with a consecutive term of CARDINAL months’ imprisonment to be served in default .

On DATE the second applicant lodged an application for leave to appeal , challenging the confiscation order on the ground that ORG had no jurisdiction to make it because of the lapse of the DATE period provided by section CARDINALA(CARDINAL ) of the ORG DATE .

On DATE ORG imposed a confiscation order on the first applicant in the sum of GBP CARDINAL , to be paid within DATE of the resolution of any appeal to ORG , with a consecutive term of CARDINAL months’ imprisonment to be served in default .

On DATE the first applicant lodged an application for leave to appeal challenging the confiscation order on the same grounds as the second applicant ( see paragraph CARDINAL above ) .

On DATE the second applicant obtained a Certificate of Inadequacy from ORG . This entitled him to return to ORG to seek a reduction of the confiscation order .

On DATE the second applicant ’s case was listed before ORG and the confiscation order was reduced to ORG CARDINAL , taking into account ORG .

On DATE ORG allowed the ORG appeals and quashed the confiscation orders and default sentences of imprisonment . They noted that on DATE , defence counsel for the second applicant and the co - accused Mr. PERSON had requested an early hearing at ORG . However , the earliest date that the trial judge would be available was DATE beginning DATE . That date was pencilled in by the trial judge , even though it was “ DATE away ” . ORG considered that , given the importance attached by ORG and the courts to the link between confiscation orders and sentencing , a high degree of judicial scrutiny was required before finding exceptional circumstances to justify the imposition of a confiscation order outside the DATE time - limit . In the present case , there was no evidence of any enquiry from DATE ( when the second applicant was the first to plead guilty ) DATE into whether a space could be found for the confiscation hearing during DATE .

Furthermore , on DATE , the trial judge had acknowledged with “ admirable candour ” when finding that he had jurisdiction to hear the confiscation proceedings outside the DATE time - limit that “ no enquiry was made of the ( applicants ) as to the postponement ” when the decision to hold the confiscation hearing in DATE beginning DATE was finally confirmed on DATE . Neither had there been any analysis of any factors which might amount to exceptional circumstances . The trial judge had also “ candidly acknowledged more than once ” that there were no exceptional circumstances . ORG ultimately found that the failure to address the question as to whether the circumstances could properly be described as exceptional and to make a finding to that effect was fatal to the upholding of the confiscation orders . Though in principle confiscation orders should not be quashed for mere defects in procedure , if the statutory requirement of exceptional circumstances was to be more than a “ mere incantation ” , enquiry into the circumstances and the possibility and feasibility of a timely hearing were required .

On DATE the ORG certified that a point of law of general public importance was involved in the decisions .

On DATE ORG granted the prosecution leave to appeal against the decisions of ORG .

On DATE ORG reversed the decisions of ORG and ordered the latter to re - impose the confiscation orders in respect of both applicants .

ORG observed that the core problem before it was whether , as a matter of statutory construction , failure to comply with a statutory time - limit would have the effect of invalidating an act . The fact that ORG cast statutory requirements in imperative form without expressly specifying the consequences of a failure to comply had caused difficulty and had been the source of a great deal of litigation over DATE . A distinction had first evolved between mandatory and directory requirements ; where a requirement was mandatory , a failure to comply had the effect of invalidating the act in question but where a requirement was merely directory , a failure to comply did not invalidate the act . Over DATE , a further distinction had been made CARDINAL types of directory requirements : requirements of a purely regulatory character , where a failure to comply would never invalidate an act , and requirements where a failure to comply would not invalidate an act provided that there was substantial compliance . In ORG v. ORG [ DATE ] CARDINAL WLR CARDINAL , ORG , however , Lord PERSON had emphasised that it was within the ORG inherently discretionary jurisdiction to determine the nature of a particular statutory requirement and to examine the consequences of non - compliance before determining whether ORG had intended total invalidity . In the later case of ORG v. Commissioner of ORG [ DATE ] CARDINAL WLR CARDINAL , ORG followed and applied the dictum of Lord PERSON in GPE and GPE ( cited above ) . ORG also took into consideration a number of cases in which ORG had adopted the same approach , and parallel developments in the courts of GPE , GPE and GPE .

In the present case , ORG considered that the prime purpose behind the statutory provision for confiscation orders was the recovery of any financial benefit that an offender might have obtained from his criminal conduct . ORG rejected the ORG argument that , given the criminal law context , a strict approach to the construction of section CARDINALA of the ORG DATE should be adopted and instead applied a teleological approach . They noted that section CARDINAL(CARDINAL ) of the CJA DATE imposed a positive duty to proceed with confiscation proceedings and that the time limits under section CARDINALA were linked to the date of conviction rather than sentence . This was considered to be evidence that ORG ’s intention was the early disgorgement of an offender ’s criminal gains . Though ORG had envisaged that courts would make confiscation orders before sentencing , unless they exercised their postponement power under LAW ) , it was of some significance that ORG considered it more important that a confiscation order should be made than that it should be made before the defendant was sentenced . Though no common law power to adjourn existed , ORG could not have intended to disable a court from making a confiscation order after sentence merely because the time - limits were not strictly adhered to .

In the present case , ORG had postponed its final decision on confiscation orders in good faith . The prejudice to the applicants was not significant and was outweighed by the countervailing public interest in not allowing convicted offenders to escape confiscation for what were no more than bona fide errors in the judicial process . In any event , there would always be the safeguard of judicial review should there be an apparent abuse of process .

In DATE ORG re - imposed the confiscation orders and sentences of imprisonment in default on the applicants .


CASE OF BENET CZECH, SPOL. S R.O. v. THE CZECH REPUBLIC

Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva

The applicant , PERSON , spol . s r.o . , is a limited liability company incorporated under NORP law with its registered seat in GPE .

NORP In DATE criminal proceedings were instituted against PERSON , who was manager of the applicant company until DATE and its sole shareholder until DATE , on suspicion of having committed tax evasion ( zkrácení daně , poplatku a jiné povinné platby ) . According to the Government the damage caused to the ORG exceeded CZK CARDINAL,CARDINAL,CARDINAL ( EUR CARDINAL,CARDINAL,CARDINAL ) . Mr. PERSON was replaced as manager and shareholder by Mrs. B.

On DATE the prosecuting authorities seized CZK CARDINAL,CARDINAL,CARDINAL.CARDINAL ( EUR CARDINAL ) and DATE ( ORG CARDINAL ) deposited in the applicant company 's bank accounts on the suspicion that these assets represented the profits of PERSON criminal activities .

Mr B. was prosecuted for acts which are not related to the business pursued by the applicant company . On DATE Mr B. was acquitted by ORG ( městský soud ) , and on DATE ORG ( vrchní soud ) upheld the judgment . During the investigation the prosecuting authorities , inter alia , collected over CARDINAL pages of documentary evidence , interviewed CARDINAL witnesses , including homeless persons with unknown whereabouts whose names the accused had allegedly used in sham transactions to evade customs and other duties , and requested legal assistance from the competent authorities of CARDINAL countries .

On DATE the applicant company requested that the seizure be lifted . Its request was dismissed by ORG ( vrchní státní zástupce ) on DATE . In his view , the investigation so far confirmed that there was a reasonable suspicion that the assets represented the profits of PERSON alleged criminal activities .

The applicant company appealed to ORG which dismissed its complaint on DATE .

On DATE the applicant company lodged a constitutional appeal ( ústavní stížnost ) in which it alleged that the reasoning of ORG decision was insufficient . It further complained of an excessive length of the seizure of its assets .

NORP On DATE ORG ( PERSON ) declared the applicant company 's constitutional appeal inadmissible for being manifestly ill - founded . It held that unjustified prolonged seizure of assets could in principle constitute a disproportionate interference with property rights . Nevertheless it did not find that the seizure which had lasted DATE to that date was , , disproportionate . It found the challenged decisions to be neither arbitrary nor in any other way unconstitutional . The decision was served on the applicant company 's lawyer on DATE .

On DATE ORG dismissed a further request of the applicant company to lift the seizure , at least in part . ORG ( vrchní soud ) upheld the decision on DATE . On DATE ORG , however , quashed that decision finding a violation of the applicant company 's right to property . The court held that the length of the seizure , over DATE , was already unreasonable , which thus disrupted the fair balance between the general interest of fighting serious crime and the protection of the rights of the applicant company . Consequently on DATE ORG lifted fully the seizure of the applicant company 's bank accounts .

Pursuant to Article CARDINAL , prosecuting authorities shall assess on their own preliminary issues arising in course of proceedings ; should a final and binding decision on such an issue be already adopted by a court or another ORG authority , prosecuting authorities shall be bound by it unless it concerns an issue of guilt of accused .

Article CARDINAL provides for rights of a concerned person . According to it anyone whose property was seized , or ought to be seized pursuant to a motion , must be provided with an opportunity to comment on the given case , may attend a hearing , raise own motions , consult the case file within the meaning of DATE , and file appeals provided for by this law .

Article DATE provides for a seizure of financial instruments deposited on a bank account . Under paragraph CARDINAL , if the facts indicate that the financial instruments on a bank account are destined for the commission of a crime , or have already been used for such purposes , or represent the profit from criminal activities , a president of a chamber and a prosecutor , or the police authority at the pre - trial stage of criminal proceedings , are empowered to seize them .

Pursuant to LAW , the ORG authority listed in paragraph ( CARDINAL ) lifts or reduces the seizure if such a measure is no more necessary , or it is not necessary to maintain it at the given amount .

Under LAW ) the owner of a bank account , whose assets are seized , has the right to request at any time that the seizure be lifted or reduced . A decision on such a request must be given without delay . If the request is dismissed , the owner of the bank account can lodge a new request that does not contain new reasons no sooner than DATE after the dismissal became final .

Article CARDINAL ) provides that decisions adopted pursuant to paragraphs ( CARDINAL ) , ( CARDINAL ) and ( CARDINAL ) may be appealed by a complaint .


Violation of Art. 8;Not necessary to examine Art. 14;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses award

The applicant is a practising homosexual . On DATE , at TIME , police officers conducted a search under warrant of the applicant 's home . As a result of the search , various items were seized including photographs and a list of videotapes . The applicant was arrested at TIME and taken to the local police station . A further search of the applicant 's house was conducted DATE and further items , including videotapes , were seized .

The applicant was interviewed by the police on DATE . During the interview the applicant admitted that some of the videotapes found would contain footage of the applicant and CARDINAL other adult men , engaging in acts , mainly of oral sex , in the applicant 's home . On DATE the applicant was charged with gross indecency between men contrary to LAW “ gross indecency ” ) . The charge related to the commission of the sexual acts depicted in CARDINAL of the videotapes , which consisted of oral sex and mutual masturbation . It did not relate to the making or distribution of the tapes themselves .

On DATE the applicant appeared before a magistrates ' court . The principal evidence adduced by the ORG consisted of a single specimen video containing footage of the applicant and CARDINAL other men engaging in acts of oral sex and mutual masturbation . The acts which formed the basis of the charge involved consenting adult men , took place in the applicant 's home and were not visible to anyone other than the participants . There was no element of sado - masochism or physical harm involved in the activities depicted on the videotape . The applicant was convicted of the offence of gross indecency . On DATE the applicant was sentenced and conditionally discharged for DATE . An order was made for the confiscation and destruction of the seized material .

The applicant was subsequently advised by counsel that an appeal against conviction would enjoy no prospect of success since the provisions of the relevant legislation were clear and mandatory . The applicant did not appeal against the conviction .

Section CARDINAL of LAW DATE provides :

“ It is an offence for a man to commit an act of gross indecency with another man , whether in public or private , or to be a party to the commission by a man of an act of gross indecency with another man , or to procure the commission by a man of an act of gross indecency with another man . ”

By CARDINAL of , and paragraph CARDINAL of the Second Schedule to , LAW DATE , the offence of gross indecency between men is punishable on indictment by DATE imprisonment if committed by a man of , or over the age of , DATE with a man under the age of DATE , and otherwise by a maximum of DATE imprisonment .

NORP If , as in the present case , the offence is tried summarily by magistrates , the maximum penalty is DATE imprisonment and/or a fine of MONEY ( Magistrates ' Courts Act DATE , sections CARDINAL and DATE and Schedule CARDINAL , paragraph CARDINAL(b ) ) .

There is no statutory definition of “ gross indecency ” . However , in its DATE report , ORG ( Wolfenden Committee ) noted :

“ ORG . NORP ' PERSON indecency ' is not defined by statute . It appears , however , to cover any act involving sexual indecency between CARDINAL male persons . If CARDINAL male persons acting in concert behave in an indecent manner the offence is committed even though there has been no actual physical contact ( NORP v. PERSON CARDINAL ORG R CARDINAL ) .

From the police reports we have seen and the other evidence we have received it appears that the offence usually takes CARDINAL of CARDINAL forms ; either there is mutual masturbation ; or there is some form of intercrural contact ; or oral - genital contact ( with or without emission ) takes place . Occasionally the offence may take a more recondite form ; techniques in heterosexual relations vary considerably , and the same is true of homosexual relations . ”

LAW DATE introduced a qualification to the legislation regulating male homosexual conduct . It provided that homosexual acts in private between consenting adult men were no longer an offence . Homosexual acts are defined as buggery with another man or gross indecency between men ( section CARDINAL(CARDINAL ) ) . By virtue of section CARDINAL(CARDINAL ) , an act is not done in private if , inter alia , CARDINAL persons take part or are present .

Section CARDINAL of LAW DATE , in its relevant part , provides :

“ ( CARDINAL ) Notwithstanding any statutory or common law provision , but subject to the provisos of the next following section , a homosexual act in private shall not be an offence provided that the parties consent thereto and have attained DATE .

( CARDINAL ) An act which would otherwise be treated for the purposes of this LAW as being done in private shall not be so treated if done –

( a ) when CARDINAL persons take part or are present ; or

( b ) in a lavatory to which the public have or are permitted to have access , whether on payment or otherwise . ...

( CARDINAL ) For the purposes of this section a man shall be treated as doing a homosexual act if , and only if , he commits buggery with another man or commits an act of gross indecency with another man or is a party to the commission by a man of such an act . ”

There are no provisions under domestic law for the regulation of private homosexual acts between consenting adult women .

Likewise , there are no provisions under domestic legislation affecting heterosexual behaviour which correspond to LAW . Thus , acts of oral sex and mutual masturbation CARDINAL consenting adult heterosexuals ( as long as there are no homosexual acts between any CARDINAL males ) do not constitute an offence .


Violation of Art. 5-1;No violation of Art. 5-4;No violation of Art. 5-5;Non-pecuniary damage - finding of violation sufficient;Costs and expenses award - Convention proceedings

Mr PERSON , a GPE national , currently resides at PERSON in the GPE .

ORG On DATE the PERSON of Emmen ordered PERSON emergency confinement in a psychiatric hospital pursuant to section DATE ( b ) of LAW ( PERSON , see paragraph CARDINAL below ) . His decision was based on a medical report drawn up DATE by a psychiatrist , PERSON , according to which there were serious grounds for believing that the applicant suffered from a mental disorder representing an immediate danger to himself , to others and to public order . PERSON had already threatened members of his family and attacked a neighbour in her house .

ORG On DATE the Crown Prosecutor ( PERSON ) requested the President of ORG ( Arrondissementsrechtbank ) of PERSON to extend the applicant ’s confinement . In addition to the file attached to this application , the President received a police report dated DATE containing the statements of various witnesses and of PERSON wife , and a memorandum , of the same date , setting out the opinion of the applicant ’s doctor , PERSON

ORG On DATE , in the presence of Mr Jongeneelen , PERSON " confidential counsellor " ( patientenvertrouwenspersoon ) , the ORG President interviewed the applicant together with a psychiatrist , PERSON then consulted CARDINAL other persons by telephone - PERSON , PERSON wife and another doctor , PERSON made a brief note of their statements . Again by telephone , he gave a summary of the resulting information to PERSON .

In a letter of CARDINAL DATE , Mr Jongeneelen told the applicant ’s lawyer that this conversation , which had lasted TIME , had taken place at his request and had given him ( Mr Jongeneelen ) an opportunity to put forward his views ; DATE after the conversation , the President had communicated the whole file to him .

ORG On DATE the President ordered the continuation of the applicant ’s confinement pursuant to sections CARDINAL ( i ) and DATE ( j ) of LAW . Referring to the medical report by PERSON ( see paragraph PERSON above ) and the statements of PERSON , Dr. PERSON and the CARDINAL persons whom he had questioned by telephone ( see paragraph QUANTITY above ) , he considered that , because of his mental illness , the applicant was an immediate danger to himself , to others and to public order . The President added that it was clear from the statements which he himself had obtained and those contained in the police report of CARDINAL DATE that PERSON had already caused considerable disturbance to his neighbours . It was therefore to be feared that , as he was unaware of the effect of his actions on others , he would continue his unacceptable behaviour if he were to return home .

Mr PERSON left the hospital on DATE . On DATE the President of ORG sent to the applicant ’s lawyer , at the latter ’s request , various documents from the file , including the note that he had made after interviewing PERSON and hearing the views of the persons whom he had questioned by telephone . He explained that circumstances relating to the organisation of the court made it impossible to arrange for a registrar to be present in every case of emergency confinement . There were CARDINAL large psychiatric hospitals within the court ’s jurisdiction and it was a small court .

ORG On DATE the applicant filed an appeal on points of law with ORG ( PERSON ) against the order of CARDINAL DATE . He complained that the President of ORG had not specified sufficiently the nature of the danger which his mental illness represented for himself and for public order , that the President had held a hearing without a registrar ’s being present to draw up a record and , finally , that , before making the order , the President had failed to communicate to him the text of the statements of the persons whom he had telephoned , thereby depriving the applicant of any opportunity to react thereto .

ORG In his submissions of CARDINAL DATE , the Attorney General at ORG ( ORG ) expressed the view that the second of these grounds ( and only the second ) was well - founded . However , on DATE ORG declared the appeal inadmissible , finding that Mr PERSON no longer had any interest in having the contested order quashed since the maximum period for an emergency confinement had already expired .

ORG In the GPE the confinement of mentally ill persons is governed by LAW of DATE on ORG , commonly known as LAW ( PERSON , " LAW " ) .

Sections CARDINAL ( b ) to CARDINAL ( j ) make provision for the emergency committal procedure which was followed in the present case .

Where there are serious grounds for believing that a person represents an immediate danger to himself , to others or to public order on account of mental illness , the burgomaster of the municipality in which he resides is empowered to order his compulsory committal ( inbewaringstelling ) to a psychiatric hospital ( section CARDINAL ( b ) ) .

In so doing , the PERSON is required first to seek the opinion of a psychiatrist or , if that proves impossible , of another medical practitioner ( section CARDINAL ( c ) ) . As soon as he has ordered a confinement , he must inform the Crown Prosecutor and transmit to him the medical certificate on which he based his decision ( section CARDINAL ( e ) ) . ORG has then , in his turn , to forward the certificate to the President of ORG , not later than DATE , requesting , where appropriate , the continuation of the confinement ( section CARDINAL ( i ) ) . The President must give his decision within DATE . An order to continue the confinement is valid for DATE , but the President may renew it for a second period of the same length if , before the expiry of the first period , an application for judicial authorisation for confinement ( rechterlijke machtiging , sections CARDINAL and CARDINAL ) is made ( section CARDINAL ( j ) ) .

ORG By virtue of LAW I ( Reglement I ) made in pursuance of ORG ( Wet op de Rechterlijke Organisatie ) , " hearings and examinations " ( " terechtzittingen en verhoren " ) must be conducted in the presence of a registrar whose duty it is to draw up a record of the proceedings .

ORG has held that , in view of the importance of having up - to - date information as a basis for a confinement decision , the judge may be justified in using information obtained by telephone . He must , however , communicate any such information to the person concerned or his counsel in order to enable them to comment on it . ORG has quashed a number of decisions on account of a failure to comply with this requirement ( see , for example , the judgments of DATE , CARDINAL May and DATE , PERSON ( GPE ) , ORG . CARDINAL , CARDINAL and CARDINAL ) .

It appears from a judgment of DATE ( GPE DATE , no . CARDINAL ) that the case - law on the subject may be summarised as follows :

if a judge obtains information by telephone , he must ensure that it is taken down in writing ;

( a ) in principle , the judge must not make use of such information unless he has advised the person concerned or his counsel of its substance and has given them sufficient opportunity to comment on it ;

( b ) this may also be done by telephone ;

the decision or the documents of the court proceedings must show that the requirements referred to under CARDINAL ( a ) have been met ;

only under special circumstances may the judge decide not to observe the rule referred to under CARDINAL ( a ) ;

in such cases the reasons must be stated so as to enable ORG to assess whether rule CARDINAL has been complied with ;

if a statement taken by telephone contains information concerning points that are essential for the decision and the judge has not unequivocally discounted that statement in his decision , it must be assumed that the judge made use of that information when reaching his decision .

ORG On the question of the presence and the role of the registrar during hearings held pursuant to LAW , ORG has stated as follows :

" Having regard to the serious nature of decisions taken under LAW , to the requirements which have accordingly to be complied with in respect of the statement of the reasons on which they are based and to the importance of its being possible to review , in cassation proceedings , their conformity with those requirements , a record , signed by the registrar , must be made of any interviews effected and any questioning at the hearing . A copy of the record must be given to the person concerned if he so requests . " ( judgment of CARDINAL DATE , GPE DATE , no . CARDINAL )

In a judgment of DATE ( NJ DATE , no . CARDINAL ) , ORG held that , if these conditions were not complied with , the decision ordering the confinement was to be set aside , even though the person concerned had not indicated what consequences the failure to observe these requirements actually had in relation to him .


András Sajó;Françoise Tulkens;Guido Raimondi;Kristina Pardalos;Nona Tsotsoria

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

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

On DATE criminal proceedings were instituted against the applicant and other defendants on charges of smuggling persons . On DATE the NORP ORG preferred a bill of indictment . Hearings took place on DATE , DATE and DATE , DATE and DATE .

On DATE the NORP ORG convicted the applicant of complicity in CARDINAL counts of smuggling persons and CARDINAL counts of violating personal liberty . ORG appreciated the length of the time which had elapsed from the commission of the crimes as a significant mitigating factor . Because of this , it sentenced the applicant to only DATE imprisonment , suspended for DATE , and to the confiscation of property in the amount of MONEY .

On DATE the ORG upheld this judgment . Also appreciating the protraction of the proceedings , ORG reduced the probationary DATE .