Violation of Art. 3 (substantive aspect);No violation of Art. 3 (substantive aspect);Violation of Art. 13;Violation of Art. 3 (substantive aspect);Violation of Art. 3 (procedural aspect);No violation of Art. 6-1;Remainder inadmissible;Non-pecuniary damage - award

Anatoly Kovler;Elisabeth Steiner;George Nicolaou;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska

The applicant was born in DATE and is currently serving a term of imprisonment in correctional colony IK-CARDINAL , GPE .

On DATE the applicant was arrested on suspicion of murder .

On DATE ORG of the Leningrad Region decided to remand the applicant in custody .

On DATE the applicant absconded , and on DATE he was apprehended by the police .

On DATE a deputy Prosecutor General of GPE approved the bill of indictment against the applicant , and on DATE the case was sent to ORG for trial .

On DATE ORG scheduled the preliminary hearing for DATE . It was subsequently adjourned until DATE following requests filed by the applicant and some of his codefendants who had not received a copy of the decision of DATE .

On DATE the criminal case was returned to the public prosecutor for rectification of the bill of indictment .

On DATE ORG of GPE quashed the above - mentioned decision on appeal , and the case was resubmitted to ORG .

As a result of the preliminary hearing held on DATE , on DATE ORG fixed the opening date of the trial for DATE . It was subsequently adjourned until DATE .

On DATE the applicant requested the court to let PERSON represent him . However , on DATE the court dismissed his request in view of the fact that PERSON had no law degree .

On DATE the court began the examination of the evidence . However , owing to the non - attendance of certain witnesses , the applicant ’s hospitalisation and the non - attendance of an interpreter , the hearing was adjourned until an unspecified date .

On DATE the applicant requested leave for A. to represent him , but his request was dismissed because A. was the brother of CARDINAL of the witnesses . Legal - aid counsel was appointed to represent the applicant .

Following the submission of the pleadings the proceedings were adjourned until DATE to permit the parties to prepare their comments as to the substance and the wording of the questions to be put to the jury .

On DATE ORG , following a jury trial , convicted the applicant of aggravated murder , theft , robbery and escape and sentenced him to life imprisonment . When determining the applicant ’s sentence the court refused to take into account the time that the applicant had allegedly overspent in prison while serving his sentence in an unrelated criminal case .

During the trial the applicant requested the court to obtain the attendance of a witness on his behalf . However , the court refused his request in view of the fact that the testimony which the witness in question could have given was irr

NORP However , the trial court granted the prosecutor ’s request to read out the testimony given by one of the applicant ’s co - defendants at the stage of the pre - trial investigation .

Later , the presiding judge several times drew the jury ’s attention to the fact that the information provided during the trial concerning acts other than those with which the applicant was charged , including the statement by the applicant ’s co - defendant , was of no relevance to the applicant ’s case and was not to be taken into consideration when answering the questions put to the jury .

The applicant received a copy of the trial record with a DATE delay .

On CARDINAL DATE ORG upheld the judgment on appeal . The applicant was represented by CARDINAL lawyers of his own choosing .

On DATE a copy of the appeal decision was served on the applicant .

On DATE the ORG of ORG of GPE quashed the appeal decision of DATE by way of supervisory review and remitted the case for a new appeal hearing . The reason for the quashing was the fact that the applicant had been denied the opportunity to study the verdict .

On DATE ORG upheld the judgment of DATE on appeal .

From DATE to DATE and from DATE to CARDINAL DATE the applicant was held in detention facility IZ-CARDINAL/CARDINAL in GPE . He was held in cells CARDINAL . CARDINAL , CARDINAL , DATE , DATE , CARDINAL , CARDINAL and CARDINAL before his conviction and subsequently in cells CARDINAL . CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL and CARDINAL , designed for inmates sentenced to life imprisonment . All the cells measured QUANTITY .

Each cell was equipped with CARDINAL sleeping places and accommodated a maximum of CARDINAL inmates at any given time . The applicant had always had an individual bed and had been provided with the appropriate bedding ( a mattress , a pillow , a blanket , CARDINAL sheets and a pillowcase ) and with tableware .

The cell windows , which measured QUANTITY , were not covered with metal screens and therefore allowed sufficient daylight to enter so that the inmates could read and write . The cells were equipped with CARDINAL to CARDINALwatt filament light bulbs which were on from TIME At night the cells were lit by CARDINAL security lights .

All the cells were ventilated by means of a ventilation shaft . Natural ventilation via the windows was also available . The cells were equipped with a heating system providing a suitable temperature which was in line with health and safety standards . The average temperature during DATE was maintained at QUANTITY and during DATE at CARDINAL degrees Celsius .

The cells were equipped with toilets separated from the main area by QUANTITY .

The cells were equipped with drinking - water tanks . The inmates were also allowed to use electric water heaters .

The cells were also equipped with dining tables and benches corresponding to the number of detainees , as well as shelves and bedside tables for storage of personal items and foodstuffs .

The applicant could take a shower once DATE for TIME .

He was given CARDINAL hot meals a day on the basis of the established legal norms . The quality of the food was monitored on a regular basis by the medical staff of the detention facility .

The applicant was allowed a DATE TIME outside walk in the facility ’s exercise yards , during which he could perform physical exercises . The exercise yards , measuring from QUANTITY , were equipped with benches , waste bins and sheds providing shelter from rain and snow . Sports equipment was provided to the detainees at their request .

The authorities ensured regular disinfection and pest control in the detention facility .

The applicant was provided with comprehensive medical assistance . The medical service of the facility was fully staffed with qualified personnel , medicines and medical equipment . On his arrival at the facility the applicant was examined by medical specialists ; he made no healthrelated complaints and denied having tuberculosis , viral hepatitis , venereal or surgical diseases . Subsequently , when he underwent a forensic psychiatric examination , it was revealed that the applicant had viral hepatitis LOC Throughout his stay in detention facility IZ-CARDINAL/CARDINAL in GPE the applicant did not show clinical signs of the abovementioned disease and therefore did not require any specialised treatment .

NORP In support of their observations the Government provided several certificates issued by the governor of IZ-CARDINAL/CARDINAL on DATE and CARDINAL DATE , the results of a laboratory examination of the microclimate of cells CARDINAL . CARDINAL , CARDINAL and CARDINAL ( dated DATE , DATE and DATE respectively ) , statements by wardens ( not dated ) , the schedules for disinfection and pest control in the facility ’s premises and a number of certificates concerning the food rations . The ORG further provided copies of extracts from the registration log showing the number of detainees on DATE and in certain cells DATE , DATE , DATE and DATE and DATE . These extracts show that on DATE and DATE and on DATE , cell no . CARDINAL accommodated CARDINAL inmates ; on CARDINAL DATE cell no . CARDINAL accommodated CARDINAL inmates ; on DATE and DATE cell no . CARDINAL accommodated CARDINAL inmates ; and on DATE and CARDINAL DATE and on DATE cell no . CARDINAL also accommodated CARDINAL inmates .

Cells nos . CARDINAL , DATE , CARDINAL , CARDINAL and CARDINAL were equipped with CARDINAL sleeping places ( CARDINAL - tier bunks ) . They housed from CARDINAL to CARDINAL inmates at any given time . Cell no . CARDINAL housed CARDINAL inmates including the applicant and cell no . CARDINAL housed CARDINAL inmates including the applicant .

After his conviction on DATE the applicant was held on his own in cells CARDINAL . CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL and CARDINAL , which were reserved for inmates sentenced to life imprisonment at first instance pending the examination of their case on appeal ( wing CARDINAL with restricted access ) . Until the repairs in DATE these cells had not been equipped with bunk beds but with CARDINAL concrete benches in each cell .

The windows in cells CARDINAL . CARDINAL , CARDINAL , DATE , DATE , CARDINAL , CARDINAL and CARDINAL were equipped with a double grid ( one on the outside and CARDINAL on the inside ) . In cells CARDINAL . CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL and CARDINAL the windows were equipped with a triple grid ( on the outside and the inside of the cell , as well as inside the window pane ) . In addition to the triple grid , densely spaced iron netting was fitted in front of the windows , which allowed very little daylight to enter . In cell no . CARDINAL the window glass had been replaced with a layer of veneer , which also prevented daylight from entering the cell . The window in cell no . CARDINAL , in which the applicant had been held for DATE in DATE , faced a wall , in addition to the above - mentioned arrangements .

Until DATE the artificial lighting in cells CARDINAL . CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL and CARDINAL consisted of CARDINAL CARDINAL-watt filament light bulb per cell . The bulb was covered by a dust - laden lampshade above the entrance door .

Air shafts existed in cells CARDINAL . CARDINAL , CARDINAL , DATE , DATE , CARDINAL , CARDINAL and CARDINAL , but did not function as they were clogged with waste . Cells nos . CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL and CARDINAL did not have any air shafts . The heating system did not function in any of the cells where the applicant was detained until the repairs carried out in the facility in DATE . The applicant had to sleep with his clothes on to keep warm in the wintertime .

There were no hot water taps or drinking - water tanks in the cells .

The lavatory was not separated from the living area and did not offer any privacy .

No bedding was provided to the applicant until DATE ( until then he had used his own bedding ) . The bedding provided by the facility was very worn , torn and dirty . Inmates had to dry their laundry indoors , creating excessive humidity in the cells .

The shower was available once DATE . At times it was only available once DATE , DATE or even DATE .

NORP The food was of extremely poor quality and in scarce supply .

None of the cells was equipped with a dining table or benches ( because of the limited space ) . The inmates ate their food sitting on their bunks holding the plate .

The cells swarmed with spiders , worms , flies , cockroaches , bedbugs and mice . The applicant never witnessed any disinfection or pest control .

Outside exercise , which was supposedly available DATE , was skipped on shower days and occasionally on DATE for no apparent reason . The exercise yards were too small and did not offer sufficient room for any exercise ( an average of CARDINAL detainees being taken outside simultaneously ) .

The inmates were not provided with adequate medical assistance .

The applicant ’s complaints about the conditions of his detention had availed nothing . Neither he nor the witnesses who could confirm his allegations were ever questioned on the circumstances of which he complained .

NORP In support of his position the applicant made reference to the applications made to ORG by PERSON , T. and PERSON , in which they also raised an issue concerning compliance of the conditions of their detention in facility IZ-CARDINAL/CARDINAL during the relevant period with the requirements of LAW .

B. , in particular , ( see PERSON v. GPE , no . CARDINAL/CARDINAL , DATE ) provided the following account of the conditions of his detention in wing CARDINAL of facility IZ-CARDINAL/CARDINAL of GPE :

“ CARDINAL . On DATE the applicant was placed in solitary cell no . CARDINAL in wing CARDINAL with restricted access . The wing was designed for the detention of inmates sentenced to life imprisonment .

On DATE the applicant was transferred to solitary cell no . CARDINAL in wing CARDINAL with restricted access . According to the applicant , the cell was the equivalent of a disciplinary cell . ... The cell was in the basement where there was no central heating , and the DATE temperature there was CARDINAL - CARDINALoC.

The applicant submitted written statements by Mr DATE and Mr GPE

Mr DATE , who had been sentenced to life imprisonment , was kept in cells nos . CARDINAL , CARDINAL , CARDINAL , CARDINAL and CARDINAL of wing CARDINAL of the remand prison on various occasions DATE and DATE . In his submission , wing CARDINAL was reserved for inmates sentenced to life imprisonment at first instance pending the examination of their cases on appeal . The conditions of detention in all the cells were nearly identical . There were no chairs or desks in the cells . The beds were made of concrete . The cells were in a deplorable state . The humidity was high . There was no hot water or heating . The temperature in the cells in DATE was as low as outside . There was no mandatory ventilation . Lavatory pans were not separated from the rest of the cells . All inmates in wing CARDINAL were kept in solitary confinement . ...

Mr GPE was sentenced to life imprisonment . He was kept in cell no . CARDINAL of wing CARDINAL of the remand prison . In his submission , all the cells in the wing were nearly identical . There was no furniture in the cells . The temperature in the cells in DATE was TIME There was no hot water . The cells were very humid so that the walls were covered with mould . The lavatory pans were not secluded . The food was of poor quality . ... ”

Z. provided the following account of the conditions in wing CARDINAL of facility IZ-CARDINAL/CARDINAL in GPE :

“ From DATE to DATE and from DATE to the present I have been detained in wing CARDINAL of GPE IZ-CARDINAL/CARDINAL . From DATE I was held in cell no . CARDINAL , and [ the applicant ] was held in cell no . CARDINAL . The conditions in those cells were horrible . The walls were CARDINAL - destroyed . The ceiling was crumbling . The floor was made of concrete . The heating did not function ; the cells were very cold . There were no hot water taps . Ventilation was non - existent . The cells were very dim since filament bulbs over QUANTITY were prohibited ; the only lamp in the cell was fitted with a CARDINAL-watt filament bulb ... The cells were overrun by rodents ( rats , mice ) .

In DATE I was transferred to cell no . CARDINAL , and [ the applicant ] was moved to cell no . CARDINAL . The conditions in those cells were identical to the conditions described above .

On DATE I was transferred to cell no . CARDINAL , and in DATE I learned that [ the applicant ] was being held in cell no . CARDINAL . The floor and the ceiling in these cells are painted , but they are crumbling ; the concrete floor is covered with a piece of linoleum . The remaining conditions are identical to those described above . ... ”

According to the applicant , on DATE in the afternoon the door of the cell where he was being held ( cell no . CARDINAL at the time ) burst open and CARDINAL prison officers entered and ordered the applicant and his inmates to leave the cell . The purpose of the operation was to make the detainees abandon a collective hunger strike . As soon as the detainees left the cell they were attacked by the “ Tayfun ” special - purpose unit ( отдел специального назначения “ LOC ) . The officers of the unit wore balaclavas and used rubber truncheons to hit the detainees . The applicant saw that inmates from other cells were also being beaten up . As a result of the blows he received the applicant lost consciousness and regained it only when locked back in the cell .

On DATE the applicant was placed in the punishment cell for DATE for alleged disobedience . Since he could not walk after the beatings he was helped by CARDINAL wardens .

According to the ORG , a rubber truncheon was used against the applicant for the purpose of repelling an attack by him on a prison officer . They submitted a report on the use of a rubber truncheon against the applicant dated DATE , accompanied by a medical certificate drawn up following the examination of the applicant after the incident . The certificate recorded multiple abrasions in the area of the applicant ’s back and a haematoma in the region of his right knee .

On DATE and CARDINAL DATE the applicant complained about the beatings to the public prosecutor ’s office .

In its reply dated DATE the GPE public prosecutor ’s office informed the applicant as follows :

“ In the course of the inquiry [ conducted into the applicant ’s allegations of illtreatment ] it was established that on DATE the prison officers of SIZO-CARDINAL had been carrying out a technical inspection of cell no . CARDINAL where [ the applicant ] was held at the material time . In the course of the inspection [ the applicant ] refused to comply with the lawful orders given by the prison officers . In order to put a stop to [ the applicant ’s ] unlawful actions physical force and special means had been used against him in accordance with section CARDINAL of LAW on the detention of persons suspected of and charged with criminal offences .

Taking into account the foregoing , at the present time there are no grounds for the prosecutor ’s office to intervene . ”

Further , on DATE an investigator from the LOC investigating department of the GPE public prosecutor ’s office refused to institute criminal proceedings concerning the use of special means against the applicant . The decision read as follows :

“ In the course of the inquiry it was established that on DATE on the territory of IZ-CARDINAL/CARDINAL a general search was conducted by prison officers of [ the above facility ] aimed at finding and seizing prohibited items . During the search certain detainees ... broke the rules by failing to abide by the lawful orders of the [ prison officers ] and insulting [ them ] , as a result of which physical force and special means were used against them .

Therefore , physical force and special means were lawfully applied to [ the applicant ] since he had not abided by the lawful orders of the prison officers , a fact confirmed by the medical certificate , the report on the use of a rubber truncheon and the submissions by [ CARDINAL officers involved in the incident ] ... ”

On DATE the acting head of the LOC investigating department annulled the above decision , finding as follows :

“ In the course of the study of the material in the case file it was established that the inquiry had been incomplete .

Therefore the decision [ of DATE ] was made prematurely and must be annulled .

In the course of the additional inquiry it is necessary to question [ the applicant ] , to obtain and examine the [ applicant ’s ] medical documents , to question the head of the “ NORP ” special - purpose unit , and to take other measures required in order to reach a decision . ”

The applicant has yet to be informed of the outcome of the additional inquiry . No information was provided by the Government in that regard .

According to the applicant , he was beaten up by prison officers because of his complaints about the conditions of his detention .

DATE . According to the Government , physical force consisting in bending the applicant ’s arm behind his back ( загиб руки за спину ) was applied to the applicant for the purpose of repelling an attack by him on a prison officer . They submitted a report on the use of physical force against the applicant dated DATE , accompanied by a medical certificate concerning the examination of the applicant after the incident . The certificate indicated that no visible injuries had been detected on the applicant ’s body . The Government further submitted statements by CARDINAL prison officers , according to which in the course of the search conducted in cell no . CARDINAL , where the applicant was detained at the material time , the latter had behaved defiantly , had threatened the prison officers , had not responded to warnings and had prevented the officers from carrying out the search . After a mobile phone had been found in the cell the applicant had pounced on CARDINAL of the prison officers and the latter had had to use physical force against him . The applicant had displayed active physical resistance and had tried to administer blows and kicks , following which he had been forced to the floor . Since he continued to resist , a painful hold ( болевой прием самбо ) had been applied to him and he had been put back in the cell .

The applicant complained to the public prosecutor ’s office about the beatings .

“ On DATE prison officers of SIZO-CARDINAL conducted a search in cell no . CARDINAL where you were detained at the material time . During the search you displayed resistance to the lawful orders of the prison officers . In order to put a stop to your unlawful actions physical force was applied in accordance with section CARDINAL of LAW on the detention of persons suspected of and charged with criminal offences . ”

Neither party provided any other documents pertaining to the inquiry into the above incident .

Section CARDINAL of LAW DATE on the detention of persons suspected of and charged with criminal offences ( ORG ) provides that detainees should be given free food sufficient to maintain them in good health in accordance with the standards established by the Government of GPE . Section CARDINAL provides that detainees should be kept in conditions which satisfy certain sanitary and hygienic requirements . They should be provided with an individual sleeping place and given bedding , tableware and toiletries . Each inmate should have QUANTITY of personal space in his or her cell .

Section CARDINAL of ORG provides that physical force , special means or weapons may be used against detainees for the purpose of preventing an offence and overcoming resistance to the lawful orders of officials in cases where non - violent means are not sufficient to put a stop to the offence or make a detainee comply with a lawful order .

Section CARDINAL of ORG provides that special means ( including rubber truncheons ) may be used against detainees in the following cases :

( a ) to put a stop to assaults on officials and other persons ;

( b ) to quell mass disorder or collective breaches of public order ;

( c ) to prevent unlawful actions of detainees resisting lawful orders ;

( d ) to free hostages , captured buildings , LOC , structures or transport facilities ;

( e ) to prevent attempts to escape from custody ;

( f ) to prevent attempts to cause harm to others ; and

( g ) to prevent attempts to cause self - harm .

Abuse of office associated with the use of violence or entailing serious consequences carries a punishment of up to CARDINAL years’ imprisonment ( Article QUANTITY of LAW ) .

DATE . The Code of Criminal Procedure of GPE ( Law no . CARDINAL of DATE , in force from DATE ) states that a criminal investigation may be initiated by an investigator or prosecutor on a complaint by an individual ( Articles CARDINAL and CARDINAL ) . Within DATE of receipt of such a complaint , the investigator or prosecutor must carry out a preliminary inquiry and make one of the following decisions : ( CARDINAL ) to open criminal proceedings if there are reasons to believe that a crime has been committed ; ( CARDINAL ) to decline to open criminal proceedings if the inquiry reveals that there are no grounds to initiate a criminal investigation ; or ( CARDINAL ) to refer the complaint to the competent investigative authority . The complainant must be notified of any decision taken . The decision not to open criminal proceedings is amenable to appeal to a higher prosecutor or a court of general jurisdiction ( Articles CARDINAL , CARDINAL and CARDINAL ) .


The first applicant , PERSON , and the second applicant , PERSON , who are son and father , were born in DATE and DATE respectively . Their application was introduced before the ORG by PERSON , PERSON , ORG , solicitors practising in Barking , GPE .

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

On DATE , the local authority , ORG , received a report from a neighbour of the applicants that the first applicant had told the neighbour ’s children that he was being buggered by his father , the second applicant . The neighbour also stated that the first applicant , aged DATE , was regularly called in from play to have a sleep in the afternoon and that the second applicant had been seen at a bedroom window holding the first applicant whilst naked .

Social services and the police attended the applicants’ home at TIME on DATE , where they found that PERSON had been in bed together with both his parents immediately prior to their arrival . The first applicant ’s grandmother arrived at the house and was noted by the social worker as expressing surprise and concern that the family were all in bed together in the afternoon . Both parents agreed that the first applicant should undergo a medical examination which was conducted by PERSON at TIME on DATE . PERSON was a general practitioner , who had been appointed forensic medical examiner in DATE by ORG and had some CARDINAL years’ experience in dealing with child sexual abuse cases .

PERSON examination lasted from TIME until TIME He noted an “ old scar at the QUANTITY position of the anal margin QUANTITY by QUANTITY ” which he stated “ may be due to a past sexual interference ” . The report concluded that “ in my opinion from the examination it looks that there is evidence of sexual interference with the anal passage of this boy ” . The first applicant was removed to a children ’s home after the examination .

A place of safety order was obtained by the police on DATE .

A case conference was held by the local authority on DATE . The first applicant was interviewed on DATE at the children ’s home . He revealed no outward signs of having been abused and denied that he had been abused by his father .

PERSON proceedings were instituted by the local authority on DATE .

On DATE , the local authority held a planning meeting , attended by both parents , at which various options relating to the first applicant ’s residence were discussed . On or DATE , the second applicant moved out of the family home so that the first applicant could return home .

The first applicant had no contact with the second applicant for DATE and thereafter had supervised contact . After the local authority obtained reports on the mother and maternal grandmother , the first applicant was returned home on DATE with the second applicant undertaking not to have unsupervised contact with him . Leave was also granted by ORG on DATE for a further examination of the first applicant .

On DATE , a joint examination on the first applicant was carried out by CARDINAL consultants , PERSON for the local authority and PERSON for the second applicant . The examination lasted from CARDINAL until TIME and included a close examination of the anal and genital areas and a brief internal examination . The small scar noted by PERSON on the anal verge was not observed and both consultants concluded that there was no evidence of anal penile penetration . However , the mother disclosed that the first applicant had told her that he had been anally penetrated by CARDINAL local teenage boys . The first applicant confirmed that he had been abused by CARDINAL pre - pubescent youths . PERSON doubted that there had been penetration and PERSON noted that the penis of a pre - pubescent would be unlikely to cause any detectable injury . PERSON gave the opinion that PERSON had been negligent in diagnosing sexual abuse .

The local authority ’s involvement with the family ceased on DATE when the wardship ended .

An application for damages was brought by the first and second applicants in DATE alleging negligence by the local authority and PERSON They were granted legal aid . The action was stayed in DATE pending the decision in NORP and Others v Bedfordshire County Council . On DATE , ORG held in that case that in negligence no duty of care was owed by local authorities in the exercise of their statutory duties relating to the taking into care of children ( see further below in Relevant Domestic Law and Practice ) . Following this decision the applicants’ case was struck out as disclosing no reasonable cause of action on DATE . Neither the applicants nor their lawyers were present when the case was struck out as this was accepted as the inevitable consequence and no transcript of the proceedings has been provided .

Prior to the coming into force of the current legislation , LAW DATE , on DATE , the local authority ’s duty in respect of child care was governed by LAW .

Sections CARDINAL and CARDINAL of LAW DATE provided that :

“ CARDINAL . It shall be the duty of every local authority to make available such advice , guidance and assistance as may promote the welfare of children by diminishing the need to receive or keep them in care .

CARDINAL(CARDINAL ) Where it appears to a local authority with respect to a child in their area appearing to them to be under DATE CARDINAL -

( a ) that he has neither parent nor guardian or has been and remains abandoned by his parents or guardian or is lost ;

( b ) that his parents or guardian are , for the time being or permanently , prevented by reason of mental or bodily disease or infirmity or other incapacity or any other circumstances from providing for his proper accommodation , maintenance and upbringing ; and

( c ) in either case , that the intervention of the local authority under this section is necessary in the interests of the welfare of the child , it shall be the duty of the local authority to receive the child into their care under this section ” .

Under section CARDINAL ) of the Children and Young Persons’ Act DATE any person , including a local authority , could apply to a magistrate for the authority to detain a child and take him / her to a place of safety . There was power to grant the application if the magistrate was satisfied that the applicant had reasonable cause to believe inter alia that the child ’s proper development was being avoidably prevented or neglected or that he / she was being ill - treated or exposed to moral danger . The order could last a maximum of DATE , with no possibility of extension . Before the expiry of the order , it was necessary for the local authority to institute care proceedings under section QUANTITY of the DATE Act or to make the child a ward of court if it wished either to intervene in the exercise of parental control .

The power of ORG to make a child a ward of court derives from its inherent jurisdiction . The effect is that the court assumes responsibility for the child and may make orders concerning any aspect of the child ’s life . The child ’s welfare must be the first consideration of the court .

As soon as the originating summons is issued , the custody of the child vests in the court . From that moment , the parties to the proceedings , including the local authority , only have such power and authority over the child as is conferred by the court .

In GPE and GPE , there is no single tort which imposes liability to pay compensation for civil wrongs . Instead there are a series of separate torts , for example , trespass , conversion , conspiracy , negligence and defamation .

Negligence arises in specific categories of situations . These categories are capable of being extended . There are CARDINAL elements to the tort of negligence : a duty of care , breach of the duty of care and damage . The duty of care may be described as the concept which defines the categories of relationships in which the law may impose liability on a defendant in damages if he or she is shown to have acted carelessly . To show a duty of care , the claimant must show that the situation comes within an existing established category of cases where a duty of care has been held to exist . In novel situations , in order to show a duty of care , the claimant must satisfy a CARDINAL test , establishing :

– that damage to the claimant was foreseeable ;

– that the claimant was in an appropriate relationship of proximity to the defendant ; and

– that it is fair , just and reasonable to impose liability on the defendant .

These criteria apply to claims against private persons as well as claims against public bodies . The leading case is ORG v. PERSON ( [ DATE ] CARDINAL AC CARDINAL ) .

If the courts decide that as a matter of law there is no duty of care owed in a particular situation , that decision will ( subject to the doctrine of precedent ) apply in future cases where the parties are in the same relationship .

The decision in X and Others v. ORG ( [ DATE ] CARDINAL ORG CARDINAL ) is the leading authority in GPE in this area . In giving judgment in the CARDINAL cases heard together , ORG there held that local authorities could not be sued for negligence or for breach of statutory duty in respect of the discharge of their functions concerning the welfare of children . The children in that case had suffered severe neglect and abuse from their parents and had alleged that the local authority had failed to protect them , inter alia , by not exercising their power to take them into care at an earlier stage . As regards the claims that the local authority owed a duty of care to the applicants pursuant to the tort of negligence , Lord PERSON stated inter alia :

“ I turn then to consider whether , in accordance with the ordinary principles laid down in GPE [ DATE ] CARDINAL A.C. CARDINAL , the local authority ... owed a direct duty of care to the plaintiffs . The local authority accepts that they could foresee damage to the plaintiffs if they carried out their statutory duties negligently and that the relationship between the authority and the plaintiffs is sufficiently proximate . The third requirement laid down in GPE is that it must be just and reasonable to impose a common law duty of care in all the circumstances ...

The Master of the Rolls took the view , with which I agree , that the public policy consideration that has first claim on the loyalty of the law is that wrongs should be remedied and that very potent counter considerations are required to override that policy ( see [ DATE ] CARDINAL AER CARDINAL at CARDINAL ) . However , in my judgment there are such considerations in this case .

First , in my judgment a common law duty of care would cut across the whole statutory system set up for the protection of children at risk . As a result of the ministerial directions contained in “ ORG ” the protection of such children is not the exclusive territory of the local authority‘s social services . The system is inter - disciplinary , involving the participation of the police , educational bodies , doctors and others . At all stages the system involves joint discussions , joint recommendations and joint decisions . The key organisation is ORG , a multi - disciplinary body which decides whether to place the child on ORG . This procedure by way of joint action takes place , not merely because it is good practice , but because it is required by guidance having statutory force binding on the local authority . The guidance is extremely detailed and extensive : the current edition of “ LAW ” runs to CARDINAL pages . To introduce into such a system a common law duty of care enforceable against CARDINAL of the participant bodies would be manifestly unfair . To impose such liability on all the participant bodies would lead to almost impossible problems of disentangling as between the respective bodies the liability , both primary and by way of contribution , of each for reaching a decision found to be negligent .

Second , the task of the local authority and its servants in dealing with children at risk is extraordinarily delicate . Legislation requires the local authority to have regard not only to the physical well - being of the child but also to the advantages of not disrupting the child ’s family environment . ... In one of the child abuse cases , the local authority is blamed for removing the child precipitately ; in the other for failing to remove the children from their mother . As the Report of the Inquiry into Child Abuse in GPE DATE ( ORG . CARDINAL ) ( ‘ ORG CARDINAL’ ) said , at p. CARDINAL :

‘ ... It is a delicate and difficult line to tread between taking action too soon and not taking it soon enough . Social services whilst putting the needs of the child first must respect the rights of the parents ; they also must work if possible with the parents for the benefit of the children . These parents themselves are often in need of help . Inevitably a degree of conflict develops between those objectives.’

ORG , if liability in damages were to be imposed , it might well be that local authorities would adopt a more cautious and defensive approach to their duties . For example , as ORG makes clear , on occasions the speedy decision to remove the child is sometimes vital . If the authority is to be made liable in damages for a negligent decision to remove a child ( such negligence lying in the failure properly first to investigate the allegations ) there would be a substantial temptation to postpone making such a decision until further inquiries have been made in the hope of getting more concrete facts . Not only would the child in fact being abused be prejudiced by such delay , the increased workload inherent in making such investigations would reduce the time available to deal with other cases and other children .

The relationship between the social worker and the child ’s parents is frequently CARDINAL of conflict , the parent wishing to retain care of the child , the social worker having to consider whether to remove it . This is fertile ground in which to breed ill - feeling and litigation , often hopeless , the cost of which both in terms of money and human resources will be diverted from the performance of the social service for which they were provided . The spectre of vexatious and costly litigation is often urged as a reason for not imposing a legal duty . But the circumstances surrounding cases of child abuse make the risk a very high one which can not be ignored .

If there were no other remedy for maladministration of the statutory system for the protection of children , it would provide substantial argument for imposing a duty of care . But the statutory complaints procedures contained in section DATE of LAW and the much fuller procedures now available under LAW provide a means to have grievances investigated though not to recover compensation . Further , it was submitted ( and not controverted ) that the local authorities ORG would have power to investigate cases such as these .

Finally , your Lordships’ decision in Caparo [ DATE ] CARDINAL A.C. CARDINAL lays down that in deciding whether to develop novel categories of negligence the court should proceed incrementally and by analogy with decided categories . We were not referred to any category of case in which a duty of care has been held to exist which is in any way analogous to the present cases . Here , for the first time , the plaintiffs are seeking to erect a common law duty of care in relation to the administration of a statutory social welfare scheme . Such a scheme is designed to protect weaker members of society ( children ) from harm done to them by others . The scheme involves the administrators in exercising discretion and powers which could not exist in the private sector and which in many cases bring them into conflict with those who , under the general law , are responsible for the child‘s welfare . To my mind , the nearest analogies are the cases where a common law duty of care has been sought to be imposed upon the police ( in seeking to protect vulnerable members of society from wrongs done to them by others ) or statutory regulators of financial dealing who are seeking to protect investors from dishonesty . In neither of these cases has it been thought appropriate to superimpose on a statutory regime a common law duty of care giving rise to a claim in damages for failure to protect the weak against the wrongdoer . ... In my judgment , the courts should proceed with great care before holding liable in negligence those who have been charged by ORG with the task of protecting society from the wrong doings of others . ”

In respect of the applicants’ claim in CARDINAL of the cases , known as the GPE case , that the local authority and the health authority were vicariously liable for the actions of the social worker , PERSON , and psychiatrist PERSON respectively , Lord PERSON said as follows :

“ In the PERSON case the pleadings and Mr PERSON ’s submissions make it clear how the case is put . The social worker and the psychiatrist , as professionals , owed a personal duty to the first plaintiff , the child , and to the second plaintiff , the mother , to exercise reasonable professional skills in the conduct of the interview with the child and to make proper enquiries . The social worker and the psychiatrist were each personally in breach of this duty , for which breach their employers ... are vicariously liable . ...

Like the majority in ORG , I can not accept these arguments . The social workers and the psychiatrists were retained by the local authority to advise the local authority , not the plaintiffs . The subject matter of the advice and activities of the professionals is the child ... the fact that the carrying out of the retainer involves contact and relationship with the child can not alter the extent of the duty owed by the professionals under the retainer from the local authority ...

In my judgment in the present cases , the social workers and the psychiatrist did not , by accepting the instructions of the local authority , assume any general professional duty of care to the plaintiff children ...

Even if contrary to my view the social workers and psychiatrist would otherwise have come under a duty of care to the plaintiffs , the same considerations which have led me to the view that there is no direct duty of care owed by the local authorities apply with at least equal force to the question whether it would be just and reasonable to impose such a duty of care on the individual social workers and the psychiatrist . ... ”

ORG later gave judgment on DATE in PERSON v. the GPE of GPE ( [ DATE ] CARDINAL WLR CARDINAL ) . That case concerned the claims of the plaintiff , who had been in care from DATE , that the local authority had negligently failed to safeguard his welfare causing him deep - seated psychiatric problems . The local authority had applied to strike out the case as disclosing no cause of action . ORG , upholding the plaintiff ’s appeal , unanimously held that the case of X and Others v. ORG did not in the circumstances of this case prevent a claim of negligence being brought against a local authority by a child formerly in its care .

Lord PERSON , in his judgment in that case , commented as follows on the operation of the duty of care :

“ ( CARDINAL ) Although the word ‘ ORG is sometimes incorrectly used , a holding that it is not fair , just and reasonable to hold liable a particular class of defendants whether generally or in relation to a particular type of activity is not to give immunity from a liability to which the rest of the world is subject . It is a prerequisite to there being any liability in negligence at all that as a matter of policy it is fair , just and reasonable in those circumstances to impose liability in negligence . ( CARDINAL ) In a wide range of cases public policy has led to the decision that the imposition of liability would not be fair and reasonable in the circumstances , e.g. some activities of financial regulators , building inspectors , ship surveyors , social workers dealing with sex abuse cases . In all these cases and many others the view has been taken that the proper performance of the defendant ’s primary functions for the benefit of society as a whole will be inhibited if they are required to look over their shoulder to avoid liability in negligence . In LANGUAGE law the decision as to whether it is fair , just and reasonable to impose a liability in negligence on a particular class of would - be defendants depends on weighing in the balance the total detriment to the public interest in all cases from holding such class liable in negligence as against the total loss to all would - be plaintiffs if they are not to have a cause of action in respect of the loss they have individually suffered . ( CARDINAL ) In LANGUAGE law , questions of public policy and the question whether it is fair and reasonable to impose liability in negligence are decided as questions of law . Once the decision is taken that , say , company auditors though liable to shareholders for negligent auditing are not liable to those proposing to invest in the company ( see ORG plc v Dickman [ DATE ] CARDINAL All ER CARDINAL , [ DATE ] CARDINAL AC CARDINAL ) , that decision will apply to all future cases of the same kind . The decision does not depend on weighing the balance between the extent of the damage to the plaintiff and the damage to the public in each particular case . ”

At the relevant time , LAW rule CARDINAL of the Rules of ORG provided that a claim could be struck out if it disclosed no reasonable cause of action . This jurisdiction has been described as being reserved for “ plain and obvious cases ” , in which a claim was “ obviously unsustainable ” .

In applications to strike out , the courts proceeded on the basis that all the allegations set out in the claimant ’s pleadings were true . The question for the courts was whether , assuming that the claimant could substantiate all factual allegations at trial , the claim disclosed a reasonable cause of action .

The striking out procedure , now contained in the Part CARDINAL.CARDINAL(CARDINAL ) of ORG in force since DATE , is regarded as an important feature of LANGUAGE civil procedure , performing the function of securing speedy and effective justice , inter alia by allowing it to be decided promptly which issues need full investigation and trial and disposing summarily of the others . By means of this procedure , it can be determined at an early stage , with minimal cost to the parties , whether the facts as pleaded reveal a claim existing in law .


CASE OF MIAILHE v. FRANCE (No. 1) (ARTICLE 50)

Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses award - Convention proceedings

The case was referred to the ORG by ORG ( " the Commission " ) on DATE , within the DATE period laid down by Article CARDINAL para . CARDINAL and LAW ( article DATE , article CARDINAL ) of the Convention . It originated in an application ( no . CARDINAL/CARDINAL ) against GPE lodged with ORG LAW ( article CARDINAL ) by CARDINAL NORP nationals , Mr PERSON , who also has NORP nationality , his mother PERSON , née PERSON , and his wife PERSON , née PERSON , on DATE .

In a judgment of DATE ( " the principal judgment " ) the ORG found that there had been a breach of LAW article CARDINAL) of the LAW , as house searches and seizures by the customs had infringed the applicants’ right to respect for their private life and their correspondence ( Series A no . CARDINAL-C , pp . CARDINAL - CARDINAL , paras . CARDINAL and point CARDINAL of the operative provisions ) .

Only the question of the application of LAW ) in the case remains to be determined . For the facts of the case , reference should be made to paragraphs CARDINAL of the principal judgment ( ibid . , pp . CARDINAL - CARDINAL ) .

As the question of awarding just satisfaction was not ready for decision , although the criminal proceedings against PERSON and PERSON had already ended , it was reserved in whole in the principal judgment . The Court invited the Government and the applicants to submit in writing , within DATE , their observations on the matter and , in particular , to notify it of any agreement they might reach ( ibid . , p. CARDINAL , para . CARDINAL and point CARDINAL of the operative provisions ) .

The PERSON received the applicants’ memorial on DATE , the ORG ’s memorial on DATE and the observations of the Delegate of the Commission on DATE .

At the deliberations on DATE PERSON , substitute judge , replaced Mr PERSON , who was unable to take part in the further consideration of the case ( Rules CARDINAL para . CARDINAL and CARDINAL para . CARDINAL of the Rules of Court ) .


No violation of Article 3 of Protocol No. 1 - Right to free elections-{general} (Article 3 of Protocol No. 1 - Vote)

András Sajó;David Thór Björgvinsson;Dean Spielmann;Françoise Tulkens;George Nicolaou;Guido Raimondi;Helen Keller;Ineta Ziemele;Ireneu Cabral Barreto;Jean-Paul Costa;Josep Casadevall;Karel Jungwiert;Lech Garlicki;Mark Villiger;Mihai Poalelungi;Nicolas Bratza;Nona Tsotsoria;Peer Lorenzen;Vincent A. De Gaetano;Vladimiro Zagrebelsky

The applicant was born in DATE and is currently in compulsory residence at GPE Hospital – Fidenza ( GPE ) .

On DATE , after a violent family dispute , the applicant killed his wife and injured CARDINAL of his sons . He was arrested DATE .

At the end of the preliminary investigation the GPE prosecution service asked for the applicant to be committed to stand trial for murder , attempted murder , ill - treatment of his family and unauthorised possession of a firearm .

On DATE , under the summary procedure under which the applicant had elected to stand trial , the GPE preliminary hearings judge ( giudice dell’udienza preliminare ) found the applicant guilty of all the charges and noted that he should be sentenced to life imprisonment . However , because the summary procedure had been used , he sentenced the applicant to DATE imprisonment and a lifetime ban from public office within the meaning of LAW ( see paragraph CARDINAL below ) .

The judge noted that the applicant had first attempted to strangle his wife with the cable of the telephone she had used to call the police . Then , when his wife and children ran out of the flat and down the stairwell of the building , he had fired several shots at his wife at close range , and at one of his sons , who had initially been ahead of his mother but had gone back to help her .

NORP In fixing the sentence the judge took into account certain aggravating circumstances , namely the fact that the applicant ’s criminal behaviour had been against his own family and had been triggered by so trifling an incident as his children having allegedly broken his mobile phone .

The judge made no allowance for the fact that the applicant had no previous criminal record , an argument the applicant had relied on as a mitigating circumstance . He found that the applicant ’s attitude in denying some of his actions and blaming his family , who he claimed were guilty of rebelling against his authority , showed that he felt no remorse whatsoever .

Lastly , the judge noted that according to witness statements the applicant had been responsible for other episodes of violence over DATE , such as insults , physical violence and threats against his wife and children , including with weapons .

Both ORG and the applicant appealed against that judgment , and in a judgment of DATE ORG sentenced the applicant to life imprisonment , upholding the conclusions of the preliminary hearings judge as to which aggravating and mitigating circumstances should be taken into account .

The applicant appealed on points of law , and in a judgment deposited with its registry on DATE ORG dismissed the appeal .

Under LAW , the life sentence imposed on the applicant entailed a lifetime ban from public office , which in turn led to the permanent forfeiture of his right to vote , in conformity with section CARDINAL of Presidential Decree no . CARDINAL of DATE ( “ Decree no . CARDINAL ” – see paragraph CARDINAL below ) .

The applicant ’s disenfranchisement was not mentioned in the judgments against him .

In application of section DATE of Decree no . CARDINAL ( see paragraph CARDINAL below ) , on DATE the electoral committee deleted the applicant ’s name from the electoral roll .

On DATE the applicant lodged a complaint with the electoral committee . Referring to the ORG v. GPE ( no . CARDINAL ) judgment ( no . CARDINAL/CARDINAL , DATE ) , amongst other authorities , he alleged that depriving him of the right to vote was incompatible with LAW No . CARDINAL to the Convention .

The complaint was rejected , and on DATE the applicant lodged an appeal with ORG . He contended that the fact that the removal of his name from the electoral roll , as an automatic consequence of his life sentence and lifetime ban from public office , was incompatible with his right to vote guaranteed by LAW No . CARDINAL to the Convention .

By a judgment deposited with its registry on CARDINAL DATE ORG dismissed the appeal . It pointed out that , unlike in the ORG ( no . CARDINAL ) case ( cited above ) , where every person sentenced to imprisonment was divested of the right to vote , with no assessment of the competing interests or the proportionality of the measure , in NORP law the impugned measure was applied only where the offence was punishable with a particularly heavy sentence , including life imprisonment . The court found that the automatic aspect of the application of the voting ban to any custodial sentence was lacking in the applicant ’s case .

The applicant appealed on points of law , alleging , inter alia , that his disenfranchisement was a consequence of the ancillary penalty banning him from public office ( which was itself the result of the main penalty imposed on him ) . In his view the impugned ban had nothing to do with the offence committed and the courts had no power to decide to apply such a measure .

In a judgment deposited with its registry on DATE ORG dismissed the applicant ’s appeal . First , it referred to the ORG ( no . CARDINAL ) judgment of DATE ( ORG v. GPE ( no . CARDINAL ) [ ORG ] , no . CARDINAL/CARDINAL , § CARDINAL , ORG CARDINALIX ) , where ORG considered that the withdrawal of voting rights in GPE “ concern[ed ] a wide range of offenders and sentences , from DATE to life and from relatively minor offences to offences of the utmost gravity ” . It then noted that in NORP law , under LAW , only those offenders sentenced to CARDINAL years’ imprisonment were deprived of the right to vote . Where the offence attracted a sentence of DATE , the disenfranchisement lasted DATE , a lifelong ban on voting being reserved for offenders sentenced to DATE and life .

On DATE , the applicant lodged an application with the ORG alleging , inter alia , that his life sentence had breached ORG CARDINAL and CARDINAL of the Convention .

In a judgment of CARDINAL DATE the Grand Chamber of the ORG found violations of those ORG ( see PERSON v. GPE ( no . CARDINAL ) [ ORG ] , no . CARDINAL/CARDINAL , CARDINAL DATE ) .

NORP ’s sentence of life imprisonment is replaced by a penalty consistent with the principles set out in the present judgment , which is a sentence not exceeding thirty years’ imprisonment . ” ( see PERSON ( no . CARDINAL ) , cited above , § CARDINAL ) .

Consequently , by a judgment deposited with its registry on DATE , ORG reversed its judgment of DATE ( see paragraph CARDINAL above ) , set aside the judgment of ORG of DATE ( see paragraph CARDINAL above ) and fixed the applicant ’s sentence at DATE imprisonment .

In the NORP legal system a ban from public office is an ancillary penalty ( LAW ) which entails forfeiture of the right to vote ( Presidential Decree no . CARDINAL ) and for which express provision is made by law in connection with a series of specific offences , irrespective of the duration of the sentence imposed DATE such as embezzlement of public funds , by a public official ( peculato ) or otherwise , extortion , and market abuse ( punishable , respectively , under Articles CARDINAL , CARDINAL bis , CARDINAL and CARDINAL of LAW ) ; certain offences against the judicial system , such as perjury by a party , fraudulent expertise or interpretation , obstructing the course of justice and “ disloyal counsel ” ( consulenza infedele ) ( punishable , respectively , under LAW , CARDINAL , CARDINAL and CARDINAL of LAW ) ; and offences involving abuse and misuse of the powers inherent in public office ( LAW ) .

Conviction for any offence punishable by imprisonment also results in the offender being banned from public office . The ban from public office may be temporary ( where the sentence is DATE or more ) or permanent ( for sentences of DATE or more and life imprisonment ) . The relevant domestic legal provisions are the following .

Presidential Decree no . CARDINAL ( on the Unified Code governing the active electorate and the maintenance and revision of the electoral rolls ) reads as follows , in so far as relevant :

“ CARDINAL . The following persons shall not vote : ...

( d ) persons who have been sentenced to penalties entailing a lifetime ban from public office ...

( e ) persons under a temporary ban from public office , for the duration of that ban .

Judgments in criminal cases shall entail the loss of voting rights only once they have become final . ”

“ No change may be made to the electoral rolls ... save ... :

( CARDINAL ) where the right to vote has been lost as a result of a judgment or other measure by a judicial authority . ...

( CARDINAL ) appeals against decisions to change the electoral rolls may be lodged with the relevant electoral committee within a DATE time - limit . The committee shall decide within DATE ... ”

“ The decisions of the electoral committee ... may be challenged by appeal to the appropriate ORG . ”

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

“ The ban from public office may be for life or temporary .

In the event of a lifetime ban from public office , unless the law provides otherwise , the convicted person shall be deprived of :

( CARDINAL ) the right to vote or stand for election in any electoral body ( comizio elettorale ) and all other political rights . ”

“ A sentence to life imprisonment or to imprisonment for DATE shall entail a lifetime ban from public office for the convicted person ; sentencing to imprisonment for not DATE shall entail a DATE ban from public office ... ”

Articles CARDINAL and CARDINAL of the Criminal Code lay down sentencing guidelines for the trial courts and read as follows :

“ Within the limits set by the law , the court shall apply the sentence at its discretion ; it shall justify its use of this discretionary power with proper reasoning .

In increasing or decreasing the sentence the court shall not overstep the statutory limits for each type of sentence , save where expressly provided for by law . ”

“ In exercising the discretionary power mentioned in DATE Article the court shall take into account the gravity of the offence , having regard to :

( CARDINAL ) the nature , type , means , object , time , place and any other attribute of the action ;

( CARDINAL ) the gravity of the harm done or the danger caused to the victim of the offence ;

( CARDINAL ) the level of intent or the degree of guilt .

The court shall also take into account the offender ’s propensity to commit crime ( capacità a delinquere ) , based on :

( CARDINAL ) the motives behind the offence ( motivi a delinquere ) and the character of the offender ( reo ) ;

( CARDINAL ) the offender ’s past criminal and judicial record and , in general , the person ’s life and conduct prior to committing the offence ;

( CARDINAL ) the offender ’s conduct at the time of , or after , the offence ;

( CARDINAL ) the offender ’s personal , family and social situation . ”

Articles CARDINAL and CARDINAL of the Criminal Code provide for the rehabilitation of offenders and read as follows :

“ Rehabilitation shall terminate any ancillary penalties and other penal effect of the conviction , unless otherwise provided by law . ”

“ Rehabilitation may be granted DATE on which the main penalty has been completed or otherwise extinguished , provided that the offender has displayed consistent and genuine good conduct . ... ”

Law no . CARDINAL of CARDINAL DATE provides , inter alia , for the possibility of early release . The relevant part of LAW ( CARDINAL ) reads as follows :

“ In order to facilitate reintegration into society , convicted prisoners who take part in the re - education scheme may have their sentence reduced by DATE for DATE served ... ”

NORP The relevant provisions of LAW read as follows :

“ CARDINAL . All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person .

NORP The penitentiary system shall comprise treatment of prisoners the essential aim of which shall be their reformation and social rehabilitation ... ”

“ Every citizen shall have the right and the opportunity , without any of the distinctions mentioned in LAW [ race , colour , sex , language , religion , political or other opinion , national or social origin , property , birth or other status ] and without unreasonable restrictions :

( a ) To take part in the conduct of public affairs , directly or through freely chosen representatives ;

( b ) To vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot , guaranteeing the free expression of the will of the electors ;

( c ) To have access , on general terms of equality , to public service in his country . ”

In its General Comment no . DATE ) on LAW , ORG expressed the following view :

“ CARDINAL . In their reports , GPE parties should indicate and explain the legislative provisions which would deprive citizens of their right to vote . The grounds for such deprivation should be objective and reasonable . If conviction for an offence is a basis for suspending the right to vote , the period of such suspension should be proportionate to the offence and the sentence . Persons who are deprived of liberty but who have not been convicted should not be excluded from exercising the right to vote . ”

In its views on the LOC and PERSON v. GPE case ( DATE , no . DATE ) , ORG , referring to the ORG ’s judgment in ORG ( no . CARDINAL ) [ ORG ] ( cited above ) , stated :

“ CARDINAL ... ORG , whose legislation provides a blanket deprivation of the right to vote to anyone sentenced to a term of imprisonment , did not provide any arguments as to how the restrictions in this particular case would meet the criterion of reasonableness as required by the LAW . In the circumstances , the ORG concludes there has been a violation of article CARDINAL alone and in conjunction with article CARDINAL , paragraph CARDINAL , of the LAW ... ”

DATE of ORG , under the heading “ Right to Participate in Government ” , provides :

“ CARDINAL . Every citizen shall enjoy the following rights and opportunities :

a. to take part in the conduct of public affairs , directly or through freely chosen representatives ;

b. to vote and to be elected in genuine periodic elections , which shall be by universal and equal suffrage and by secret ballot that guarantees the free expression of the will of the voters ; and

c. to have access , under general conditions of equality , to the public service of his country .

The law may regulate the exercise of the rights and opportunities referred to in the preceding paragraph only on the basis of age , nationality , residence , language , education , civil and mental capacity , or sentencing by a competent court in criminal proceedings . ”

This document , adopted by ORG ( “ the GPE Commission ” ) at its CARDINALst plenary session ( DATE ) and submitted to ORG of ORG on DATE , lays out the guidelines developed by the Commission concerning the circumstances in which people may be deprived of the right to vote or to stand for election . The relevant passages read as follows :

“ i. provision may be made for depriving individuals of their right to vote and to be elected , but only subject to the following cumulative conditions :

ii . it must be provided for by law ;

iii . the proportionality principle must be observed ; conditions for depriving individuals of the right to stand for election may be less strict than for disenfranchising them ;

iv . the deprivation must be based on mental incapacity or a criminal conviction for a serious offence ;

v. Furthermore , the withdrawal of political rights or finding of mental incapacity may only be imposed by express decision of a court of law . ”

DATE examined in a comparative law study place no restrictions on the right of convicted prisoners to vote : GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , “ the former GPE ” and GPE .

Seven GPE ( GPE , GPE , GPE , GPE , GPE , GPE and GPE ) automatically deprive all convicted prisoners serving prison sentences of the right to vote .

The remaining CARDINAL member GPE ( GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE and GPE ) have adopted an intermediate approach : disenfranchisement of prisoners depends on the type of offence and/or the length of the custodial sentence . GPE ’s legislation on the subject resembles that of this group of countries .

In some of the GPE in this category the decision to deprive convicted prisoners of the right to vote is left to the discretion of the criminal court ( GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE and GPE ) . In GPE and GPE , in the event of particularly serious offences disenfranchisement is applied independently of any court decision .

In DATE ORG unanimously struck down a legislative provision barring all prisoners from voting ( PERSON v. GPE ( no . CARDINAL ) , ORG , DATE , vol . CARDINAL , p. CARDINAL ) . Amendments were introduced limiting the ban to prisoners serving sentences of DATE or more . ORG upheld that provision . However , on DATE ORG held by CARDINAL votes to CARDINAL , in the case of PERSON v. Attorney General of GPE ( no . CARDINAL ) , that section CARDINAL ( e ) of the DATE LAW , denying the right to vote to all persons serving sentences of DATE or more in a correctional institution , was unconstitutional as it infringed ORG CARDINAL and CARDINAL of LAW , which provide :

“ CARDINAL . LAW guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society . ”

“ CARDINAL . Every citizen of GPE has the right to vote in an election of members of ORG or of a legislative assembly and to be qualified for membership therein . ”

The majority opinion given by PERSON considered that the right to vote was fundamental to democracy in GPE and the rule of law and could not be lightly set aside . Limits on this right required not deference , but careful examination . The majority found that the Government had failed to identify the particular problems that required denying the right to vote and that the measure did not satisfy the proportionality test , in particular as the Government had failed to establish a rational connection between the denial of the right to vote and its stated objectives of enhancing civic responsibility and respect for the rule of law and imposing appropriate punishment .

The minority opinion given by PERSON found that the objectives of the measure were pressing and substantial and based upon a reasonable and rational social or political philosophy ( for further details of these opinions , particularly concerning the objectives of the impugned measure , see PERSON ( no . CARDINAL ) [ ORG ] , cited above , § § DATE ) .

On DATE ORG considered the application of prisoners for a declaration and orders that ORG take measures enabling them and other prisoners to register and vote while in prison . It noted that , under LAW , the right of every adult citizen to vote in elections for legislative bodies was set out in unqualified terms , and it underlined the importance of that right :

“ The universality of the franchise is important not only for nationhood and democracy . The vote of each and every citizen is a badge of dignity and personhood . Quite literally , it says that everybody counts . ”

The Constitutional Court found that the right to vote by its very nature imposed positive obligations upon the legislature and the executive and that LAW must be interpreted in a way that gave effect to constitutional declarations , guarantees and responsibilities . It noted that many democratic societies imposed voting disabilities on some categories of prisoners . Although there were no comparable provisions in LAW , it recognised that limitations might be imposed upon the exercise of fundamental rights , provided they were , inter alia , reasonable and justifiable .

The question whether legislation barring prisoners would be justified under LAW was not raised in the proceedings and the court emphasised that the judgment was not to be read as preventing ORG from disenfranchising certain categories of prisoners . In the absence of such legislation , prisoners had the constitutional right to vote and neither ORG nor ORG had the power to disenfranchise them . It concluded that the ORG was under the obligation to make reasonable arrangements for prisoners to vote .

The Constitutional Court of GPE examined whether the DATE amendment to LAW , depriving of the right to vote those prisoners serving sentences of imprisonment without the option of a fine , was compatible with LAW .

ORG found the measure unconstitutional , by CARDINAL votes to CARDINAL , and ordered ORG to take the necessary steps to allow prisoners to vote in elections .

Chaskalson CJ , for the majority , concluded that in a case such as this where the government sought to disenfranchise a group of its citizens and the purpose was not self - evident , there was a need for it to place sufficient information before the court to enable it to know exactly what purpose the disenfranchisement was intended to serve . Moreover , in so far as the ORG relied upon policy considerations , there should be sufficient information to enable the court to assess and evaluate the policy that was being pursued ( see paragraphs CARDINAL and CARDINAL of the judgment ) . PERSON further noted that this was a blanket exclusion aimed at every prisoner sentenced to imprisonment without the option of a fine , and that there was no information about the sort of offences concerned , the sort of persons likely to be affected and the number of persons who might lose their vote for a minor offence .

Madala J , for the minority , considered that the temporary removal of the vote and its restoration upon the prisoner ’s release was in line with the ORG ’s objective of balancing individual rights and the values of society , particularly in a country like GPE with its very high crime rate ( see paragraphs CARDINAL and CARDINAL of the judgment ) .

The High Court of GPE found by CARDINAL votes to CARDINAL against the general voting ban that had been introduced in the place of the previous legislation , which had provided for the loss of the right to vote only in connection with prison sentences of DATE or more ( see PERSON v. ORG Commissioner [ DATE ] ORG CARDINAL ( DATE ) ) .

ORG noted , inter alia , that the earlier legislation took into account the seriousness of the offence committed as an indicium of culpability and temporary unfitness to participate in the electoral process , beyond the bare fact of imprisonment ( see paragraph CARDINAL of the judgment ) .


IERONYMAKIS AND OTHERS AND PLEVRAKI v. GREECE

The applicants are CARDINAL NORP nationals whose names are held in the ORG ’s case - file . They are represented before the ORG by Mr A. Bafakis , a lawyer practising in GPE ( GPE ) .

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

The applicants were hired by ORG and were put at the disposal of the NORP forces in GPE , in accordance with an agreement concluded between GPE and GPE .

In DATE ORG ( ORG Διαιτητικό Δικαστήριο ) of GPE considered that the members of ORG ( PERSON δια τας Δυνάμεις ΗΠΑ ) were entitled to a pay rise ( decision no . DATE ) .

On DATE the Minister of Labour vested this decision with executory force ( ministerial decision no . CARDINAL ) . However , the applicants were never given the pay rise in question .

DATE and DATE the applicants were dismissed from their posts because the NORP base where they used to work closed down .

On DATE ORG considered , by majority , that ORG was under no obligation to employ those dismissed from the NORP base . However , on DATE the Deputy Minister of ORG refused to accept the opinion of ORG . On the contrary , he accepted the opinion of the minority to the effect that the persons concerned remained employees of ORG .

The applicants remain unemployed .

Under the NORP legal system , the failure to conclude a collective labour agreement ( συλλογική σύμβαση εργασίας ) gives rise to the intervention of ORG . The final decisions of these courts are regulatory administrative acts ( κανονιστικές διοικητικές πράξεις ) which , following their approval by ORG , have the effect of collective labour agreements . Their non - enforcement gives the interested employees an actionable claim against the ORG .

Several former employees of the NORP forces ( CARDINAL out of CARDINAL ) have brought civil actions before the ordinary courts seeking the readjustment of their salaries on the basis of decision no . CARDINAL . The courts found in their favour ( see , for example , decision no . CARDINAL/CARDINAL of the First Instance Civil Court of Heraklion , upheld by decision no . CARDINAL/CARDINAL of ORG ) . The ORG , which had originally appealed in cassation , withdrew its appeals and has already complied with the ORG judgments .


Violation of Art. 5-3;Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses (domestic proceedings) - claim dismissed

On DATE the applicant was arrested by the police . On DATE the Starogard Gdański District Prosecutor ( Prokurator Rejonowy ) charged the applicant with the commission of robbery together with CARDINAL accomplices and remanded him in custody . The charges related to a brutal assault of a businessman who had been attacked with a baseball bat and tear gas and robbed of MONEY .

On DATE the ORG ( PERSON ) decided to extend the applicant ’s detention . On DATE the applicant appealed against that decision to ORG ( Sąd Apelacyjny ) . On DATE the appellate court dismissed the appeal . It rejected the applicant ’s contention that ORG decision referred only in general terms to the reasons justifying his detention . In addition , the appellate court considered that the evidence taken from CARDINAL of the witnesses gave rise to reasonable suspicion that the applicant had committed the robbery .

On DATE the ORG decided to extend the applicant ’s detention until DATE . It considered that the evidence showed that the applicant had probably committed the criminal offence with which he was charged . The court pointed out that several pieces of evidence remained to be taken , including the psychiatric examination of the applicant . It also considered that the fact that the investigation in the case was not concluded at that stage could not be attributed to the inactivity of the prosecuting authorities . On DATE the applicant appealed to ORG against that decision . On DATE his appeal was dismissed .

NORP On DATE the ORG filed with ORG a bill of indictment . However , ORG returned it to ORG instructing him to elaborate its reasoning .

On DATE the ORG dismissed an application for release made by the applicant . The court noted , inter alia , that the evidence gave rise to reasonable suspicion that the applicant had committed a criminal offence , which constituted a significant danger to society ( znaczny stopień społecznego niebezpieczeństwa ) . It also observed that the applicant ’s son was cared for by his cohabitee , who was assisted by her parents and the applicant ’s mother . The applicant appealed that decision .

On DATE and CARDINAL DATE the applicant applied to ORG for release from detention .

On DATE the ORG re - submitted a bill of indictment to ORG .

On DATE the applicant again applied to ORG for release from detention but his application was dismissed on DATE .

The applicant made a fresh application for release but it was on CARDINAL DATE dismissed by ORG . The court noted that the evidence gave rise to reasonable suspicion that the applicant had committed a criminal offence , which caused the significant danger to society . It also rejected the applicant ’s contention that he should be released because he had already spent TIME of time in detention waiting for a hearing and pointed out that a hearing in his case was fixed for DATE .

On DATE the ORG dismissed the applicant ’s appeal against ORG decision of CARDINAL DATE . The appellate court referred to several pieces of evidence collected in the case , which in its opinion pointed to the applicant ’s guilt . It also recalled the significant danger to society caused by the criminal offence with which the applicant was charged and observed that , in view of the length of a sentence , which could be imposed on him for the commission of that offence , his detention was not excessively long .

On DATE the ORG dismissed an application for release made by the applicant . On DATE first hearing in the case was held . It was adjourned until DATE .

On DATE the ORG dismissed the applicant ’s appeal against ORG decision of DATE rejecting his application for release from detention . The appellate court referred , inter alia , to the significant danger to society caused by the criminal offence with which the applicant was charged and the fact that it carried a penalty exceeding CARDINAL years’ imprisonment .

The court further noted that the applicant had not submitted any evidence showing that the situation of his family called for his release . It also pointed out that the length of the proceedings before ORG was excessive . In that connection , the appellate court recalled that a period of DATE had elapsed between the date on which the bill of indictment had been submitted to the trial court and the date of the first hearing . In addition , the first hearing had been adjourned for DATE and only DATE was reserved in ORG calendar for the second hearing which , in the appellate court ’s opinion , would result in a further adjournment as it would be impossible to take evidence from all CARDINAL suspects in the case on DATE . ORG finally recommended that the proceedings in the case be expedited .

On DATE a hearing was held before the trial court .

On DATE the Vice - President of ORG replied to the applicant ’s letter of DATE in which he had complained , inter alia , about a delay in the proceedings . The Vice - President advised the applicant that he was not in position to interfere with the proceedings and that only an independent court was competent to decide whether his detention on remand was justified .

Furthermore , the Vice - President observed that a hearing held on DATE had been adjourned because of the absence of counsel . In addition , during a hearing held on DATE evidence was taken from the defendants and CARDINAL witnesses . The inability to hold hearings at shorter intervals resulted from the heavy workload of judges and the lack of courtrooms . The Vice - President considered that , although the applicant ’s case disclosed a certain delay , it was not significant . He also advised the applicant that the President of ORG had been informed about the necessity to expedite proceedings in criminal cases .

The next hearings in the case took place on DATE and DATE . The ORG submitted that on the latter date the applicant ’s cohabitee recanted her testimony and explained that she had been persuaded by the applicant to testify that he had been with her when the robbery had been committed .

On DATE the ORG rejected as unsubstantiated the applicant ’s challenge to one of the judges considering his case .

On DATE and DATE ORG held hearings in the case .

On DATE the ORG rejected an application for release made by the applicant . On DATE the ORG dismissed the applicant ’s appeal against that decision . The appellate court observed that the proceedings in the applicant ’s case had been expedited and that they should end before DATE . It also recalled the significant danger to society caused by the criminal offence with which the applicant was charged .

On DATE and DATE hearings in the case took place .

The applicant made a further application for release but it was dismissed on DATE by ORG . On DATE the ORG dismissed the applicant ’s appeal against that decision . The appellate court referred , inter alia , to the fact that the evidence collected in the course of the proceedings showed that charges laid against the applicant were sufficiently justified . In addition , the alleged criminal act was drastic and involved the theft of a significant sum of money . The court noted that the proceedings had been recently expedited and pointed out that a hearing scheduled for DATE had been adjourned “ for objective reasons ” . Moreover , the next hearing was fixed for DATE .

The next hearings were held on DATE and DATE .

On DATE the ORG rejected an application for release lodged by the applicant . On DATE the ORG dismissed the applicant ’s appeal against that decision . It considered that the evidence in the case pointed at the applicant and his co - defendants . Furthermore , the court agreed with the applicant ’s submission that the proceedings in his case had already taken a significant period of time . However , it considered that , in view of the nature of the charges laid against the applicant , that period was not excessive . The appellate court further noted that CARDINAL witnesses remained to be heard in the case .

On DATE , CARDINAL and DATE hearings were held before ORG .

On DATE the ORG rejected an application for release made by the applicant . On CARDINAL DATE the ORG dismissed the applicant ’s appeal against that decision . The appellate court recalled the significant danger to society caused by the criminal offence with which the applicant was charged . It also pointed out that although the detention had lasted already DATE , the trial court had not failed to try to expedite the proceedings . In that connection , it observed that CARDINAL hearings had been held since DATE and that the trial court was not responsible for the failure to conclude the proceedings . Furthermore , ORG was of the opinion that the worsening financial situation of the applicant ’s family did not constitute a ground for his release and observed that the applicant ’s wife was helped by social services .

DATE and DATE CARDINAL hearings took place before the trial court .

On DATE the ORG rejected an application for release made by the applicant together with his counsel . On unspecified dates the applicant and his counsel lodged separately appeals against that decision .

On DATE the ORG dismissed the appeal lodged by the applicant ’s counsel against ORG decision of DATE . The court pointed out that the applicant was charged with a criminal offence , which carried “ a heavy load of social harmfulness ” ( wysoki ładunek społecznej szkodliwości ) , especially in view of the manner in which it had been committed . Moreover , a severe penalty , which could be imposed for the commission of such an offence , justified the detention . The court also stated that although the judicial proceedings in the case were substantially delayed , they would be probably concluded shortly .

On DATE the ORG dismissed the applicant ’s appeal against ORG decision of DATE . The appellate court referred to the grounds for its decision of CARDINAL DATE . In addition , it pointed out that the proceedings in the case had reached the final stage , as there had been a hearing fixed for DATE and CARDINAL witnesses had been called to testify on DATE .

On DATE a hearing took place .

On DATE the ORG transmitted the case - file to ORG ( Sąd Najwyższy ) , together with a request that the applicant ’s detention on remand be extended .

On DATE ORG decided to extend the applicant ’s detention until DATE . The court firstly observed that there existed in the applicant ’s case general legal grounds for detaining him on remand . It considered that , although the question of guilt would be decided by the trial court , the evidence collected in the course of the proceedings pointed towards the applicant ’s guilt .

Moreover , ORG pointed out that although the proceedings in the case had lasted so far DATE , they had reached the final stage already in DATE . However , CARDINAL out of QUANTITY hearings scheduled in DATE had been adjourned for reasons over which the trial court had no influence . In addition , the counsel acting in the case were responsible for CARDINAL adjournments . ORG based its decision to extend the applicant ’s detention on LAW of LAW which provided for the prolongation of detention because of “ other significant circumstances , which could not be overcome by the organs conducting the proceedings ” . It also pointed out that the proceedings could end in the near future after just a few additional hearings . Finally , the court recommended that additional defence lawyers be appointed in the case in order to avoid adjournments of hearings caused by the ill - health of counsel .

On DATE and DATE hearings were held before ORG .

On DATE the ORG convicted the applicant of robbery and sentenced him to DATE imprisonment , a fine and disenfranchisement for DATE . The applicant appealed against that judgment to ORG .

On DATE a hearing took place before the appellate court .

The next hearing was held on DATE . The Government asserted that on that occasion CARDINAL of the most important witnesses testified that the applicant ’s mother had put on her pressure to submit false evidence .

On DATE the applicant made a new application for release but it was on DATE dismissed by ORG .

On DATE the court received an expert opinion . On CARDINAL DATE the applicant ’s legal aid counsel asked the court to exempt him from defending the applicant .

DATE . On DATE the ORG quashed the judgment of the trial court and remitted the case to the prosecution service instructing it to carry out further investigation . On DATE the applicant was released from detention .

The Government submitted that on DATE the victim of the robbery informed the ORG that he would not take part in the crime scene reconstruction because he had received threats to his life and family and was therefore afraid of the perpetrators of the crime .

On DATE the Starogard Gdański District Prosecutor filed with ORG a new bill of indictment against the applicant .

The hearing held on DATE before ORG was adjourned . The Government submitted that the adjournment resulted from the applicant ’s failure to attend the hearing .

On DATE the applicant withdrew a power of attorney from his counsel .

On DATE , DATE and DATE hearings took place . On CARDINAL latter occasions they were adjourned because of the absence of some of the accused .

The next hearings were held on DATE , DATE and DATE . The Government submitted that the first and the third of those hearings were adjourned because the applicant failed to appear before the court . The applicant averred that he attended all hearings except for CARDINAL occasions , when he was prevented from appearing before the court by ill - health .

NORP The proceedings are still pending .

At the material time , LAW DATE ( “ the Code ” ) listed as preventive measures , inter alia , detention on remand , bail and police supervision . LAW provides as follows :

“ Preventive measures may be imposed in order to secure the proper course of proceedings if the evidence against the accused sufficiently justifies the opinion that he has committed a criminal offence . ”

Furthermore , the LAW allowed authorities a margin of discretion as to whether to continue the enforcement of preventive measures . Detention on remand was regarded as the most severe preventive measure . LAW provides as follows :

“ A preventive measure shall be immediately quashed or changed if the grounds therefor have ceased to exist or if new circumstances have arisen , which justify quashing a given measure or replacing it with one that is either more or less severe . ”

Article CARDINAL of the Code provides :

“ Detention on remand shall be imposed only when it is mandatory ; this measure shall not be imposed if bail or police supervision , or both of these measures , are considered adequate . ”

Article CARDINAL of the Code , before it was amended on DATE , provided in so far as relevant :

“ Detention on remand may be imposed if :

NORP there is a reasonable risk that an accused will abscond or go into hiding , in particular when his identity can not be established or he has no permanent domicile , or

NORP there is a reasonable risk that he will attempt to induce witnesses to give false testimony or to obstruct the proper course of proceedings by any other unlawful means , or

the accused was charged with a commission of a criminal offence or acted as a habitual offender , as provided for by LAW , or

the accused was charged with the commission of an act which constituted a significant danger to society . ”

Article CARDINAL provides :

“ If there are no special reasons to the contrary , detention on remand should be quashed , in particular , when :

( CARDINAL ) it may seriously jeopardise the life or health of the accused ; or

( CARDINAL ) it would entail hardship for the accused or his family . ”

Until DATE , when the Code was amended , NORP law did not set out any statutory time - limits concerning detention on remand in court proceedings but only in respect of the investigative stage .

Article CARDINAL of the Code , as applicable after DATE , provides in so far as relevant :

“ CARDINAL . The whole period of detention on remand until the date on which the court of first instance gives judgment may not exceed DATE and DATE in cases concerning ordinary offences . In cases concerning serious offences this period may not exceed DATE .

NORP In particularly justified cases ORG may , upon the request of the court competent to deal with the case ( ... ) prolong detention on remand for a further fixed period exceeding the periods referred to in DATE , when it is necessary in connection with a suspension of the proceedings , a prolonged psychiatric observation of the accused , when evidence needs to be obtained from abroad or when the accused has deliberately obstructed the termination of the proceedings in the terms referred to in paragraph CARDINAL . ”

Subsequently , paragraph CARDINAL was extended to include also “ other significant circumstances , which could not be overcome by the organs conducting the proceedings ” .