Remainder inadmissible;Violation of Art. 3;Non-pecuniary damage - award

David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza

The applicant , PERSON PERSON Orchowski , is a NORP national who was born in DATE and is currently serving a prison sentence in FAC in GPE .

By the time the instant case was communicated to ORG , the applicant had been detained subsequently in CARDINAL detention facilities ( see paragraphs DATE below ) . On CARDINAL DATE , however , he was transferred to Kamińsk Prison and from there , on DATE , to ORG . Subsequently , on DATE the applicant was taken to PERSON . On an unspecified date , as it appears , in DATE he was transferred to ORG . Finally , as it appears , on CARDINAL DATE the applicant was committed to ORG , where he remained .

NORP The parties’ statements relating to the conditions of the applicant ’s detention prior to DATE are , to a large extent , contradictory . The Government did not make any comments with regard to the applicant ’s detention after that date , except for the period when the applicant was detained in FAC .

From DATE until DATE , from DATE until DATE , from DATE until DATE and from DATE until DATE the applicant was detained in FAC .

Detainees in FAC had a right to a TIME long outdoor exercise in CARDINAL of the QUANTITY , measuring CARDINAL and QUANTITY ( “ m² ” ) respectively . ORG and DATE inmates respectively shared the yards at a time . The applicant had access to the TV and entertainment room in the remand centre twice a week for TIME at a time . He could watch television or play table tennis .

The Government submitted that during the first term of his detention in FAC ( from DATE until DATE ) the applicant was held in CARDINAL different cells . The size of those cells varied DATE m² and the occupancy rate fluctuated CARDINAL persons . In either case , the space per person ranged CARDINAL .

As regards the other periods of the applicant ’s detention , the ORG submitted that ORG had not kept any records of the applicant ’s accommodation or of the number of prisoners assigned to each cell . They noted that it had not been possible to keep records because the number of detainees assigned to a particular cell changed very often , even several times per day .

The Government acknowledged the existence of overcrowding in FAC at the time when the applicant was detained there . They submitted that the remand centre ’s governor had been obliged to regularly inform the competent penitentiary judges about the fact that the detainees had less than the statutory CARDINAL m² of space per person .

The Government also submitted that the prisoners were entitled to CARDINAL hot shower at least once per week . The shower - room in FAC was , at the relevant time , equipped with CARDINAL shower - heads . Prisoners showered in groups of CARDINAL .

DATE ORG ( PERSON ) carried out CARDINAL inspections at FAC . The Government did not provide any information as to the results of those inspections . They noted that cells in FAC were disinfected once DATE . In addition , a sufficient amount of hygiene and sanitary products was distributed among detainees DATE . Prisoners had their underwear changed once DATE and their clothes and shoes , as often as necessary . The bed linen was washed DATE . Detainees had their meals inside their cells .

The applicant ’s cells were well - lit and ventilated . They were in a good condition as they had been renovated DATE previously .

The applicant submitted that his cell during his first detention in FAC measured CARDINAL ORG and was shared by CARDINAL detainees , including the applicant ( QUANTITY m² per person ) .

The official statistics obtained by the applicant ’s lawyer from the Head of ORG in ORG ( Kierownik NORP Prasowego i ORG w PERSON ) reveal the following data . The overcrowding ( the degree by which the number of prisoners exceeds the maximum allowed capacity of a particular detention facility ) at FAC during the applicant ’s first detention was PERCENT , during his second detention PERCENT , during his third detention PERCENT and during his fourth detention DATE PERCENT .

From DATE until DATE , from CARDINAL until DATE , from DATE until DATE , and from DATE until DATE , the applicant was detained in FAC .

The Government submitted that throughout his detention in FAC the applicant was held in CARDINAL different cells . The size of each of those cells was over CARDINAL.CARDINAL m² and the occupancy rate ranged from CARDINAL persons , including the applicant . Most of the time the space was CARDINAL m² per person . However , from DATE until DATE the applicant was assigned to cell no . CARDINAL which measured CARDINAL ORG and was shared by CARDINAL detainees , including the applicant . In that particular cell , the space per person did not exceed PERCENT .

On the other hand , the Government stressed that DATE and DATE , DATE and DATE and CARDINAL June and CARDINAL DATE the living conditions provided to the applicant in PERSON had been in compliance with domestic standards .

At the relevant time , CARDINAL sanitary inspections took place in the prison ( DATE and DATE , DATE and DATE ) . The inspections did not reveal any irregularities . The cells in FAC were clean , sufficiently ventilated and lit , and in an overall good condition .

Prisoners had CARDINAL hot shower per week and they entered the bathhouse in groups of a maximum of CARDINAL people .

The applicant had access to the prison ’s “ day - room ” where he could watch television or play games and to a QUANTITY - large fitness room , where he could play volleyball and practise other sports . In addition , prisoners were entitled to an hour long outdoor exercise in CARDINAL of QUANTITY . CARDINAL of the yards in question measured CARDINAL and CARDINAL ORG respectively . The strolling paths within these yards were CARDINAL and QUANTITY long respectively and QUANTITY wide . The other QUANTITY measured CARDINAL ORG each . The strolling paths within these yards were fiftysix metres long and QUANTITY wide . The outdoor exercise took place in groups of a maximum of QUANTITY prisoners .

Meals in ORG were served CARDINAL times a day inside the cells . At lunchtime prisoners received a hot meal . The food served in prison was tasty and of a good nutritional value .

NORP The applicant submitted that his cell during his first detention in FAC measured CARDINAL m² and was shared by CARDINAL persons , including the applicant ( CARDINAL m² per person ) . During his second detention in FAC , the applicant was held in cell no . CARDINAL ward IV , which measured CARDINAL m² and was shared by CARDINAL persons , including the applicant ( CARDINAL m² per person ) .

According to the official data obtained by the applicant ’s lawyer from ORG the rate of overcrowding in FAC was PERCENT during the applicant ’s first detention , PERCENT during his second and third periods of detention and PERCENT during his fourth detention in this facility .

From DATE until DATE , from DATE until DATE , from CARDINAL until DATE , from CARDINAL May until DATE , from CARDINAL until DATE , from DATE until CARDINAL DATE , and from DATE until DATE the applicant was detained in FAC .

The Government submitted that throughout his detention in ORG the applicant was held in CARDINAL different cells . The size of those cells ranged from CARDINAL to CARDINAL.CARDINAL m² . They submitted that the occupancy rate ( the number of prisoners in a cell and the living space per prisoner ) during the first CARDINAL of the applicant ’s detention terms in ORG had not been recorded .

During the applicant ’s third , fourth , fifth and sixth periods of detention the number of the applicant ’s cellmates ranged from CARDINAL to CARDINAL . The space per person during that time was usually CARDINAL . However , for DATE in DATE and DATE in DATE the applicant shared his cells with CARDINAL other inmates and the surface available was CARDINAL m² per person . In addition , the number of the applicant ’s cellmates during DATE between DATE had not been recorded .

The Government acknowledged the fact that , at the relevant time , the remand centre was facing a problem of overcrowding . On DATE and CARDINAL DATE the governor decided to reduce the available space per person to less than the statutory standard of QUANTITY m² . On each occasion a competent penitentiary judge was duly informed about the situation .

On the other hand , the ORG submitted a letter from the administration of ORG dated DATE , which stated that during an unspecified period the applicant was assigned to a cell measuring nearly CARDINAL.CARDINAL m² . He had shared that cell with CARDINAL inmate .

The Government did not submit any other information as to the occupancy rate in ORG during the applicant ’s detention from DATE until DATE .

At the relevant time CARDINAL sanitary inspections were carried out by LOC or Regional Sanitary Inspectorate ( NORP SanitarnoEpidemiologiczna ) : CARDINAL in DATE , CARDINAL in DATE , CARDINAL in DATE and CARDINAL by DATE . The cells were clean and sufficiently ventilated and lit .

The applicant could take a minimum of CARDINAL hot shower per week . Detainees accessed the shower room in a number equal to the number of shower heads in a particular unit .

The bed linen was usually changed once DATE , more often if it was considered necessary .

The applicant had a right to an TIME - long outdoor exercise in a group of CARDINAL in CARDINAL of QUANTITY . The size of the yards ranged from CARDINAL to CARDINAL m² .

Meals were served CARDINAL times per day inside cells . They were tasty and of a good nutritional value . A hot meal was always served at lunchtime .

The applicant submitted that ORG had been overcrowded .

To that effect he furnished a copy of a document , which had been issued by the administration of ORG , containing the list of the applicant ’s cells . The history of the applicant ’s transfers within the remand centre , namely the ORG numbers and the dates of the applicant ’s placement , is concordant with the data submitted by the Government . The document submitted by the applicant , however , also shows the information which was missing from the records submitted by the Government , namely the occupancy rate of the applicant ’s cells during the first CARDINAL periods of his detention .

According to that information , from CARDINAL until DATE the applicant was placed in cell no . CARDINAL of ward II ( FAC ) , which measured CARDINAL ORG and was occupied by CARDINAL people , including the applicant ( CARDINAL m² per person ) . From CARDINAL DATE until DATE he was held in cells no . CARDINAL and CARDINAL of ward V ( PCCARDINAL ) . Both cells measured PERCENT and they were occupied by CARDINAL detainees ( CARDINAL m² per person ) . DATE until DATE the applicant was assigned to cell no . CARDINAL in ward LANGUAGE ( PCCARDINAL ) , which measured CARDINAL m² and was shared by CARDINAL people including the applicant ( CARDINAL m² per person ) . CARDINAL until DATE he was in cell no . CARDINAL of ward II ( PCCARDINAL ) . This cell measured CARDINAL ORG and was occupied by CARDINAL persons including the applicant ( QUANTITY ORG per person ) . From CARDINAL until DATE the applicant was detained in cell no . CARDINAL of ward V ( PWCARDINAL ) , which measured CARDINAL m² and was occupied by CARDINAL people , including the applicant ( CARDINAL m² per person ) .

In the second period of his detention in FAC , the applicant was assigned to the following cells : from CARDINAL until DATE – to cell no . CARDINAL of ward III ( PWCARDINAL ) , which measured CARDINAL m² and was occupied by CARDINAL people , including the applicant ( CARDINAL m² per person ) ; from DATE until DATE to cell no . CARDINAL in ward V ( PZCARDINAL ) , which measured CARDINAL m² and was shared by a total number of CARDINAL detainees ( CARDINAL m² per person ) ; and from DATE until DATE to cell no . CARDINAL in ward V ( PZCARDINAL ) , which measured CARDINAL m² and was occupied by a total number of CARDINAL people ( CARDINAL m² per person ) .

Lastly , the document submitted by the applicant contains a detailed list of the applicant ’s cells during the last period of his detention in FAC , namely from DATE until DATE .

In the relevant period of DATE the applicant was moved CARDINAL times between different cells . The size of the cells in question ranged from CARDINAL to CARDINAL.CARDINAL ORG and their occupancy rate , from CARDINAL to QUANTITY persons . In most of the cells the space per person oscillated around CARDINAL.CARDINAL m² . In addition , for a total number of DATE the applicant was detained in cells in which the space per person was CARDINAL m² . His detention in cells , in which the space per person was slightly over CARDINAL m² , amounted to DATE .

The document also reveals that from CARDINAL until DATE the applicant was detained alone in a cell , measuring nearly CARDINAL m² .

According to the official data obtained by the applicant ’s lawyer from ORG the rate of overcrowding in FAC was PERCENT during the applicant ’s first detention , PERCENT during his second detention , PERCENT during his third detention , PERCENT during his fourth detention and PERCENT during his fifth detention in this facility .

Finally , from DATE until DATE , from DATE until DATE , from CARDINAL until DATE , from DATE until DATE , from CARDINAL until DATE , and , from CARDINAL DATE until CARDINAL DATE , the applicant was detained in FAC .

The Government submitted that throughout his detention in FAC the applicant was moved CARDINAL times between different cells . The size of those cells varied CARDINAL . The occupancy rate had not been recorded , although the applicant was twice kept in solitary confinement .

The Government submitted that the problem of overcrowding had been recorded for the first time in DATE . It persisted until DATE , with the exception of CARDINAL periods of downslide , namely from DATE until DATE and from DATE until DATE . DATE , the remand centre ’s governor issued CARDINAL decisions on reducing the statutory standard of CARDINAL m² per detainee and informed the competent penitentiary judge accordingly .

In the absence of the necessary data , the Government could not rule out that during a certain time , the applicant was detained in cells in which the space per person was below CARDINAL m² . In particular , at the relevant time there was a practice of placing CARDINAL detainees in CARDINAL - person cells .

On the other hand , the Government stressed that during the applicant ’s last period of detention in FAC ( from DATE until DATE ) , he shared his cells only with CARDINAL person , thus having CARDINAL m² of individual space .

At the relevant time , regular sanitary inspections were carried out in the remand centre by ORG ( PERSON ) : CARDINAL in DATE , CARDINAL in DATE , CARDINAL in DATE and CARDINAL in DATE . The inspections did not reveal any irregularities . The cells were clean and well - equipped . They were sufficiently lit and ventilated .

The applicant could take a minimum of CARDINAL hot shower per week . Detainees accessed the shower room in a number equal to the number of shower heads in a particular unit .

The applicant had a right to an TIME - long outdoor exercise in a spacious yard together with a group of CARDINAL fellow inmates . In addition , he had a right to spend TIME in the remand centre ’s “ FAC ” CARDINAL times per week .

Bed linen was changed once DATE . Prisoners’ underwear , towels and dishcloths were washed DATE .

Meals , which conformed to the standard quality requirements , were served inside the cells .

The applicant submitted that his cell during his first detention in the FAC measured CARDINAL ORG and was shared by a total number of CARDINAL people ( CARDINAL m² per person ) . During the applicant ’s second detention in FAC he was held in cell no . CARDINAL ward V , which measured CARDINAL ORG and was shared by CARDINAL persons ( CARDINAL.CARDINAL m² per person ) . The applicant stressed that the problem of overcrowding in that facility persisted from DATE until DATE . The only periods when ORG was not overcrowded were from DATE until DATE and DATE until DATE .

The applicant furnished a copy of a letter from the governor of ORG dated DATE . It was stated in it that the applicant had been detained in cells in which the statutory space of CARDINAL m² per person had been reduced due to the general problem of overcrowding persisting in the country . At the relevant time , and with the exception of the period from DATE until DATE , the maximum allowed population rate in the remand centre was exceeded by PERCENT , depending on the specific moment .

Moreover , the official statistics from ORG revealed that the rate of the overcrowding in FAC was at PERCENT during the applicant ’s first detention , CARDINAL or PERCENT ( the document reveals contradictory figures ) during his second detention , PERCENT ( contradictory figures ) during his third detention , PERCENT during his fourth detention , and PERCENT during his fifth detention in this facility . During DATE of the applicant ’s detention in FAC , the occupancy rate was PERCENT below the maximum allowed capacity of this establishment .

It appears that from CARDINAL DATE until DATE the applicant was detained in FAC .

The Government did not make any submissions with reference to ORG .

The applicant submitted that he had been assigned to cell no . CARDINAL in ward III . The cell in question measured CARDINAL m² and was occupied by CARDINAL inmates , including the applicant ( CARDINAL.CARDINAL m² per person ) . The toilet annex took up QUANTITY of the cell ’s space . There were also CARDINAL bunk beds , CARDINAL tables and CARDINAL stools . The applicant submitted that his cell was cramped and overcrowded .

The applicant submitted a copy of a letter of CARDINAL DATE sent by ORG administration to ORG . It was stated in the letter that from DATE until DATE the applicant had been detained in cell no . DATE , which measured CARDINAL ORG and was shared by CARDINAL people , including the applicant ( CARDINAL m² per person ) . It was also noted that on DATE a competent penitentiary judge had again been informed of the fact that Kamińsk Prison was overcrowded and that that problem would persist for DATE .

In addition , according to the official statistics from ORG the overcrowding in FAC at the time of the applicant ’s incarceration there reached PERCENT .

It appears that from DATE until an unspecified date in lateCARDINAL the applicant was detained in FAC .

The Government submitted that as of DATE the applicant had been detained in a cell in which the minimum statutory standard of CARDINAL m² of space per person had been respected .

The applicant submitted the official statistics from ORG which showed that the overcrowding in FAC at the time of his incarceration there reached PERCENT .

NORP Moreover , the applicant specified that he was at first detained in cell no.CARDINAL in wing PERSON cell in question measured CARDINAL ORG and was shared by CARDINAL prisoners including the applicant ( CARDINAL m² per person ) . He was then transferred to cell no . CARDINAL in wing PERSON That cell measured CARDINAL ORG and was shared by CARDINAL people including the applicant ( CARDINAL m² per person ) .

Lastly , the applicant confirmed that from DATE until an unspecified date he had been assigned to a cell in which the space of QUANTITY m² was available for each prisoner .

From an unspecified date in DATE until DATE the applicant was detained in ORG .

The Government did not make any submissions with reference to this detention facility .

The applicant submitted that in ORG he had been detained subsequently in : cell no . CARDINAL in wing CARDINAL , cell no . CARDINAL in wing ACARDINAL and cell no . CARDINAL in wing CCARDINAL . The first cell measured CARDINAL m² and was shared by CARDINAL people including the applicant ( CARDINAL m² per person ) . The second of the mentioned cells measured CARDINAL m² and was shared by CARDINAL prisoners including the applicant ( CARDINAL m² per person ) . Lastly , the third cell measured CARDINAL ORG and was shared by CARDINAL people including the applicant ( CARDINAL m² per person ) .

Finally , as it appears , on CARDINAL DATE the applicant was committed to ORG , where he remained .

The parties did not make any submissions with regard to this detention facility .

The applicant lodged numerous complaints about the conditions of his detention with the domestic authorities . He also applied on numerous occasions for a break in serving the sentence on account of the poor conditions of detention , as well as his difficult family situation . All of the applicant ’s complaints and requests were to no avail .

The Government in their submissions to the ORG , acknowledged the fact that the applicant had lodged numerous complaints about the various aspects of his detention . The complaints lodged on CARDINAL , DATE and DATE and CARDINAL May CARDINAL , DATE , CARDINAL May and DATE , and CARDINAL May and DATE related , among other issues , to the problem of overcrowding and inadequate living conditions in PERSON , PERSON and ORG . The relevant authorities , including the competent ORG , considered them all manifestly ill - founded .

The applicant , for his part , submitted a copy of a letter of DATE of the Deputy Director of ORG ( PERSON ) who had acknowledged the existence of overcrowding in FAC at a level of PERCENT above the norm .

DATE . Likewise , the problem of overcrowding was acknowledged by the Director of ORG in his letter of DATE , which had been issued in reply to the applicant ’s complaint of DATE . However , the complaint that the applicant had diminished contact with the warden due to overcrowding was found to be unsubstantiated . It was indicated that the applicant had CARDINAL meetings with the warden in DATE .

The applicant ’s requests to be granted a break in serving the sentence were dismissed as manifestly illfounded . The most recent decision was delivered by ORG on DATE .

In his additional submissions of CARDINAL DATE the applicant stated that on DATE he had lodged with ORG ( PERSON ) an action for compensation under LAW and CARDINAL of LAW in conjunction with LAW . The applicant sued ORG for the alleged damage resulting from overcrowding and inadequate living conditions in all the detention facilities in which he had so far been detained .

It appears that the case is currently pending before the court of firstinstance .

On DATE the applicant submitted new complaints related to the criminal proceedings against him . However , despite the ORG ’s request he failed to provide copies of the relevant domestic courts’ decisions delivered in the course of the impugned proceedings .

It appears that on DATE ORG convicted the applicant of unspecified offences and sentenced him to four years’ imprisonment ( no . II K CARDINAL/CARDINAL ) . It also appears that on DATE the ORG dismissed an appeal against that judgment ( no . Ka CARDINAL ) . The applicant submitted that he had not been present at the appeal hearing . He was , however , represented by a legalaid lawyer and , ultimately , he was informed about the outcome of the case . The applicant ’s conviction became final as he failed to lodge a cassation appeal . It appears that the applicant subsequently asked the ORG ( PERSON ) to lodge an extraordinary cassation appeal against the secondinstance judgment , but his request was to no avail .

Article CARDINAL of the LAW reads as follows :

“ GPE shall be a democratic ORG ruled by law and implementing the principles of social justice . ”

LAW reads :

“ No one shall be subjected to torture or cruel , inhuman , or degrading treatment or punishment . ”

Article CARDINAL of the LAW , in its relevant part , provides :

“ CARDINAL . Anyone deprived of liberty shall be treated in a humane manner . ”

Article CARDINAL of LAW ( NORP karny wykonawczy – “ the Code ” ) provides :

“ CARDINAL . A sentenced person shall be placed in an individual cell or a cell shared with other inmates .

NORP The area of the cell shall be QUANTITY per detainee . ”

Article CARDINAL of the LAW provides :

“ CARDINAL . In particularly justified cases a governor of a prison or remand centre may decide to place detainees , for a specified period of time , in conditions where the area of the cell is QUANTITY per person . Any such decision shall be promptly communicated to a penitentiary judge .

NORP The Minister of Justice shall determine , by means of an ordinance , the rules which are to be followed by the relevant authorities in a situation where the number of persons detained in prisons and remand centres exceeds on a nationwide scale the overall capacity of such establishments ... ”

DATE . On the basis of LAW , the Minister of ORG issued the LAW of DATE on the rules to be followed by the relevant authorities when the number of persons detained in prisons and remand centres exceeded on a nationwide scale the overall capacity of such establishments ( ORG w sprawie trybu postępowania właściwych organów w wypadku , gdy liczba osadzonych w zakładach karnych lub aresztach śledczych przekroczy w skali ORG ogólną pojemność tych zakładów DATE “ the DATE Ordinance ” ) . On DATE the Minister of ORG issued a new ordinance with the same title ( “ the DATE LAW ) , which replaced the previous ordinance . It entered into force on DATE .

Paragraph CARDINAL.CARDINAL of this Ordinance provided :

“ In the event that the number of detainees placed in prisons and remand centres , as well as in subordinate detention facilities , hereinafter referred to as ‘ establishments’ , exceeds on a nationwide scale the overall capacity of such establishments , the Director General of ORG , within DATE from DATE the capacity is exceeded , shall convey the relevant information to the Minister of ORG , the regional directors of ORG and the governors of the establishments ... ”

Paragraph CARDINAL of the Ordinance read :

“ CARDINAL . Having received the relevant information , the regional director of the prison service and the governor of the establishment are under a duty , each within their own sphere of competence , to take action in order to adapt quarters not otherwise included in the establishment ’s [ accommodation ] capacity , to comply with the conditions required for a cell .

In the event that the establishment ’s capacity is exceeded , detainees shall be placed in supplementary cells for a specified period of time .

In the event that the additional accommodation in the supplementary cells is used up , detainees may be placed in conditions where the area of a cell is QUANTITY per person . ”

Detention and prison establishments in GPE are supervised by penitentiary judges who act under the authority of the Minister of ORG .

Under LAW ( “ the LAW ” ) a convicted person is entitled to make applications , complaints and requests to the authorities enforcing the sentence .

Article CARDINAL , paragraphs CARDINAL and CARDINAL , of the LAW provides that a convicted person can challenge before a court any unlawful decision issued by a judge , a penitentiary judge , a governor of a prison or a remand centre , a regional director or ORG or a court probation officer . Applications relating to the execution of prison sentences are examined by a competent penitentiary court .

The remainder of LAW reads as follows :

“ CARDINAL . Appeals against decisions [ mentioned in paragraph CARDINAL ] shall be lodged within DATE of the date of the pronouncement or the service of the decision ; the decision [ in question ] shall be pronounced or served with a reasoned opinion and an instruction as to the right , deadline and procedure for lodging an appeal . An appeal shall be lodged with the authority which issued the contested decision . If [ that ] authority does not consider the appeal favourably , it shall refer it , together with the case file and without undue delay , to the competent court .

The ORG competent for examining the appeal may suspend the enforcement of the contested decision ...

Having examined the appeal , the court shall decide either to uphold the contested decision , or to quash or vary it ; the court ’s decision shall not be subject to an interlocutory appeal . ”

In addition , under LAW , a penitentiary judge is entitled to make unrestricted visits to detention facilities , to acquaint himself with documents and to be provided with explanations from the management of these establishments . A penitentiary judge also has the power to communicate with persons deprived of their liberty without the presence of third persons and to examine their applications and complaints .

LAW in its relevant part reads as follows :

“ CARDINAL . A penitentiary judge shall quash an unlawful decision [ issued by , inter alia , the governor of a prison or remand centre , the Regional Director or ORG ] concerning a person deprived of his liberty .

An appeal to the penitentiary court lies against the decision of a penitentiary judge ...

In the event of finding that the deprivation of liberty is not in accordance with the law , a penitentiary judge shall , without undue delay , inform the authority [ in charge of the person concerned ] of that fact , and , if necessary , shall order the release of the person concerned . ”

LAW in its relevant part provides :

“ CARDINAL . If in the opinion of the penitentiary judge it is necessary to issue a decision which would exceed his competence , in particular an administrative decision , [ the penitentiary judge ] shall transfer his observations and conclusions concerning the matter to the competent authority .

NORP The competent authority shall inform the penitentiary judge , within DATE or within another time - limit determined by the latter , about their position . Should the penitentiary judge consider this position unsatisfactory , he shall transfer the matter to the [ superior ] authority ; the superior authority shall inform the penitentiary judge about the outcome of the case .

In the event of the repetition of flagrant omissions in the functioning of a prison , remand centre or another establishment , in which persons deprived of liberty [ are quartered ] , or if the conditions existing [ there ] do not secure the respect of the rights of persons who are held there , a penitentiary judge shall appeal to the competent superior authority to [ remedy the situation ] within a set deadline . Should the [ situation be not resolved ] within the deadline , a penitentiary judge shall appeal to a competent minister to suspend the activity or to close down entirely or partly the prison , remand centre or establishment concerned . ”

Lastly , LAW , paragraph CARDINAL , of the Code guarantees a convicted person a right to lodge applications , complaints and requests with other competent authorities , such as the management of a prison or remand centre , heads of units of ORG , penitentiary judges , prosecutors and the ORG . Detailed rules on the procedure are laid down in the Ordinance of the Minister of ORG issued on CARDINAL DATE on dealing with applications , complaints and requests by persons detained in prisons and remand centres ( ORG w sprawie sposobów załatwiania wniosków , skarg i próśb osób osadzonych w zakładach karnych i aresztach śledczych – “ the DATE LAW ) .

DATE the Civil Code contains a non - exhaustive list of socalled “ personal rights ” ( prawa osobiste ) . This provision states :

“ The personal rights of an individual , such as , in particular , health , liberty , honour , freedom of conscience , name or pseudonym , image , secrecy of correspondence , inviolability of the home , scientific or artistic work , [ as well as ] inventions and improvements , shall be protected by the civil law regardless of the protection laid down in other legal provisions . ”

Article CARDINAL , paragraph CARDINAL , of the Civil Code provides :

“ A person whose personal rights are at risk [ of infringement ] by a third party may seek an injunction , unless the activity [ complained of ] is not unlawful . In the event of infringement [ the person concerned ] may also require the party who caused the infringement to take the necessary steps to remove the consequences of the infringement ... In compliance with the principles of this LAW [ the person concerned ] may also seek pecuniary compensation or may ask the court to award an adequate sum for the benefit of a specific public interest . ”

Article CARDINAL § CARDINAL of LAW , applicable in the event a person suffers a bodily injury or a health disorder as a result of an unlawful act or omission of a ORG agent , reads as follows :

“ ... [ T]he court may award to the injured person an adequate sum in pecuniary compensation for the damage suffered . ”

Under LAW , a person whose personal rights have been infringed may seek compensation . That provision , in its relevant part , reads :

“ The court may grant an adequate sum as pecuniary compensation for non - material damage ( krzywda ) suffered to anyone whose personal rights have been infringed . Alternatively , the person concerned , regardless of seeking any other relief that may be necessary for removing the consequences of the infringement sustained , may ask the court to award an adequate sum for the benefit of a specific public interest ... ”

In addition , Articles CARDINAL et seq . of the NORP LAW provide for the ORG ’s liability in tort .

Article CARDINAL § CARDINAL of the Civil Code formerly provided :

“ The State Treasury shall be liable for damage ( szkoda ) caused by an agent of the ORG in carrying out acts entrusted to him . ”

After being amended in DATE , LAW provides :

“ ORG , or [ as the case may be ] a self - government entity or other legal person responsible for exercising public authority , shall be liable for any damage ( szkoda ) caused by an unlawful act or omission [ committed ] in connection with the exercise of public authority . ”

In their submissions on the admissibility and the merits of the case the Government referred to the judgment of ORG of DATE ( see paragraph CARDINAL below ) . They further referred to CARDINAL groups of civil law cases in which domestic courts had examined claims for compensation brought by former detainees on account of the alleged infringement of their personal rights . To that effect the Government submitted copies of CARDINAL judgments which were delivered by domestic courts in DATE and DATE and CARDINAL final judgments which were delivered in DATE ( see paragraphs CARDINAL and CARDINAL below ) .

On DATE ORG recognised for the first time the right of a detainee under LAW , read in conjunction with LAW , to lodge a civil claim against ORG for damage resulting from overcrowding and inadequate living and sanitary conditions in a detention establishment .

That judgment originated from the civil action brought by a certain DATE , who was remanded in custody shortly after he had suffered a complicated fracture of his leg and arm . The plaintiff argued that he had not received adequate medical care in detention and that he had been detained in overcrowded cells in poor sanitary conditions .

ORG quashed the second - instance judgment in which the applicant ’s claim had been dismissed . ORG held that the case should have been examined under LAW in conjunction with LAW of LAW , and that it was the respondent who had the burden of proving that the conditions of detention had been in compliance with the statutory standards and that the plaintiff ’s personal rights had not been infringed . The case was remitted to the appeal court .

On DATE ORG examined the case under LAW in conjunction with LAW , as interpreted by ORG . The appeal court reiterated that overcrowding coupled with inadequate living and sanitary conditions in a detention facility could give rise to degrading treatment in breach of a detainee ’s personal rights . The court condemned the practice of maintaining high rates of occupancy in detention facilities throughout the country and stressed that the minimum standard of CARDINAL m² per person was to be reduced only in exceptional circumstances and for a short period of time . On the other hand , ORG observed that in the light of ORG established case - law , a trial court did not have a duty to award compensation for every infringement of a personal right . One of the main criteria in assessing whether or not to award compensation for a breach of a personal right was the degree of fault on the part of a respondent party . The court held that in relation to overcrowding , no fault could be attributed to the management of a particular detention facility since the management were not in a position to refuse new admissions even when the average capacity of a detention facility had already been exceeded . Considering the large scale of the problem in the country and the fact that the competent authorities had not acted with a particular intent to humiliate the plaintiff or in bad faith , the appeal court found that awarding compensation for a breach of personal rights on account of overcrowding and poor conditions of detention would contradict the universal sense of justice . Ultimately , the case was dismissed .

In CARDINAL of the other cases cited by the Government , which had been examined by domestic courts in DATE , DATE and DATE , the plaintiffs , nonsmokers detained with smoking inmates , had been awarded compensation ( raging from MONEY ) because it had been found that they were at risk of suffering or had actually suffered a health disorder . The first of those judgments was delivered by ORG on DATE .

Another of the early cases referred to concerned a prisoner who had suffered food poisoning in prison ( plaintiff , a certain ORG ; judgment of ORG of DATE ) and another concerned a detainee who had been beaten up by his fellow inmate ( plaintiff , a certain ORG ; judgment of ORG of DATE ) .

In another case , brought by a certain PERSON , who had been detained for DATE in an overcrowded and insanitary cell , ORG ( judgment of DATE ) granted partial compensation on account of the fact that the prison ’s governor had failed to inform the competent penitentiary judge , in compliance with the applicable procedure , about the problem of overcrowding at the time the plaintiff was serving his sentence there .

In the case of a certain ORG ( judgment of DATE ) held that there had been no legal basis to grant compensation for detaining the plaintiff in an overcrowded cell . The court observed that the protection of personal rights offered by LAW was conditional on CARDINAL elements : firstly , there must have been an infringement or a risk of infringement of the right protected ; secondly , the infringement must have resulted from an unlawful act or omission . It was reiterated that an act or omission was not unlawful , even though it might breach personal rights , as long as it was based on a valid legal provision . The court further noted that the plaintiff had the burden of proving the infringement or the risk of infringement while the respondent had the burden of proving that his acts or omissions were not unlawful . ORG held that detaining the plaintiff in conditions below the minimum standard established by LAW was not unlawful , as it was regulated by the DATE Ordinance .

In the case of a certain PERSON the ORG ( judgment of DATE ) awarded the applicant compensation in the amount of ORG CARDINAL,CARDINAL because the plaintiff was found to have been at a real risk of contracting a disease from his HIV positive inmates and had experienced significant psychological suffering .

Lastly , in CARDINAL judgments which were delivered by the second - instance courts in DATE the plaintiffs ( W.W. , ORG , GPE and PERSON ) were awarded compensation ( ranging from MONEY to PLN CARDINAL,CARDINAL ) on account of the infringement of their personal rights which they had suffered because of the overcrowding and insanitary conditions in their prison cells , and additionally in CARDINAL case , of the deterioration of the plaintiff ’s health .

In the CARDINAL final judgments delivered in DATE , the civil courts awarded compensation ( ranging from ORG MONEY to PLN CARDINAL,CARDINAL ) to plaintiffs who proved that they had have been detained in overcrowded and insanitary cells in certain cases , together with smokers or persons with hepatitis C.

On DATE the ORG made an application under LAW , read in conjunction with LAW , to ORG , asking for the DATE Ordinance to be declared unconstitutional . More specifically , the ORG asked for it to be declared incompatible with ORG DATE and CARDINAL of the LAW . In particular , the ORG challenged paragraph CARDINAL ) of the DATE Ordinance , which allowed the prison authorities to place a detainee in a cell where there was an area of CARDINAL m² per person , for an indefinite period of time . This , in his opinion , was contrary to the interim nature of LAW and led to the legitimisation of the chronic overcrowding in detention facilities .

On DATE the ORG limited the scope of his initial application , asking ORG ( skarga konstytucyjna ) to declare paragraph CARDINAL ) of the DATE Ordinance to be in breach of LAW .

On DATE , DATE set for ORG hearing , the Minister of ORG abrogated the impugned Ordinance in its entirety and issued a new one under the same title and with immediate effect ( “ the DATE Ordinance ” ) . The provisions of the new DATE Ordinance remained the same as in the previous instrument , except for paragraph CARDINAL ) , which read as follows :

“ In the event that the additional accommodation in the supplementary cells is used up , detainees may be placed , for a specified period of time , in conditions where the area of a cell is QUANTITY per person . ”

As a consequence of these changes , on DATE the ORG withdrew his application .

On DATE a certain PERSON , who was at the time in prison , made a constitutional complaint ( skarga konstytucyjna ) under LAW , read in conjunction with LAW of the LAW , asking for LAW to be declared unconstitutional . He alleged that the impugned provision infringed , inter alia , the prohibition of torture and inhuman or degrading treatment as derived from ORG CARDINAL of the LAW . He challenged LAW in particular in so far as it allowed for the placement of detainees for an indefinite period of time in cells below the statutory size .

On DATE ORG held , inter alia , that the impugned LAW was in breach of LAW torture or cruel , inhuman , or degrading treatment or punishment ) , LAW ( right of a detainee to be treated in a humane manner ) and LAW ( the principle of the rule of law ) of the LAW . The court stressed that the provision lacked clarity and precision , which allowed for a very broad interpretation .

ORG found that , in effect , the provision in question allowed for an indefinite and arbitrary placement of detainees in cells below the statutory size of CARDINAL m² per person , thus causing chronic overcrowding in NORP prisons and exposing detainees to the risk of inhuman treatment . ORG expressed its view as follows :

“ In the opinion of ORG , the text of the impugned LAW and its interpretation in practice make this provision incompatible with Articles CARDINAL and CARDINAL paragraph CARDINAL of the LAW . Overcrowding in prisons , resulting from the implementation of the impugned provision , may lead to inhuman treatment of prisoners . It is difficult to imagine [ that a person could be afforded ] humane treatment in a cell , in which the space per person is CARDINAL m² ... “

The court also observed that the overcrowding of detention facilities had to be treated as a serious problem , since it posed a permanent threat to the rehabilitation of prisoners . This view was expressed , inter alia , in the following paragraph :

“ The postulate of humane treatment entails also the requirement of affording to detainees educational activities , which [ would ] prepare them for life after release from prison and prevent them from relapsing into crime , allowing for the achievement of the aims of a punishment . ”

ORG also made the following reference to LAW :

“ ORG , while interpreting constitutional provisions resorts to , both , the substantive law of LAW and acquis humanitarire which has been developed on the basis of LAW ] . The court will not , however , consider the question of a violation of the ORG itself , since this does not lie within its competencies . ”

Moreover , in the view of ORG , the overcrowding in itself could be qualified as inhuman and degrading treatment . If combined with additional aggravating circumstances , it might even be considered as torture . In that connection the court noted that already the minimum statutory standard of CARDINAL m² per person was CARDINAL of the lowest in LOC .

ORG further stressed that the provision in question was meant to be applied only in particularly justified cases , for example the occurrence of an engineering or building disaster in prison . Such a provision should not leave any doubt as to the definition of those permissible circumstances , the minimum size of the cell and maximum time when the new standards would apply . It should also lay down clear principles on how many times a detainee could be placed in conditions below the standard requirements and the precise procedural rules to be followed in such cases . In this connection , the court made a following remark :

“ ORG does not exclude , however , a possibility of placing convicted persons on a temporary basis in cells , in which the space per person would be below CARDINAL m² ( [ derived from ] LAW ) . [ Such possibility could occur ] in genuinely exceptional circumstances ( for example , a sudden increase of crime rate and the number of judgments imposing a prison sentence ) . The principles governing a temporary placement of convicted persons in such cells should , nevertheless , be clearly indicated . [ The necessary ] regulations can not [ be dubious ] as to the exceptional character of the situation [ in question ] , the maximum time in which a detainee can be placed in a cell with reduced space , the possibility and eventual principles and procedure regulating multiple placements in such cells . ”

The court further observed that , conversely , in practice LAW gave a wide discretion to prison governors to decide what constituted “ particularly justified circumstances ” and in consequence condoned the permanent state of overcrowding in detention facilities . It allowed for the placement of detainees in a cell where the area was below the statutory size for an indefinite period of time and it did not set a minimum permissible area .

ORG , taking into consideration “ the permanent overcrowding of the NORP detention facilities ” , ruled that the unconstitutional LAW should lose its binding force within DATE from the date of the publication of the judgment . ORG justified the delayed entry into force of its judgment by the need to undertake a series of measures to reorganise the whole penitentiary system in GPE in order to , ultimately , eliminate the problem of overcrowding . It was also noted that , in parallel , a reform of criminal policy was desired with the aim of achieving a wider implementation of preventive measures other than deprivation of liberty . The court observed that an immediate entry into force of its judgment would only aggravate the already existing pathological situation where , because of the lack of cell space in NORP prisons , many convicted persons could not serve their prison sentences . At the time when the judgment was passed , the problem concerned CARDINAL persons . To this end the court made the following observation :

“ ORG has decided , on the basis of LAW , to postpone the date on which the impugned LAW will lose its binding force , taking into consideration the factual situation of the NORP penitentiary system , namely the permanent overcrowding in prisons and the lack of places for serving a prison sentence .

The [ above ] decision ( ... ) results , not even , from the need to amend legal provisions but from the necessity to undertake numerous actions of organisational nature , in order to eliminate overcrowding in prisons . What also seems to be desired is shifting penal policy in the direction of wider use of non - isolation [ preventive ] measures .

An imminent loss of binding force of Article CARDINAL § CARDINAL of LAW would deepen the already existing pathological situation , in which many convicted persons can not serve their [ prison ] sentences because of the lack of space in prisons . This problem concerns currently over CARDINAL convicted persons . Such status quo , in which final judgments of [ criminal ] courts are not enforced , leads to the weakening of the authority of the ORG . ”

In addition , ORG under the principle of the so - called “ right of privilege ” ( przywilej korzyści ) ordered an individual measure , namely that with regard to the author of the constitutional complaint the judgment should enter into force immediately after its publication . The right of privilege is relied on by ORG in the event the proceedings instituted by an individual terminate with a judgment with a delayed entry into force . This principle aims at rewarding the individual who brought the first constitutional complaint concerning a particular matter for his or her proactive attitude .

As regards the context of the case , all the ORG authorities involved in the proceedings before ORG , namely ORG , the ORG and the Speaker of the PERSON , acknowledged the existence of overcrowding in the NORP detention facilities . ORG , in his pleadings of DATE , submitted that the problem of overcrowding in NORP detention facilities had continually existed since DATE , arising from the flawed interpretation of the impugned provision by domestic courts and penitentiary authorities . He also pointed out that , with the rate of overcrowding peaking at PERCENT on DATE , the prison authorities estimated that CARDINAL new places were needed in order to secure to detainees the statutory space of CARDINAL m² per person .

DATE . In DATE , DATE and DATE ORG for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment ( ORG ) carried out CARDINAL periodic visits to different detention establishments in GPE . The following recommendation has been repeatedly included in the relevant ORG ’s reports concerning the visited establishments [ ORG ( CARDINAL ) CARDINAL , ORG ( DATE ) CARDINAL and ORG ( DATE ) CARDINAL ] :

“ Strenuous efforts to be made [ by the NORP authorities ] to reduce the cell occupancy rates , the objective being to provide a minimum of CARDINAL m² of living space per prisoner ”

The relevant extracts from the General Reports prepared by the ORG read as follows :

“ CARDINAL . Overcrowding is an issue of direct relevance to the ORG ’s mandate . All the services and activities within a prison will be adversely affected if it is required to cater for more prisoners than it was designed to accommodate ; the overall quality of life in the establishment will be lowered , perhaps significantly . Moreover , the level of overcrowding in a prison , or in a particular part of it , might be such as to be in itself inhuman or degrading from a physical standpoint .

A satisfactory programme of activities ( work , education , sport , etc . ) is of crucial importance for the well - being of prisoners ... [ P]risoners can not simply be left to languish for DATE , possibly DATE , locked up in their cells , and this regardless of how good material conditions might be within the cells . The ORG considers that one should aim at ensuring that prisoners in remand establishments are able to spend a reasonable part of DATE ( TIME or more ) outside their cells , engaged in purposeful activity of a varied nature ...

Specific mention should be made of outdoor exercise . The requirement that prisoners be allowed TIME of exercise in the open air every day is widely accepted as a basic safeguard ... It is also axiomatic that outdoor exercise facilities should be reasonably spacious ...

Ready access to proper toilet facilities and the maintenance of good standards of hygiene are essential components of a humane environment ...

The ORG would add that it is particularly concerned when it finds a combination of overcrowding , poor regime activities and inadequate access to toilet / washing facilities in the same establishment . The cumulative effect of such conditions can prove extremely detrimental to prisoners . ”

“ CARDINAL . As the ORG pointed out in DATE ORG , prison overcrowding is an issue of direct relevance to the ORG ’s mandate ( cf . ORG ( CARDINAL ) CARDINAL , paragraph CARDINAL ) . An overcrowded prison entails cramped and unhygienic accommodation ; a constant lack of privacy ( even when performing such basic tasks as using a sanitary facility ) ; reduced out - of - cell activities , due to demand outstripping the staff and facilities available ; overburdened health - care services ; increased tension and hence more violence between prisoners and between prisoners and staff . This list is far from exhaustive .

The ORG has been led to conclude on CARDINAL occasion that the adverse effects of overcrowding have resulted in inhuman and degrading conditions of detention ... ”

“ CARDINAL . The phenomenon of prison overcrowding continues to blight penitentiary systems across LOC and seriously undermines attempts to improve conditions of detention . The negative effects of prison overcrowding have already been highlighted in previous ORG ...

In a number of countries visited by the ORG , particularly in central and eastern LOC , inmate accommodation often consists of large capacity dormitories which contain all or most of the facilities used by prisoners on a DATE basis , such as sleeping and living areas as well as sanitary facilities . The ORG has objections to the very principle of such accommodation arrangements in closed prisons and those objections are reinforced when , as is frequently the case , the dormitories in question are found to hold prisoners under extremely cramped and insalubrious conditions ... Large - capacity dormitories inevitably imply a lack of privacy for prisoners in their everyday lives ... All these problems are exacerbated when the numbers held go beyond a reasonable occupancy level ; further , in such a situation the excessive burden on communal facilities such as washbasins or lavatories and the insufficient ventilation for so many persons will often lead to deplorable conditions .

The ORG frequently encounters devices , such as metal shutters , slats , or plates fitted to cell windows , which deprive prisoners of access to natural light and prevent fresh air from entering the accommodation . They are a particularly common feature of establishments holding pre - trial prisoners . The ORG fully accepts that specific security measures designed to prevent the risk of collusion and/or criminal activities may well be required in respect of certain prisoners ... [ E]ven when such measures are required , they should never involve depriving the prisoners concerned of natural light and fresh air . The latter are basic elements of life which every prisoner is entitled to enjoy ... ”

The relevant extracts from ORG on ORG ( CARDINAL , adopted on DATE at the PERSON meeting of ORG ) , read as follows :

All persons deprived of their liberty shall be treated with respect for their human rights .

Restrictions placed on persons deprived of their liberty shall be the minimum necessary and proportionate to the legitimate objective for which they are imposed .

Prison conditions that infringe ORG human rights are not justified by lack of resources .

Life in prison shall approximate as closely as possible the positive aspects of life in the community .

All detention shall be managed so as to facilitate the reintegration into free society of persons who have been deprived of their liberty .

CARDINAL The accommodation provided for prisoners , and in particular all sleeping accommodation , shall respect human dignity and , as far as possible , privacy , and meet the requirements of health and hygiene , due regard being paid to climatic conditions and especially to floor space , cubic content of air , lighting , heating and ventilation .

CARDINAL NORP In all buildings where prisoners are required to live , work or congregate :

a. the windows shall be large enough to enable the prisoners to read or work by natural light in normal conditions and shall allow the entrance of fresh air except where there is an adequate air conditioning system ;

b. artificial light shall satisfy recognised technical standards ( ... )

CARDINAL Specific minimum requirements in respect of the matters referred to in CARDINAL and CARDINAL shall be set in national law .

CARDINAL ORG law shall provide mechanisms for ensuring that these minimum requirements are not breached by the overcrowding of prisons .

CARDINAL Prisoners shall normally be accommodated during TIME in individual cells except where it is preferable for them to share sleeping accommodation .

CARDINAL GPE shall only be shared if it is suitable for this purpose and shall be occupied by prisoners suitable to associate with each other .

CARDINAL All parts of every prison shall be properly maintained and kept clean at all times .

CARDINAL.CARDINAL When prisoners are admitted to prison the cells or other accommodation to which they are allocated shall be clean .

CARDINAL Prisoners shall have ready access to sanitary facilities that are hygienic and respect privacy .

CARDINAL ORG facilities shall be provided so that every prisoner may have a bath or shower , at a temperature suitable to the climate , if possible DATE but at least twice DATE ( or more frequently if necessary ) in the interest of general hygiene .

CARDINAL ORG shall keep their persons , clothing and sleeping accommodation clean and tidy .

CARDINAL The prison authorities shall provide them with the means for doing so including toiletries and general cleaning implements and materials . ”

The Government submitted that the problem of overcrowding in NORP detention facilities had started in DATE . It was at its worse in DATE with the rate of overcrowding peaking at PERCENT . Since then , however , a series of robust measures had been undertaken to fight the problem of overcrowding . As a result , the rates of overcrowding , calculated for all detention facilities , dropped by DATE to PERCENT and calculated only for prisons and remand centres , to PERCENT . According to the statistics published by the prison service authorities , in DATE those rates were PERCENT respectively .

The Law of DATE on the electronic surveillance of persons serving a penalty of imprisonment outside penitentiary facilities ( LOC o wykonywaniu kary pozbawienia wolności poza zakładem karnym w systemie dozoru elektronicznego ; Journal of Laws of DATE , No . CARDINAL , item CARDINAL ; ) enters into force on DATE . The law introduces a possibility of serving short - term sentences under a non - incarceration system . It aims , among other things , at reducing the number of prisoners . In the ORG ’s submission , within DATE after the implementation of the new law , CARDINAL convicts would be taken under the programme , the ultimate target being CARDINAL convicted persons DATE .

In addition , ORG prepared a series of draft laws , amending the relevant provisions of LAW and other relevant acts . The proposed amendments aim at eradicating the problem of overcrowding by employing different means , among others , by empowering the governors of detention facilities to stay the enforcement of a prison sentence in the event that the detention facility , to which a particular convicted person had been assigned , has no vacant places .

In addition , Article CARDINAL of LAW which had been declared unconstitutional and other related provisions are to be repealed or amended in enforcement of the judgment of ORG of DATE ( see paragraph CARDINAL above ) . As of the date of the ORG ’s judgment the draft law in question had not yet been submitted to the ORG .

In the ORG ’s submission a special programme had been drawn up for DATE , with the aim of obtaining CARDINAL new places in detention facilities .

As submitted by the ORG , PERCENT of the target had already been reached within DATE of the programme ’s implementation . In addition , CARDINAL new places were created by DATE in former schools and army compounds in ORG and ORG .

The plan also envisaged to obtain CARDINAL new places by DATE and another CARDINAL by DATE .


Mr PERSON is a NORP national who was born in DATE and lives in GPE département of Essonne ) .

On DATE at TIME he was travelling by motor bicycle along a trunk road near GPE when the police recorded his speed as QUANTITY on a stretch of road where a QUANTITY limit was in force .

Such conduct contravenes LAW , which sets a speed limit of QUANTITY for dual carriageways with a central reservation , Article NORP CARDINAL CARDINAL - CARDINAL , which provides that exceeding the limit by QUANTITY is punishable by the fines prescribed for class CARDINAL offences , and LAW , which provides that where the speed limit has been exceeded by QUANTITY the offender may be temporarily disqualified from driving ( see paragraph CARDINAL below ) .

The applicant refused to pay the fine imposed and on DATE elected to stand trial . On DATE he was summoned to appear in ORG .

In ORG the applicant argued firstly that in law the evidence adduced by the police or gendarmerie was not capable of establishing the offence , given the inaccuracy of the readings taken from the speed - recording device they had used for that purpose . In addition , he contested the lawfulness of Decrees CARDINAL . CARDINAL of DATE and CARDINAL of DATE implementing a points system for driving licences and the applicability of PERSON no . CARDINAL - CARDINAL of DATE introducing a points system for driving licences ( see paragraph CARDINAL below ) .

In a judgment of CARDINAL DATE ORG found Mr PERSON guilty of the offence of exceeding the speed limit by DATE kph . It fined him MONEY and disqualified him from driving for DATE pursuant to Articles R. QUANTITY CARDINAL - CARDINAL , R. CARDINAL CARDINAL - CARDINAL and R. CARDINAL of FAC ( see paragraph CARDINAL below ) .

On the question of the decrees implementing the points system for driving licences , ORG held that criminal courts had jurisdiction to determine the lawfulness of administrative regulatory measures only in so far as such measures were the basis of a prosecution or carried a criminal sanction . Moreover , it followed from LAW , according to which ORG CARDINAL of the Criminal Code and CARDINAL of LAW did not apply to the deduction of driving licence points , that the deduction of such points was not a secondary criminal sanction triggered by a conviction , with the result that its legal basis fell outside the jurisdiction of the criminal courts .

Mr PERSON appealed to ORG contending that the PERSON of DATE was incompatible with LAW in so far as sections CARDINAL and CARDINAL of that PERSON excluded any possibility of judicial review of a measure which was recorded on the national register of driving licences and which restricted rights and deprived the person concerned of the freedom of movement . He also alleged that the above - mentioned decrees on the points system for driving licences and Decree no . CARDINAL of DATE concerning the penalties for exceeding the speed limits were unlawful , and asked ORG to acquit him .

In a judgment of CARDINAL DATE ORG upheld the impugned judgment . It found in the first place that the deduction of driving licence points did not interfere with the freedom of movement as imprisonment , residence restrictions or exclusion from NORP territory would have done . In addition the court held :

“ … the loss of points is not a criminal sanction as it does not have the requisite features , nor is it a secondary criminal sanction triggered by a criminal conviction .

As it has the character of a sanction on account of CARDINAL of its features ( the punitive element ) the loss of points must be regarded in terms of current positive law as an administrative sanction .

There is no doubt that disputes may arise as to the number of points lost or their restitution before or after a further loss for instance .

It must be possible to submit the administrative sanction for review to an impartial and independent tribunal which gives its decision in public .

However , as the law stands , that tribunal can not be the criminal court ; the question of the conformity of Law no . CARDINAL - CARDINAL with a superior law falls outside the jurisdiction of the criminal courts . ”

ORG also dismissed the arguments based on the unlawfulness of Decrees nos . CARDINAL - CARDINAL and CARDINAL of DATE .

The applicant lodged an appeal on points of law , arguing in particular that the PERSON of DATE and the Decrees of DATE and CARDINAL DATE implementing the deduction of points by administrative measure were contrary to LAW . He also pleaded the unlawfulness of LAW DATE penalising speeding and the unreliability of the speed - recording device .

In a judgment of CARDINAL DATE ORG dismissed the appeal . It held as follows :

“ ORG was entitled to dismiss the objections properly raised in the proceedings before it and based on the alleged incompatibility of the Law of DATE introducing the system of points for driving licences with LAW of LAW and the unlawfulness of the decrees of DATE and CARDINAL DATE implementing the deduction of points by administrative measure .

It follows from LAW , according to which ORG CARDINAL of the Criminal Code and CARDINAL of LAW , as then in force , do not apply to the docking of driving licence points , that the latter measure does not have the character of a secondary criminal sanction triggered by a criminal conviction and that accordingly neither its alleged incompatibility with the ORG provision relied on nor its legal basis fall within the jurisdiction of the criminal courts .

In addition , the outcome of a prosecution for a speeding offence , as in the present case , does not depend , within the meaning of LAW which entered into force on DATE , on examination of the provisions implementing the deduction of points … ”

To date , Mr PERSON has not been notified of the docking of any points .

The system of points for driving licences was introduced by PERSON no . CARDINAL - CARDINAL of DATE , which came into force on DATE . This system was supplemented by PERSON no . DATE of DATE , which made provision for automatic processing of points deductions . Responsibility for management of the data was assigned to ORG . The implementing decrees were promulgated on DATE and DATE . Ruling on applications to have these decrees declared void as ultra vires , the ORG d’Etat found them to be lawful .

Under these provisions taken as a whole , each driving licence has an initial allocation of CARDINAL points . Points are then automatically docked if the licence - holder commits CARDINAL of the offences listed in Article CARDINAL of LAW , this being established by the payment of a standard fine or by a conviction which has become final .

The facts constituting the offence are assessed within the unfettered discretion of the criminal court , which establishes them and classifies them before imposing the appropriate criminal penalty . On the basis of the facts established by the criminal court , the administrative authority , here the Minister of the ORG , takes the decision to dock points from the offender ’s driving licence , a decision which is given formal effect by a letter sent to the offender pursuant to LAW .

According to the established case - law of ORG ( judgments of DATE , and CARDINAL and CARDINAL DATE ) and of the ORG d’Etat ( judgment of CARDINAL DATE : ORG ) , the docking of points does not have the character of a secondary criminal sanction triggered by a conviction , but of a purely administrative measure .

NORP The relevant provisions are as follows :

“ The prison sentences and fines applicable to class CARDINAL offences shall be imposed on any driver contravening the provisions of Book CARDINAL concerning :

NORP the speed of motor vehicles , whether or not pulling a trailer :

– where the recorded speed exceeds the speed limit by QUANTITY or more . ”

“ Any driver of a motor vehicle , whether or not pulling a trailer , shall be punishable by the fine applicable to class CARDINAL offences , where the speed of the vehicle is found to exceed the speed limit by QUANTITY . ”

“ Any breach of the Articles of this Code listed below may result in the person concerned being temporarily disqualified from driving where the nature of such breach corresponds to the short description given at DATE Article :

Articles NORP CARDINAL to NORP CARDINAL - CARDINAL : exceeding the speed limit by QUANTITY or more ... ”

“ A number of points shall be allocated to every licence to drive a motor vehicle . CARDINAL or more of these points shall be automatically docked if the licence - holder commits CARDINAL of the offences defined in Article CARDINAL - CARDINAL . When the number of points reaches nil , the licence shall become invalid . ”

“ CARDINAL or more points shall be automatically docked from a driving licence if CARDINAL of the following offences is established :

( a ) offences defined in PERSON , PERSON , PERSON and L. CARDINAL of FAC ;

( b ) offences of unintentional homicide or causing injury while driving a vehicle ; and

( c ) minor road traffic offences , exhaustively listed , likely to endanger the safety of others .

These offences shall be established by means of either the payment of a fixed fine or a final conviction .

The offender shall be duly informed that the payment of the fine constitutes an admission of the offence , and thus entails a number of points being docked from his licence . ”

“ Where CARDINAL of the major offences ( délits ) referred to in LAW has been established , CARDINAL the original number of points shall be docked .

In the case of the minor offences ( contraventions ) , CARDINAL of the original number of points shall be docked .

“ Persons committing one of the offences referred to in LAW CARDINAL may not be exempted from the docking of points from their driving licence by the application of LAW ... Furthermore , the provisions of LAW ... shall not apply to the docking of points from a driving licence . ”

“ Any breach of the ORG listed below , where the nature of such breach corresponds to the short description given at DATE , shall give rise to the automatic docking of points as follows :

CARDINAL points docked for minor offences under the following Articles :

ORG R. CARDINAL to NORP CARDINAL - CARDINAL of FAC : exceeding the speed limit by QUANTITY or more ...

Articles R. CARDINAL to R. CARDINAL - CARDINAL of FAC : exceeding the speed limit by QUANTITY but QUANTITY ...

Articles R. CARDINAL to R. CARDINAL - CARDINAL of FAC : exceeding the speed limit by QUANTITY but QUANTITY , except in the case of drivers covered by the last paragraph of LAW of LAW ...

CARDINAL point docked for minor offences under the following Articles :

Articles R. CARDINAL to R. CARDINAL - CARDINAL of FAC : exceeding the speed limit by QUANTITY ... , except in the case of drivers covered by the last paragraph of LAW of LAW ... ”

“ At the time when the details of an offence are recorded , the driver shall be informed that the offence may result in a number of points being docked if the offence is established by means of either the payment of a fixed fine or a final conviction .

The driver shall also be informed that there is an automatic system for the deduction and restoration of points , and that he can have access to the information concerning him … When the Minister of the ORG notes that an offence entailing the docking of points has been established … , he shall dock the relevant number of points from the offender ’s licence , and inform the offender accordingly in a letter sent by ordinary post . The Minister of the ORG shall take note and inform the person concerned , in the same manner , of any points restored ... ”

“ If the licence - holder does not commit a further offence punishable by the docking of points in DATE following the date on which his last conviction became final … , the original number of points shall be restored to the licence ... The licence - holder may have a number of points restored if he agrees to take a special training course , which must include an element designed to increase awareness of the causes and consequences of road accidents . ”

“ Once the certificate of course attendance is issued , the driver shall be entitled to have CARDINAL points restored to his licence . However , the total number of points on the licence , after these points have been restored , may not exceed CARDINAL . ”

Under the current Criminal Code , which came into force on DATE , temporary or permanent disqualification from driving may be imposed for minor offences ( under LAW ( CARDINAL ) and CARDINAL - CARDINAL ( CARDINAL ) ) ; major offences ( under LAW ( CARDINAL ) and ( CARDINAL ) ) ; and certain serious crimes ( crimes ) such as torture , grievous bodily harm , rape and drug trafficking ( under LAW ) .


Violation of Art. 6-3-c;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses award - domestic proceedings;Costs and expenses award - Convention proceedings

Mr Quaranta , who is an NORP national , was born in DATE at GPE ( GPE ) . He arrived in GPE at a very young age , with his parents . He resides at Vevey in GPE , where he pursues the occupation of assistant plumber .

DATE he was placed in various homes for juveniles . In DATE he was made the subject of an educational assistance order by decision of the President of ORG . On his return to his GPE home , he began , in DATE , a plumber ’s apprenticeship but failed to complete it . He subsequently worked for a number of local companies .

On DATE ORG gave him a suspended sentence of CARDINAL months’ imprisonment , with DATE probation , for aggravated theft , robbery , criminal damage and taking and driving away a motor vehicle without a driving licence . The court decided to treat him on the same footing as his accomplice and accepted his plea of diminished responsibility ( LAW ) , but without ordering an expert psychiatric opinion ; it also took into consideration his youth , the short duration of his criminal activity , his personal situation at the time of the offences , particularly as regards his emotional insecurity , and the lasting improvement observed in his behaviour . This decision is not here in issue .

The applicant , who was suspected of an offence under ORG of DATE ( " LAW " ) , appeared on DATE before the investigating judge ( " juge informateur " ) of the Vevey - Lavaux district . In the course of this sole examination , he requested free legal assistance ( LAW paragraph CARDINAL below ) .

On DATE the investigating judge communicated the application to the President of ORG who rejected it ( LAW paragraph CARDINAL below ) on DATE on the grounds that " the needs of the defence [ did ] not require ... the provision of free legal assistance " and that " the case [ did ] not give rise to particular difficulties " . Mr Quaranta was informed of this decision on DATE and , although advised of his right to appeal against it within DATE to the indictments tribunal , he did not do so .

On DATE he went to ORG to reiterate his request . By a letter of DATE the registrar informed him that he could not lodge such a request until his file had reached the court .

On DATE the investigating judge committed the applicant for trial in ORG , charged with offences under Articles CARDINAL para . CARDINAL , CARDINALrd , CARDINALth and CARDINALth indents , and DATE ( a ) para . CARDINAL of the CARDINAL Act ( see paragraph CARDINAL below ) .

On DATE the applicant repeated his request for free legal assistance , but on DATE the President of ORG refused it for the same reasons as on DATE ( see paragraph CARDINAL above ) .

The hearing began on CARDINAL DATE at TIME ; it lasted TIME . The applicant appeared in person without the assistance of a lawyer . No representative of the public prosecutor ’s office participated in the court proceedings . The main documents in the file were read out , including the committal order . Mr Quaranta answered the President ’s questions and added a few words in his defence .

DATE , after having deliberated , the court found the applicant guilty of taking drugs and drug trafficking and on this account sentenced him to CARDINAL months’ imprisonment ; the sentence was not suspended . In addition , having stressed the relative seriousness of the offences , committed while on probation under the DATE decision , it revoked the suspension order ( Article CARDINAL para . CARDINAL of LAW ) and ordered the activation of the previous sentence ( see paragraph CARDINAL above ) , from which DATE that the accused had spent in detention on remand were to be deducted .

In the grounds of the judgment the court noted that the applicant had taken hashish DATE since DATE and that from DATE he had bought , in small quantities , QUANTITY of this drug , most of which he had sold . It considered that a heavy penalty was called for because of the large quantity of hashish involved and the applicant ’s profit - making intention . However , in mitigation , it took into account his " very precarious " financial position during the period in question ; he was unemployed and he lived , together with his family , on social security benefit .

Through a lawyer , whose services he paid for himself , Mr Quaranta appealed to ORG of ORG .

He pleaded primarily that the court should quash the judgment of CARDINAL DATE . In his view , his youth , his lack of vocational training and his CARDINAL previous convictions ( see paragraph CARDINAL above ) had made the presence of a lawyer necessary for his defence . Furthermore , the contested decision was , he claimed , flawed by reason of the criminal court ’s failure to state why it had considered that the subjective conditions for suspending the sentence were not satisfied .

In the alternative the applicant asked ORG to vary the decision . He argued that the trial court had misapplied LAW inasmuch as , on account of his age and the improvement observed in his behaviour , he should have been left a last chance and been given a further suspended sentence .

On DATE ORG dismissed the appeal on the following grounds :

" Application to have the decision quashed ( recours en nullité )

In a judgment , PERSON , of CARDINAL DATE ... ORG of ORG laid down the following principles :

The conditions set forth in Article CARDINAL para . CARDINAL ORG [ Code of Criminal Procedure ] - the needs of the defence in a criminal prosecution - are the same as those laid down in the case - law concerning the right to free legal assistance as it may be inferred from LAW . The accused must be provided with defence counsel where the sentence which he may expect on conviction can not be suspended because of its length , or where there is a likelihood of an order confining him to a non - penal institution [ mesure privative de liberté ] ; in other cases such a right may be recognised under LAW only where , in addition to the relative seriousness of the case , there are special difficulties from the point of view of the establishment of the facts or the legal issues raised ; it is then necessary to take account of the accused ’s capacities , his experience in the legal field and the measures which appear necessary , in the specific case , to provide for his defence , in particular as regards the evidence which he will have to produce .

In this instance , the length of the term of imprisonment did not in itself rule out the possibility of a suspended sentence . Moreover , the appellant does not claim that free legal assistance was necessary because he expected to receive a sentence which could not be suspended by reason of its length ; there was no difficulty in the establishment of the facts , which , as the appellant states in his memorial , ‘ are admitted in their large NORP ; nor does the appellant rely on legal difficulties , and he is correct in not doing so ; as regards the reasons relating to the accused ’s personal situation , the fact that he is a young adult within the meaning of ORG CARDINAL ter of FAC , and has already been convicted , can not be regarded as constituting a particular difficulty .

The submission is therefore unfounded and must fail .

In so far as the appellant seeks to show that the decision was flawed with regard to points of fact which constituted the basis of the reasoning of the first - instance court in its refusal to suspend the sentence , it may be accepted that this submission raises a question of nullity . But it is unfounded . In fact , in order to establish whether the subjective conditions for suspending a sentence are satisfied , the trial judge must determine whether there are prospects for the defendant ’s lasting improvement , having regard to his past history and his character ( PERSON du Tribunal fédéral , [ ORG , official reports of the judgments of ORG ] CARDINAL IV CARDINAL , ground CARDINAL ; ORG : PERSON , DATE , ad PERSON . : CARDINAL.CARDINAL.CARDINAL ) . In this instance the trial court noted the appellant ’s past history and found that he took and trafficked in drugs . As regards his character , it described his curriculum vitae , his family situation , his reputation and his financial position . The trial court therefore gathered together all the necessary information to make a prognosis . Consequently , the complaint that the decision was flawed in this respect is unfounded and the application to have the decision quashed must fail .

Application to have the decision varied ( recours en réforme )

Tribunaux [ ORG , ORG ] DATE I CARDINAL no . CARDINAL , and the judgments mentioned therein ) . The same principles have been laid down by this Court : the appellate body should intervene only where the trial court misuses its power of assessment or where it has failed to give expressly or impliedly the grounds for its decision ( see ORG with annotations , LAW , p. CARDINAL ) .

In this instance , the grounds for refusing to suspend the sentence were stated by implication and did not constitute misuse of the power of assessment . The quantity of drugs involved was large and the appellant ’s criminal activity continued over a long period , while he was on probation under another sentence . The profit - making purpose is clear . Not even his precarious financial position excuses engaging in such traffic . The information obtained regarding the appellant is not wholly positive . The refusal to suspend the sentence is therefore justified and the application to have the decision varied must therefore also fail . "

The applicant then lodged a public - law appeal with ORG , complaining of the arbitrary application of LAW and of violations of LAW CARDINAL para . CARDINAL ( c ) ( article DATE ) of the Convention . He also sought free legal assistance in the proceedings before ORG .

On DATE ORG allowed his request for free legal assistance , but dismissed the appeal in the following terms :

" CARDINAL . The appellant states that the submissions on which he relies ... overlap for the most part and he gives no specific grounds , as required under LAW para . CARDINAL ( b ) OJ [ Federal Act on the organisation of the courts of DATE ] , concerning the complaint of a violation of ORG . Moreover , the guarantees secured by the provisions of LAW are in part already contained in LAW . They do not therefore in this case have separate effect ( ORG CARDINAL Ia CARDINAL , ground f , CARDINAL Ia CARDINAL , ground CARDINAL ) . The present appeal can consequently be examined only from the point of view of domestic law .

... In other words provision of free legal assistance is indispensable where the case in question is of some gravity and gives rise to difficulties as to the facts or to the law of a kind that the accused is not in a position to deal with ( ORG CARDINAL Ia CARDINAL s. , ground CARDINAL c , CARDINAL Ia CARDINAL et seq . ) . In order to ascertain whether the minimum requirements of LAW are satisfied , it is necessary in each case to assess all the specific circumstances ( ORG CARDINAL Ia CARDINAL ) .

( a ) As far as the length of the likely sentence is concerned ( an order of confinement in a non - penal institution not being relevant to the present case ) , the appellant does not claim that he risked , in the given circumstances and for the only offences of which he was accused , a sentence whose length was in excess of a sentence which might be suspended . Clearly the risk of the activation of the previous suspended sentence ( which was here for a term of CARDINAL months’ imprisonment ) has to be taken into account ( see the PERSON judgment , cited above , ground CARDINAL b ) . But the appellant does not maintain that , in view of this possibility , he in fact risked a custodial sentence of DATE . On the contrary , he relied on the total of CARDINAL months’ imprisonment imposed on him in order to argue that free legal assistance might have made it possible for him to obtain a more lenient sentence . It must therefore be recognised that the overall sentence which he actually risked did not exceed DATE and therefore did not entail the obligation to grant him free legal assistance .

( b ) Evidently , the appellant ’s case must be regarded in itself as relatively serious , for the reasons set out in the judgments of ORG and ORG . However , various considerations which the case - law has identified as militating in favour of according free legal assistance did not apply : ORG was not in detention on remand for a long time , which would have been an impediment to his defence ; he was released on DATE on which he had been arrested ( ORG CARDINAL Ia CARDINAL , ground CARDINAL e , CARDINAL GPE CARDINAL/CARDINAL ) ; the prosecution case was not argued , at the trial hearing on DATE , by a representative of the public prosecutor ’s office ( ORG CARDINAL Ia CARDINAL , ground CARDINAL b , CARDINAL Ia CARDINAL i. f. ) ; despite a certain instability , the appellant did not appear to be a man of diminished capacity either physically or mentally , as can be inferred from the attestation and the statements of his employer , as well as those of the social worker questioned by the police . In addition , his case did not give rise to any difficulty as to the facts , since the investigation concerning him consisted merely of a single interview by the investigating judge . Moreover , he immediately admitted the facts in respect of which he was accused , and which are not in any case contested in the appeal ( ORG CARDINAL Ia CARDINAL , CARDINAL Ia CARDINAL ) .

( aa ) As regards the possibility of diminished criminal responsibility , the appellant relies , in the first place , on the extract from the contested judgment in which it is stated that ‘ from DATE until DATE , and with greater frequency since DATE , the accused has taken hashish on a DATE basis’ , an extract reproduced verbatim from the first - instance judgment of CARDINAL DATE . Secondly , he relies on the Conconi judgment ( ORG CARDINAL IV CARDINAL et seq . ) . It appears , however , from the file of the investigating judge of the LOC district that the above - mentioned statement of fact is not accurate . Questioned on DATE by the police , the appellant stated : ‘ I have been smoking hash for DATE . For DATE I have smoked every day’ . The same day , he answered the investigating judge as follows : ‘ I first came into contact with hashish at DATE ... . Since then I have smoked it from time to time ; it is really only over DATE that I have been smoking hashish almost daily’ . The police report of DATE notes that ORG ‘ stated that he had been smoking hashish for DATE and more regularly for DATE . There is no evidence to the effect that , contrary to his statements , the appellant smoked hashish on a DATE basis ‘ from DATE onwards’ , or indeed that he has in fact smoked DATE since DATE . Moreover , the same evidence makes clear that he only used hashish , and not ‘ hard’ drugs . In any event the committal order and the criminal court ’s judgment of CARDINAL DATE concerned solely hashish .

On issues of law it was unnecessary to appoint a lawyer to act for the appellant in order to draw the ORG ’s attention to the fact that , in accordance with the Conconi judgment , ‘ the court has a duty , where consumption of narcotics is involved , to consider whether the circumstances cast doubt on the accused ’s responsibility’ . Quaranta appeared in no way disturbed and , unlike Conconi , he had never used ‘ hard’ drugs . The cantonal courts , which inquired into the accused ’s character and expressed their views in this respect , therefore clearly considered that there were no grounds for doubting his mental state . Whether or not they were under an obligation to say so expressly in their judgments , as would seem to be a possible inference from the Conconi judgment , is immaterial in relation to an alleged obligation to accord free legal assistance .

( bb ) The question whether the reason for the refusal to suspend the new sentence also necessarily entailed the activation of the previous suspended sentence ( cf . ORG CARDINAL IV CARDINAL/CARDINAL ) was not in itself a complex legal issue which required the granting of free legal assistance . Given the appellant ’s previous history and the nature and the dates of the new offences , there is no evidence that the provision of legal assistance - which ORG moreover received for his appeal to ORG - would have been necessary for the protection of his rights .

On DATE Mr Quaranta went to the prison of GPE ( GPE ) to serve his sentence , but ORG of GPE accorded him a partial pardon by a decree of CARDINAL DATE which was worded as follows :

" The enforcement of the sentences of ten months’ imprisonment , DATE of detention on remand , and CARDINAL months’ imprisonment to which ORG was sentenced by ORG respectively on CARDINAL DATE and CARDINAL DATE shall be suspended as from DATE for DATE from the date of suspension . "

According to the first paragraph of LAW ,

" All NORP nationals shall be equal before the law . In GPE there shall be no vassals ; and there shall be no privileges attaching to a place , birth , persons or families . "

The CARDINAL provisions of LAW relied on or applied in the present case are as follows :

" The accused must be provided with defence counsel in all cases in which a representative of the public prosecutor ’s office participates in the court proceedings .

In other cases , he may be provided with defence counsel , even against his will , when the needs of the defence so require , in particular for reasons relating to his personality or because of the particular difficulties of the case . "

" At any time until the opening of the trial , the accused may request free legal assistance . He shall make such a request to the investigating judge , who shall transmit it forthwith , with his preliminary opinion , to the President of the competent court ; when the case has already been referred to the court , the accused shall submit his request directly to the President .

The President shall take his decision promptly ; ... . "

Sections CARDINAL para . CARDINAL and DATE ( a ) para . CARDINAL provide inter alia :

" Any person who unlawfully cultivates alkaloid or hemp plants with a view to producing narcotics ,

any person who unlawfully manufactures , extracts , transforms or prepares narcotics ,

any person who unlawfully stocks , dispatches , transports , imports , exports or carries them in transit ,

any person who unlawfully offers , distributes , sells , deals in , procures , prescribes , markets or transfers them ,

any person who unlawfully possesses , holds , purchases or otherwise acquires them ,

any person who takes steps to pursue these ends ,

any person who finances illegal traffic in narcotics or who serves as intermediary for such financing , and

any person who publicly encourages the consumption of drugs or reveals how to obtain or consume them ,

shall be liable , if he has acted intentionally , to imprisonment or a fine . In serious cases the sentence may be imprisonment ( réclusion or emprisonnement ) for DATE ; such a sentence may be accompanied by the imposition of a fine of CARDINAL MONEY .

" Any person who unlawfully and intentionally consumes narcotics or any person committing an infringement of LAW in order to provide for his own consumption shall be liable to detention or a fine .

The term of imprisonment ( emprisonnement ) is laid down in DATE LAW :

" The term of imprisonment ( emprisonnement ) shall be not DATE and , except as expressly provided to the contrary by statute , shall not exceed DATE . "

The rules governing the suspension of sentence are set out in LAW , which is worded as follows :

" CARDINAL . Where a custodial sentence of not DATE or an accessory penalty is imposed , the court may suspend the enforcement of the sentence , if the record and character of the convicted person suggest that this measure will deter him from committing further offences and if he has made reparations , to the extent which might reasonably be expected of him , for damage as assessed by the court or by agreement with the injured party .

The sentence may not be suspended where the convicted person has undergone , in respect of an intentional offence ( crime or délit ) , CARDINAL months’ imprisonment ( réclusion or emprisonnement ) within DATE preceding the commission of the offence . Foreign convictions are to be taken into account in so far as they are not contrary to NORP public policy .

In suspending the sentence , the court shall accord the convicted person a probationary period of from DATE .

Where CARDINAL sentence is involved , the judge may limit the effect of the suspension to certain of them .

In the case of abnormal offenders , alcoholics and drug addicts , the court may order the following measures and treatment :

" Where the mental state of an offender who has committed , by reason of this state , an offence punishable by imprisonment ( réclusion or emprisonnement ) under the present Code requires medical treatment or special care intended to remove or reduce the danger of the offender ’s committing other such offences , the court may order that he be sent to a hospital or an asylum . It may order out - patient treatment if the offender does not represent a danger for other persons . "

Where out - patient treatment is ordered , the court may suspend the sentence imposed if that sentence is not compatible with the treatment . In such circumstances , it may order the convicted person to comply with rules of conduct under LAW ) and , if necessary , place him under court supervision .

" CARDINAL . If the offender is an alcoholic and he has committed the offence in question by reason of this state , the court may commit him to an establishment for alcoholics or if necessary to a hospital in order to prevent new offences . The court may also order out - patient treatment . Article CARDINAL ( CARDINAL ) is applicable by analogy .

The court shall order if necessary an expert opinion on the physical and mental state of the offender and on the appropriateness of the treatment .

This Article applies by analogy to drug addicts .