Remainder inadmissible;Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time);Violation of Article 12 - Right to marry (Article 12 - Marry);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy);Pecuniary damage - claim dismissed;Non-pecuniary damage - award

Elisabeth Steiner;Erik Møse;Isabelle Berro-Lefèvre;Julia Laffranque;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska

The applicant was born in DATE and lives in GPE .

On DATE the applicant married PERSON , and on DATE a child , PERSON , was born of the marriage .

On DATE the applicant filed a petition for divorce with ORG ( PERSON ) .

At a hearing on DATE the applicant submitted his proposal concerning contact and child maintenance for PERSON At the same hearing the parties agreed that the marriage be dissolved .

On DATE M. informed ORG that she did not agree with the applicant ’s proposal as regards child maintenance and asked the court to set an appropriate amount .

The applicant lodged a request for expedition of the proceedings with ORG on DATE .

On DATE the applicant brought a separate action in ORG , contesting his paternity of PERSON

The applicant further lodged a request with ORG ( PERSON ) on DATE asking that the proceedings be transferred to another court .

ORG on DATE ordered the parties to submit information concerning their incomes . On DATE the applicant , and on DATE M. , complied with this order and submitted the requested information .

At a hearing on DATE PERSON failed to appear . At the same hearing the applicant requested the trial court to issue a partial judgment by which the marriage would be dissolved . The trial judge dismissed the applicant ’s request and ordered him to submit further documents concerning his financial status .

The applicant complied with the above order and submitted the requested documents on DATE .

On DATE the applicant again lodged a request for expedition of the proceedings with ORG .

ORG on DATE ordered PERSON to submit information concerning the child maintenance payments she had received from the applicant . On DATE she complied with this order and submitted the requested information .

Another hearing was scheduled for DATE but it was adjourned since the applicant informed the trial court that he was ill and could not attend the hearing .

At a hearing on DATE the applicant asked ORG to join the divorce proceedings with the proceedings in which he was contesting paternity of PERSON request was granted , but further proceedings were stayed pending a ORG decision on the applicant ’s request for transfer of the proceedings to another court .

On DATE the applicant asked ORG to adopt a partial judgment , in respect of the petition for divorce alone .

ORG dismissed the applicant ’s request for transfer of the proceedings to another court on DATE .

M. informed ORG on DATE and DATE that she and PERSON had been living in GPE and that the applicant had refused to give consent for PERSON to obtain a passport and to come to GPE to take part in the paternity proceedings .

On DATE the applicant informed ORG that he had given his consent for PERSON to obtain a passport .

A hearing scheduled for DATE was adjourned because the applicant had not been properly summoned .

Another hearing scheduled for DATE was adjourned because the applicant failed to appear . At the same hearing ORG ordered a DNA test .

ORG ordered the applicant to pay a sum of MONEY kunas ( HRK ) for the DNA test on DATE .

In the period DATE and DATE the applicant made CARDINAL payments in instalments for the DNA test . He also asked ORG to extend the time - limit for payment . ORG granted the applicant ’s request and extended the time - limit for DATE . On DATE he informed ORG of the amount he had managed to pay for the DNA test .

On DATE the applicant lodged a complaint about the length of the proceedings with ORG ( Ustavni sud PERSON ) which was forwarded to ORG ( PERSON u ORG ) for further examination . In his submissions the applicant complained that ORG had dismissed his request for the partial judgment by which his marriage could be dissolved . He submitted that the lengthy divorce proceedings had had an adverse effect on his private life and his dignity and that the delay could prevent his marriage to another woman , planned for DATE . The applicant also asked that ORG be ordered to adopt a partial judgment by which his marriage with PERSON would be dissolved .

At a hearing on DATE ORG found that the applicant had failed to pay the full amount required for the DNA test , and adjourned the hearing .

Another hearing scheduled for DATE was adjourned because the applicant informed the trial court that he could not attend the hearing .

On DATE the applicant asked ORG to exempt him from the duty to pay for the DNA test , relying on war veterans’ rights , but on DATE that court dismissed his request .

Another hearing was held on DATE ; the applicant failed to appear .

On DATE the applicant submitted further complaints to ORG about the length of the proceedings : he argued that he was a practising NORP and would therefore like to marry again , but had been unable to do so because ORG had refused to issue a partial judgment by which he could be divorced . He also stressed that he would be humiliated if he had to cancel the planned marriage because he had been unable to divorce .

On DATE the applicant informed ORG that he had made a further payment for the DNA test .

At a hearing on DATE ORG found that the amount necessary for the DNA blood test had been almost fully paid , and requested the parties to make an arrangement to have DNA samples taken .

On DATE the applicant , relying on the ORG ’s case - law , complained before ORG about the manner in which the paternity proceedings and the DNA blood test had been conducted by ORG . He pointed out that PERSON had refused to come to GPE to have a sample of PERSON ’s DNA taken . He again requested ORG to order ORG to adopt a partial judgment concerning the divorce .

The Z. County Court accepted the applicant ’s complaint about the length of the proceedings on DATE . It found a violation of the applicant ’s right to a hearing within a reasonable time , awarded him HRK CARDINAL,CARDINAL in compensation and ordered ORG to adopt a decision as soon as possible , and within DATE at the latest . The relevant part of the decision reads :

“ ... the overall length of these civil proceedings can not be said to have complied with the reasonable time requirement . ... Everything suggests that the court has failed to conduct the proceedings in compliance with the principle of efficiency , since over a period of DATE the case has still not been decided by the first - instance court ...

The applicant , as a plaintiff in the proceedings , has contributed to the length of the proceedings , since the court ’s summons to some hearings could not be served on him and he failed to appear at these hearings . His contribution to the length of the proceedings can also be observed through the fact that he has failed to comply with the court ’s orders in time ( for example to pay for the DNA test ) . ”

On DATE the applicant informed ORG that he was insisting on a DNA test , although in the meantime he had been informed by PERSON that she and PERSON would not attend to have a DNA sample taken .

On DATE the applicant lodged an appeal with ORG against the ORG decision of DATE in the part concerning the amount of the awarded compensation . He also complained that ORG had ignored his request that ORG be ordered to adopt an interim judgment on his divorce .

On DATE the applicant submitted to ORG a written statement from ORG ( PERSON ) confirming that he was unemployed .

Another hearing scheduled for DATE was adjourned because the applicant informed the trial court that he could not attend this hearing and PERSON had failed to inform the court when she and PERSON would be able to attend to have a DNA sample taken .

On DATE ORG awarded the applicant further compensation of HRK CARDINAL,CARDINAL in respect of the length of the proceedings . The relevant part of the decision reads :

“ ... This court considers that the conduct of the applicant had no influence on the length of the proceedings . On the contrary , the case file reveals that the applicant has demonstrated a strong resolve to have the proceedings concluded as soon as possible and within a reasonable time ; this can be seen by his numerous requests that [ the court ] decide on his petition for divorce , to which the defendant also agreed at the hearing of DATE ... Although the first - instance court pointed out that the applicant had contributed to the length of the proceedings by not complying with the summons to appear at the hearings , it is to be noted that it was only the hearing of DATE at which he failed to appear despite having been properly summoned . As regards the hearing of DATE , the applicant was not properly summoned , since the court summons was returned with the notice “ informed , did not collect ” . As to the applicant ’s failure to pay for the DNA test , it is to be noted that he requested that the time - limit for this payment be extended since it concerned a significant amount , given his income and his social circumstances , and the fact that he paid certain amounts in instalments on CARDINAL occasion , in accordance with his financial means . This demonstrated his resolve to comply with the court order . ”

The applicant further lodged a constitutional complaint with ORG on DATE against the above decision of ORG .

At a hearing on DATE the ORG commissioned a DNA paternity report from ORG ( PERSON ) .

M. informed ORG on DATE that she refused to come to GPE to have a DNA sample taken .

On DATE the applicant lodged a request for disqualification of the trial judge , president and all judges of ORG .

On DATE ORG dismissed the applicant ’s constitutional complaint in respect of the length of the proceedings as ill - founded , on the ground that his complaints had been properly addressed by the lower courts .

The Clinical Hospital Š. on DATE informed ORG that the parties had failed to appear to have DNA samples taken .

ORG rejected the applicant ’s request for disqualification of the judges of that court on DATE .

DATE . On DATE the applicant again requested ORG to commission a DNA report .

The president of ORG rejected the applicant ’s request for disqualification of the president of ORG on DATE .

On DATE the applicant again requested ORG to adopt a partial judgment in respect of the divorce alone .

The president of ORG dismissed the applicant ’s request for disqualification of the trial judge on DATE .

ORG on DATE again summoned the parties to have DNA samples taken .

On DATE and DATE the applicant informed ORG that he was withdrawing his action concerning his paternity of PERSON , on the ground that the payment of the requested sum for the DNA test had created an intolerable financial burden for him since he was unemployed and without any source of income . He also asked that the marriage be dissolved as soon as possible since his social benefits depended on his marital status .

At a hearing on DATE the parties reached an agreement on child maintenance and contact between the applicant and PERSON On DATE ORG dissolved the marriage of the applicant and PERSON and decided on the amount of the child maintenance and contact between the applicant and his child . The parties also declared that they would not lodge appeals and the judgment thus became final .

On DATE the applicant married J.V.

The relevant provisions of LAW ORG , ORG no . DATE , CARDINAL , CARDINAL , CARDINAL/CARDINAL ) read as follows :

“ In the determination of his rights and obligations or of any criminal charge against him , everyone is entitled to a fair hearing within a reasonable time by an independent and impartial court established by law . ”

“ Family is under the special protection of the ORG .

Marriage and legal relations in marriage , extra - marital relationship and family shall be governed by law . ”

The relevant provisions of LAW ( Obiteljski zakon , ORG nos . CARDINAL , CARDINAL , CARDINAL , DATE ) read as follows :

“ Marriage can not be concluded by a person who is already married . ”

“ ( CARDINAL ) Irrespective of the form in which it was contracted , a marriage ceases upon : the death of a spouse , the pronouncement that a missing spouse is deceased , annulment or divorce .

( CARDINAL ) A marriage ceases by annulment or divorce when the judgement of a court concerning the annulment or divorce becomes final ... “

“ ( CARDINAL ) This Act governs special civil proceedings , non - contentious proceedings and special enforcement proceedings concerning the marital and family affairs under LAW .

( CARDINAL ) Proceedings as in paragraph CARDINAL are urgent . ”

“ The provisions of LAW and LAW shall be applicable to proceedings under section CARDINAL of this Act , unless otherwise provided under this LAW . ”

The relevant provisions of LAW ( Zakon o parničnom postupku , ORG of ORG nos . CARDINAL , CARDINAL/CARDINAL ( corrigendum ) , CARDINAL , CARDINAL/CARDINAL , CARDINAL/CARDINAL , DATE , DATE , DATE , CARDINAL/CARDINAL and CARDINAL/CARDINAL , and ORG . CARDINAL , GPE , CARDINAL , CARDINAL , CARDINAL/CARDINAL , CARDINAL , CARDINAL , CARDINAL/CARDINAL , CARDINAL , and GPE ) , read as follows :

“ ( CARDINAL ) If only some of a number of claims are ready for a final decision on the basis of the litigation , or if only part of CARDINAL claim is ready for a final decision , the court may conclude the trial and adopt a judgment ( partial judgment ) in respect of the claims or the part of the claim that are ready .

( CARDINAL ) The court is obliged to adopt a partial judgment without delay if , on the basis of admission or waiver of several claims put forward only some become ready for a final decision , or if only part of CARDINAL claim is ready for this decision ... “

The relevant provisions of LAW ( Zakon o sudovima , ORG nos . DATE , CARDINAL/CARDINAL and CARDINAL ) , as in force at the material time , read as follows :

“ ( CARDINAL ) A party to court proceedings who considers that the court has failed to decide within a reasonable time on his or her rights or obligations or a criminal charge against him or her , may lodge a request for the protection of the right to a hearing within a reasonable time with a court at the next higher level of jurisdiction .

( CARDINAL ) If the request concerns proceedings pending before ORG of GPE , ORG or ORG , the request shall be decided by ORG .

( CARDINAL ) Proceedings for deciding on a request as in sub - section CARDINAL of this section shall be urgent . The rules of non - contentious procedure shall apply mutatis mutandis in those proceedings and , in principle , no hearing shall be held .

( CARDINAL ) If the court referred to in section CARDINAL of this LAW finds the request well founded , it shall set a time - limit within which the court before which the proceedings are pending must decide on a right or obligation of , or a criminal charge against , the person who lodged the request , and may award him or her appropriate compensation for a violation of his or her right to a hearing within a reasonable time .

( CARDINAL ) The compensation shall be paid out of the ORG budget within DATE on which the party ’s request for payment is lodged .

( CARDINAL ) An appeal , to be lodged with ORG within DATE , lies against a decision on the request for the protection of the right to a hearing within a reasonable time . No appeal lies against a ORG decision , but a constitutional complaint may be lodged . ”

Amendments to LAW in connection with the length - of - proceedings complaint procedure , enacted on DATE ( Zakon o izmjenama i dopunama PERSON o sudovima , Official PERSON , no . DATE ) , read as follows :

“ LAW [ of LAW ] now reads :

( CARDINAL ) An appeal , to be lodged with ORG within DATE , lies against a decision on the request for the protection of the right to a hearing within a reasonable time . A further appeal , to be lodged with a panel of judges of ORG , lies against the decision of ORG . The panel shall adopt its decision within DATE .

( CARDINAL ) The panel of judges referred to in paragraph CARDINAL shall be composed of CARDINAL ORG judges . They shall be elected by a plenary session of ORG .


The applicant is an NORP national , born in DATE and living in GPE . She is represented before the ORG by PERSON and ORG , a firm of solicitors practising in GPE .

A.

The applicant is the natural mother of CARDINAL children born on DATE , CARDINAL DATE and on DATE . At the time of the birth of her third child ( “ D ” ) , the applicant had a history of substance abuse and of depression . Her relationship ( often violent ) with the father of D had ended , he having commenced a long prison sentence . D was placed in an incubator when he was born until his discharge from hospital on DATE . On DATE , the applicant signed the Admission to Care form to have D placed in pre - adoptive foster care under the supervision of ORG and D was immediately handed over to foster parents . On DATE D was placed with the prospective adoptive parents . On DATE the applicant signed the final consent form for the adoption .

Having recovered from her drug addiction , the applicant wished to obtain the return of D and to challenge the consent to adoption she had signed . Having received notification dated DATE that the final adoption order would be made , on DATE she requested PERSON ( ORG ) not to proceed with the adoption and on DATE notified ORG orally that she wanted her child back . By letter dated DATE the Registrar of ORG confirmed to the applicant that her consent for the adoption would be regarded as withdrawn .

In DATE the applicant went to ORG where she was informed that she would have to wait DATE for an appointment to discuss a legal aid application and that there was a DATE delay before ORG could act . She did not , therefore , fill out the necessary legal aid application forms . She returned twice to that office and failed to obtain legal aid or advice . Given that time was of the essence for the applicant , as D was living still with the prospective adoptive parents , she consulted a voluntary agency and a social worker who put her in touch with a firm of solicitors ( her current legal representatives ) . She contacted that firm of solicitors in DATE . The latter took instructions , instructed Counsel and on DATE issued proceedings on behalf of the applicant seeking sole guardianship of the child pursuant to LAW DATE . Since it was clear to her representatives that the applicant , a single impecunious mother , could not discharge their fees , they contacted ORG by telephone in DATE . The latter confirmed that , while the applicant would qualify for legal aid in relation to her means , there remained the issue relating to that ORG ’s view of the merits of her case . No legal aid application forms were filled out at that stage .

On DATE the prospective adoptive parents also issued proceedings to dispense with the applicant ’s consent to adoption and seeking sole custody of D for the period required to make the adoption order . The prospective adoptive parents were legally aided . ORG hearing in both proceedings took place DATE in DATE and DATE . ORG heard substantial evidence from social workers , a medical doctor , a psychiatrist , a psychologist , the applicant and from the prospective adoptive parents . It took DATE to deliver the judgment orally ( CARDINAL , DATE and DATE ) . ORG found , on the facts , that the applicant ’s consent for adoption had been freely and properly given . As to the best interests of D , it was noted that D had been with the prospective adoptive parents for CARDINAL years and that it was considered that the evidence was that a move at that stage would be traumatic for D and could damage his future capacity to make sound and trusting relationships . It was considered that D had been placed in a household where he would receive great love , care and attention . ORG ordered that the applicant ’s consent to adoption be dispensed with pursuant to section CARDINAL(CARDINAL ) of LAW , that ORG be authorised to make an adoption order and that the prospective adoptive parents have custody of D for DATE , a period calculated to allow the adoption to be completed . ORG made a “ strong recommendation that ORG look favourably ” on the applicant ’s representatives’ request that her costs of the CARDINAL proceedings be discharged by that ORG .

The applicant ’s representatives and ORG subsequently failed to resolve the matter , ORG taking the view that since no application forms had been filled out , no legal aid certificate had issued and that it did not therefore have the power to make the payment , even under section CARDINAL(CARDINAL ) of ORG . On DATE the applicant ’s representatives brought the issue of legal costs before ORG .

On DATE the ORG gave judgment on the costs issue . It commented that the hallmark of the applicant ’s case was “ meticulous preparation and careful presentation ” . It referred to the “ modest ” sums claimed by the applicant ’s representatives and , in that context , noted that the applicant herself had made it clear that she regarded her case as having been fully put before the ORG . It also took note of the applicant ’s inability to obtain legal aid or assistance urgently in DATE and that , accordingly , the required forms for applying for legal aid were not filled out at the time . In that court ’s view it would have been a grave injustice if the natural mother ’s costs were not met because her legal representatives , who presented her case “ diligently and ably ” , would in practical terms not be remunerated . ORG considered that the applicant would have qualified for legal aid had she applied on time , given the nature of the case and her financial circumstances . It was found that , if an order for costs was made against the prospective adoptive parents , the applicant ’s case would fall within the terms of section CARDINAL(CARDINAL ) of ORG . The court therefore made an order for costs against the prospective adoptive parents but put a permanent stay on the order and obtained an undertaking from the applicant not to enforce those costs .

On DATE ORG gave judgment on the prospective adoptive GPE appeal from this costs order against them . ORG accepted that neither the applicant nor the prospective adoptive parents were in a position to discharge the former ’s legal costs . ORG considered that , while the High Court ’s order was intended to allow payment to the applicant under section CARDINAL(CARDINAL ) of ORG , ORG had acted without jurisdiction . ORG allowed the prospective adoptive GPE appeal and set aside the order of ORG . The Chief Justice ( with whom CARDINAL of the other judges concurred ) stated , inter alia , as follows :

“ I < allow the appeal > with regret because I fully appreciate the efforts made by the solicitor who undertook the case on behalf of the natural mother in accordance with the highest traditions of both branches of the profession , that they were not going to let a person who had the constitutional right of access to the courts be deprived of that by reason of the apparent and alleged delays in the administration of the civil legal aid scheme . It is unfortunate that there should have been such delays if they existed which deprived the natural mother of the possibility of getting a certificate of legal aid in time in order to deal with a matter which was of extreme urgency . The ORG has from time to time been faced with problems caused by delay in the bringing and prosecution of appeals against decisions of ORG in respect of these proceedings and to a very considerable extent , these delays have been substantially contributed to by the costs of the proceedings , the difficulty which existed in obtaining a certificate for the civil legal aid in time in order to bring these proceedings to a fairly rapid conclusion . In many cases because of the delays , the ORG has often found it obliged not to alter the status quo with regard to children involved because they had grown up and were DATE and irrespective of the rights and wrongs , obviously the paramount interest of the child required that they be left where they were irrespective of the merits of the application of the natural mother .

I have , as I said , felt obliged to allow the appeal … but do so with regret because it would be much more desirable if access to the courts were made easier for people in the position of the natural mother . She would not have been entitled to or able to avail of that access were it not for the action of her solicitor in undertaking the case and it is in my opinion regrettable that there is not in existence or was not at the time a system whereby a solicitor in the position of the solicitor in this case could obtain reasonable remuneration for his efforts . The problem about making a recommendation to ORG even at this stage is compounded by the fact that they say that they had no power to accede to the recommendation , so no useful purpose would appear to be served in making any further recommendations in this regard . ”

B. Relevant domestic law

Section CARDINAL(CARDINAL)(CARDINAL ) of the Legal Aid Scheme provides that a certificate which is granted after the commencement of the proceedings in respect of which it is sought will not be extended to cover any action taken or costs incurred prior to the issue of the certificate .

Section CARDINAL(CARDINAL ) of that scheme provides that ORG may make ex gratia payments towards the costs of an unaided person but only in cases where the costs have been awarded against a legally aided person and provided that , inter alia , the proceedings in the court of first instance were instituted by the unsuccessful legally aided person .


Violation of Art. 5-3;Violation of Art. 5-4;Violation of Art. 6-1;Violations of Art. 8;Non-pecuniary damage - award

Isabelle Berro-Lefèvre;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Stanislav Shevchuk

The applicant was born in DATE and is currently imprisoned .

On DATE the applicant , Mr NORP and PERSON PERSON were arrested by the police on suspicion of having committed a murder .

On DATE , given the gravity of the offence of which the applicant was suspected , the investigator of ORG decided that the applicant should be remanded in custody for DATE . The same day ORG issued the arrest warrant , authorising thereby the investigator ’s decision .

On DATE ORG extended the term of the applicant ’s detention until DATE .

On DATE the applicant , Mr NORP and PERSON PERSON were charged with murder .

On DATE the investigator completed the investigation and gave the applicant and the co - accused access to the case file . However , on DATE the investigator reopened the investigation and additionally charged the applicant with aggravated robbery . On DATE the investigation was completed and the applicant and the co - accused continued studying the case - file until DATE .

On DATE the supervising prosecutor approved the bill of indictment and transferred the case file to ORG ( hereafter “ the ORG ” ) for trial proceedings .

On DATE ORG committed the applicant and the co - accused for trial and held that the preventive measure in their respect was to remain unchanged . The hearing took place in the presence of the prosecutor , but the applicant and his lawyer were absent .

On DATE ORG held a hearing in the applicant ’s case , where it considered several applications submitted by the co - accused and adjourned consideration of the case until the requisite technical facilities could be installed for the proceedings . According to the applicant , ORG also adjourned consideration of his release request , lodged before the hearing .

According to the applicant , in the period DATE and DATE he lodged CARDINAL requests for his release with ORG , referring to his health problems and relying on his right to a trial within a reasonable time or release pending trial as guaranteed by LAW . Those requests remained unanswered however .

On DATE , CARDINAL , DATE , DATE and DATE ORG held hearings in the case during which it examined the evidence and questioned the defendants and witnesses .

Further court hearings took place on CARDINAL and DATE , CARDINAL , DATE , DATE , DATE , DATE , and DATE , and CARDINAL and DATE , during which ORG continued examining the evidence and questioning witnesses . Within that period the hearings were adjourned CARDINAL times because CARDINAL of the defendants was feeling ill and twice because the counsel of the other defendant failed to appear before the court .

In a letter of CARDINAL DATE the Deputy President of ORG informed the applicant that his latest complaint about the excessive length of the proceedings had been rejected on the same basis as the previous ones , namely that there were compelling and valid reasons for the delays in the proceedings . However , the nature of those reasons was not specified in the letter .

On DATE ORG considered the applicant ’s release requests and rejected them , holding that he was charged with a grave offence and , if at large , might influence the proceedings . ORG further adjourned the case in order to question additional witnesses .

On DATE ORG found , inter alia , that the applicant was guilty of having committed a murder and aggravated robbery . It sentenced him to CARDINAL years’ imprisonment , minus the time spent in pre - trial detention , and ordered the confiscation of his property . On DATE ORG upheld that judgment .

During his detention on remand the applicant wrote letters in which he complained about his conditions of detention to various officials , including a public prosecutor supervising penitentiary establishments , the ORG , ORG and Members of ORG . In accordance with the prescribed procedure , these letters were sent through officials at the detention centre , who dispatched them to the addressees . The applicant ’s letters were subject to automatic monitoring and censorship except for those addressed to the prosecutors and , in the later stages of his detention , to the ORG .

According to the applicant , in DATE , while being held in the detention centre , he wrote a complaint to ORG , describing the ill - treatment and arbitrary punishment inflicted on him by officials at the detention centre . He sent the complaint without going through the officials at the detention centre , in violation of the domestic legislation . Shortly after the complaint had reached the addressee , the governor of the detention centre punished the applicant with CARDINAL days’ confinement in a disciplinary cell for breaching the procedure for sending letters .

Article CARDINAL of the PERSON provides that the detainee or his defence counsel or legal representative may appeal against the prosecutor ’s arrest warrant to the relevant district ( city ) court . The appeal may be lodged directly with the court or through the officials at the pre - trial detention centre , who must send the appeal to the relevant court within TIME of receiving it .

On DATE amendments were introduced to the Code , providing that within TIME the arrested criminal suspect was to face the court for deciding on his further detention .

Article CARDINAL of the LAW provides , inter alia , for the court to set out interim decisions on preventive measures in the form of a separate document .

According to LAW the court , if appropriate , may order , change , or discontinue a preventive measure in respect of the defendant .

Section CARDINAL of the LAW provides , inter alia , for persons detained on remand to be able to correspond with relatives , other persons and legal entities upon written consent by the authority in charge of the criminal case against the detainee concerned .

The officials of the detention centre must review all the letters of the detainees except for those which are addressed to the prosecutor . Since DATE this exception has been extended to cover letters addressed to the ORG .

If the letter is related to the criminal case against the detainee concerned it has to be handed over within DATE to the authority in charge of the detainee ’s criminal case for consideration . Letters containing information which can obstruct justice must not be dispatched to the addressee but must be handed over to the authority in charge of the detainee ’s criminal case . The detainee and the prosecutor must be informed of the interception made .

If a letter is not related to the detainee ’s criminal case , it must be answered by the officials at the detention centre or sent to the addressee .

The same section of the LAW requires any appeal against the prosecutor ’s arrest warrant authorising pre - trial detention as a preventive measure to be sent by the detention centre to the relevant court within TIME . The prosecutor must be notified at the same time .

Under LAW of the LAW detention centre officials may impose on detainees who violate detention regime rules such penalties as warnings or reprimands , additional cleaning of the cell or a DATE ban on buying food and receiving parcels .

If a detainee intentionally violates detention regime rules , he may be placed in a disciplinary cell for DATE , following a reasoned order issued by the governor of the detention centre .

The section further stipulates that the penalties imposed on detainees should be proportionate to the gravity and nature of the infringement .

Paragraph CARDINAL of the ORG provides that in accordance with LAW , the subject of appeal shall only be the arrest warrant issued by the prosecutor for the detention of the suspect or accused , and not the decision of the investigator or the investigating body concerning the applicable custodial preventive measure or the decision of the court ( judge ) to detain the defendant .


The applicant , PERSON , is a NORP national , who was born in DATE and lives in GPE , GPE . She is represented before the ORG by PERSON , a lawyer of the law firm PERSON , ORG practising in GPE . The respondent Government are represented by PERSON ORG , ORG , of ORG .

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

In a questionnaire dated DATE ORG informed the applicant that she was suspected of having damaged Mr PERSON ’s car on CARDINAL or DATE . The police informed her that she was free to make a statement on this accusation in writing or to remain silent .

On DATE ORG received the questionnaire completed by the applicant , in which she stated that she did not admit the crime she was suspected of . She wrote that she did not wish to make a statement herself and that she left it to her lawyer to deal with the matter . She went on claiming that she considered the behaviour of Mr W. to be an act of revenge on her .

In a letter dated DATE the applicant ’s lawyer ORG notified ORG that he represented the applicant and requested to grant him access to the case file . Although he stated in this letter that a power of attorney was enclosed , the letter did not contain this document .

On DATE the public prosecutor applied to ORG to issue a penal order against the applicant .

In a letter dated DATE addressed to ORG the applicant ’s lawyer PERSON repeated his request to inspect the case file .

On DATE ORG issued a penal order ( PERSON ) against the applicant in a summary procedure . The applicant was convicted of damage to property and sentenced to a fine of CARDINAL Deutschmarks per day for DATE .

On DATE counsel PERSON ’s letter recalling his motion to be granted access to the case file reached ORG .

On DATE the penal order was served on the applicant by way of a notice in her letter - box to collect a letter deposited at ORG , as the postman had not found anyone at the applicant ’s home . The applicant did not collect this letter . The applicant ’s counsel was not sent a copy of the penal order .

On DATE the penal order became final , since no objection had been lodged by the applicant within the DATE time - limit under the relevant provisions of LAW ( Strafprozeßordnung – see ‘ Relevant domestic law’ below ) .

On DATE ORG issued a payment order ( GPE ) against the applicant in respect of the fine .

On DATE ORG ordered the imprisonment of the applicant for default of payment of the fine ( GPE ) . The order was served on the applicant on DATE , again by way of a notice in her letter - box to collect a letter deposited at ORG . The applicant also did not collect this letter .

On DATE ORG issued a warrant to bring the applicant before the competent authority ( PERSON ) . The warrant contained a reference to the date and filenumber of the penal order , to the offence the applicant was convicted of and to the amount of the fine .

On DATE an officer of the police station which had been instructed to execute this warrant phoned the applicant , informed her of the warrant and requested her to come to the police station . The applicant did so and was informed by a police officer about the warrant and the existence of the underlying penal order . In the following discussion the applicant denied having damaged the car of Mr W. , her former partner . She paid the fine in order to prevent the execution of the warrant .

In a letter dated CARDINAL DATE , which reached ORG on DATE , the applicant ’s new lawyer , who has represented the applicant since then , requested ORG to grant him access to the case file . He stated that he had been informed by the applicant of the measures taken to enforce a sentence without her having received a penal order or a judgment .

On DATE ORG granted the applicant ’s new lawyer access to the case file . The file reached the lawyer on DATE .

By a letter dated DATE , which reached ORG on DATE , the applicant ’s new lawyer lodged an objection against the penal order after having inspected the case file . At the same time , he submitted an application for reinstatement of the proceedings ( Wiedereinsetzung in den vorigen Stand ) with respect to the DATE timelimit for lodging the objection . He argued that it was not the applicant ’s fault that she did not comply with this time - limit . She had not received the penal order . Since she had instructed a counsel , she was confident that services would be effected on her lawyer , and that she did not have to attend to the observance of any time - limits herself .

On DATE ( decision served on DATE ) ORG dismissed the applicant ’s request for reinstatement as inadmissible . Consequently , it dismissed her objection against the penal order as inadmissible . It found that the request for reinstatement was filed out of time . According to the court , the applicant was informed of the content of the penal order when she came to the police station on DATE . Neither she nor her new counsel applied for reinstatement of the proceedings within the DATE time - limit running from DATE . The court found that , in any event , the application for reinstatement of the proceedings was ill - founded . It was not credible that the applicant had neither received the penal order nor any of the other documents served on her , because the address to which the documents had been sent was correct . Therefore , it was the applicant ’s fault that she did not comply with the timelimit to lodge an objection against the penal order .

On DATE the applicant lodged an appeal ( sofortige Beschwerde ) against the decision of ORG . She stated that in DATE several letters to her or her neighbours did not reach their addressees . She claimed in particular that , even assuming that the notification of the penal order was valid , it was contrary to her right to a fair trial and to be heard that ORG had neither granted her lawyer access to the case file nor informed him that it had issued a penal order . She therefore had to be granted reinstatement . She disputed that she had been informed of the contents of the penal order by the police on DATE . In fact , the competent police office was unable to explain to the applicant ’s lawyer who had called him on DATE why the applicant had to pay a fine . Therefore , the time - limit of DATE to apply for reinstatement of the proceedings did not start running before the applicant ’s counsel had inspected the case files and was consequently observed .

On DATE ( decision served on DATE ) ORG , endorsing the reasons given by ORG , dismissed the applicant ’s appeal as ill - founded .

On DATE the applicant lodged a constitutional complaint with ORG . She claimed that her right to be heard had been violated by ORG by not granting access to the case file to her lawyer , not hearing her via counsel before issuing the penal order , not informing the latter that a penal order had been issued and not granting reinstatement of the proceedings .

On DATE ORG , without giving reasons , refused to admit the applicant ’s constitutional complaint . The decision was served on the applicant ’s lawyer on DATE .

By a letter dated DATE , which was posted on DATE , the applicant sent her first submissions to the ORG . In these she set out the object of her application , including the underlying facts and her complaints , and enclosed copies of all relevant court decisions . The completed application form dated DATE , in which the applicant referred to her first submissions , reached ORG .

Sections CARDINAL et seq . of LAW ( GPE ) provide for the imposition of a penal order , without a trial , in cases concerning minor offences . ORG may lodge a motion to ORG to issue a penal order , setting out the offence the accused is charged with and fixing the sentence . The judge must issue the penal order if there are no grounds for refusing it , that is , if he has no objections to deciding without a trial hearing , agrees with the legal assessment of the case and does not wish to impose a different sentence . The written penal order must contain a reference to the fact that the penal order should be final , binding and enforceable if the accused fails to lodge a written objection with ORG or have such an objection taken down in writing at the court ’s registry within DATE of service .

If the objection reaches the court within the prescribed time - limit , normal trial proceedings are instituted , and ORG conducts a hearing . If the accused was prevented from complying with the time - limit through no fault of his own , a motion to have the proceedings reinstated may be brought . According to Sections DATE of the Code of Criminal Procedure this motion must reach ORG within DATE from the cessation of the impediment due to which the objection could not be lodged in time . The facts justifying the motion shall be substantiated at the time the motion is filed or during the proceedings concerning the motion .

Pursuant to Section CARDINAL of LAW the service of documents is governed by Sections CARDINAL and CARDINAL of the Code of Civil Procedure ( Zivilprozeßordnung ) . If a document can not be served personally , it may be deposited , inter alia , at the local post office . In that case a written notice of deposit must be left at the recipient ’s address in the manner customary for ordinary letters .

Section CARDINALa of LAW provides that if a decision is served on the accused , the defence counsel must be informed thereof at the same time and must be provided with a copy of this decision , even if there is no written power of attorney in the case file .

The defence counsel ’s right of access to the case file is governed by Section CARDINAL of LAW . A defence counsel is entitled to consult the case file as a whole as soon as the preliminary investigation has been terminated and , in principle , also during the preliminary investigation , if the purpose of the investigation is not endangered thereby . During the preliminary investigation , it is for ORG to decide whether or not to grant access to the file ; thereafter it is for the president of the trial court .


Preliminary objections rejected (victims - out of time);Violation of Art. 5-1;No violation of Art. 5-4;Violation of Art. 6-1;No violation of Art. 3;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings

The applicant , a NORP national born in DATE , was arrested on DATE for an assault causing its victim to be certified unfit for work , having attacked his ex - wife with a hammer . He was placed in detention pending trial , first in a CARDINAL - person cell ( see paragraph CARDINAL below ) and then on a ward in the psychiatric wing of ORG .

On DATE ORG ( chambre du conseil ) of ORG imposed a detention order on the applicant pursuant to section CARDINAL of the “ LAW of DATE ( see paragraph CARDINAL below ) . It decided that , pending his detention in an institution to be designated by the competent mental health board ( see paragraph CARDINAL below ) , PERSON would be held provisionally in the psychiatric wing of ORG . The order was worded as follows :

“ ORG of ORG ,

Adopting the reasons set out in the public prosecutor ’s written submissions ;

Finds that the accused committed the acts referred to in the prosecution submissions … ;

Notes that at the material time the accused was suffering from a severe mental disturbance which made him incapable of controlling his actions and that he is still suffering from the same condition ;

Orders the accused to be detained ;

Orders that , pending the detention of the accused , who is at present in prison , in an institution to be designated by ORG , he shall be detained provisionally in the psychiatric wing of ORG . ”

On DATE a psychiatrist sent the mental health board for the psychiatric wing of ORG the following report :

“ PERSON , a detainee who is at present being held in the psychiatric wing of ORG , is a subject with a very fragile , badly organised personality and is at best what could be described as a borderline case . He is a severely addicted drug user who has been involved for DATE in a sado - masochistic relationship with a young woman . He is extremely anxious in the common room of the wing , continually asks for his medication to be changed and is perpetually plunged in ruminations about how the relationship with his girlfriend on the outside is working out . His mental masochism is patently obvious to anyone listening to him and it would seem that he urgently requires the full benefits of an institution better equipped to calm the constant anxiety he feels at the moment . It is therefore an urgent matter for him to be able to leave the psychiatric wing of ORG . ”

On DATE ORG designated ORG as the place where the applicant should be detained .

On DATE the applicant requested leave in order to go back to live with his grandfather . In support of this application his family doctor , who had consulted the psychiatrist attached to the psychiatric wing , had on DATE sent ORG the following note :

“ I am writing to you concerning Mr PERSON , who seems to have been making satisfactory progress recently . That applies to both his behaviour and his short and medium - term projects .

Renewable leave would provide just the right opportunity to observe his behaviour and the way he sets about his projects outside the prison environment . ”

NORP In a decision of CARDINAL DATE ORG rejected the application in the following terms :

“ It is not acceptable that our decision of CARDINAL DATE placing [ the applicant ] in ORG has still not been executed .

That failure of administration on the part of the responsible authorities is harmful to the person concerned , who is not getting the treatment required by the condition which led to his detention .

However , ORG can not countenance any form of release which would make the person concerned a danger to himself and others . ”

On DATE , DATE after the judgment given by ORG ( see paragraph CARDINAL below ) , the applicant was transferred to ORG .

On DATE ORG , at the applicant ’s request , decided to release him on probation on the grounds that “ the detainee ’s mental state [ seemed ] to have improved sufficiently ” and that “ the conditions of his social rehabilitation [ were ] such as to permit the belief that he [ was ] no longer a danger to society ” . It made its decision subject to a number of conditions , which included the obligation to accept medical and social supervision and the obligation to live at ORG .

On DATE Mr PERSON was released .

On DATE , having regard to the deterioration of the applicant ’s behaviour and the breach of the conditions for his release , particularly abstention from heroin and alcohol , ORG again ordered his detention and designated ORG for that purpose .

On DATE , being still detained in the psychiatric wing of ORG , PERSON , together with CARDINAL other prisoners in the same situation , applied to the President of ORG for an injunction ordering his immediate transfer , with a penalty of MONEY ( BEF ) per day of delay . Among other allegations , he submitted that the conditions of his detention constituted inhuman and degrading treatment within the meaning of LAW .

On DATE the President of ORG ruled that the applicant ’s continued detention at PERSON was unlawful and constituted a trespass to the person which should be terminated as quickly as possible . He ordered the ORG to transfer Mr Aerts to ORG and ruled that if the ORG did not comply with the injunction within DATE of its being served , it would have to pay the applicant a penalty of QUANTITY day of delay .

The ORG appealed on DATE . On DATE ORG set aside the injunction of DATE and ruled that there were no grounds for using the summary procedure . It held in particular that implementation of a mental health board ’s decisions was an administrative act which fell outside the jurisdiction of the ordinary courts and that in the present case the administrative authorities had not committed a trespass to the person which was actionable in the civil courts . It gave the following reasons for its judgment :

“ The respondents are subject to a detention order and ORG was designated , by ORG decisions of ... and … respectively , as the place where they were to be detained . They have not been transferred there and are still being held in ORG psychiatric wing . The appellant submits that , because of a shortage of places in ORG , it has been obliged to draw up a waiting - list , on a ‘ first come , first ORG basis , and that the person at the top of the list is transferred to ORG as soon as a place becomes available as a result of the release of another inmate whose condition has improved . The appellant adds that extensive work has been carried out in order to increase the capacity of ORG and that the opening of a new building there on DATE has already enabled several detainees on the waiting - list to be transferred ; that the others will be admitted there gradually , for security reasons and to allow the supervisory personnel time to familiarise themselves with their duties ( see the director ’s report of DATE ) ; and that it is possible that the respondents will very shortly benefit from the opening of this new building .

Although the respondents clearly have a right to be transferred to an institution where they will receive a scientifically organised course of treatment devised by psychiatric staff , it has to be recognised that in ORG the chronic overcrowding , resulting in a deplorable lack of privacy not conducive to successful treatment , is now coupled with a marked lack of security and premises that are close to being unhygienic , so that treatment there is failing ( see the descriptions in CARDINAL cases in ORG ) , CARDINAL of CARDINAL , reported in ORG [ Revue de Jurisprudence de Liège , PERSON ] DATE , CARDINAL and CARDINAL of CARDINAL.CARDINAL.CARDINAL ( GPE v. PERSON , C. and T. , complaint no . PERSON ) . The appellant has had to postpone transferring inmates subject to detention orders to this centre lest this worsen the situation , and has introduced the waiting - list system , which has been severely disrupted by a number of injunctions – accompanied by high penalties – giving certain inmates priority for reasons difficult to justify . The fact that the appellant has complied with these decisions DATE essentially because of the burden represented by the penalties – can not be interpreted as meaning that it has decided once and for all to waive any challenge to the ordinary courts’ power to intervene in this area ; circumstances which suggest that a right has been waived must be interpreted narrowly and such a waiver can be deduced only where those circumstances are not open to any other interpretation ( PERSON . [ Court of Cassation ] CARDINAL.CARDINAL.CARDINAL , reported in Pas . [ Pasicrisie ] DATE , I , CARDINAL ) .

Unlike decisions on the release of an inmate subject to a detention order , which count as judgments ( jugements ) by virtue of their subject matter ( see PERSON . CARDINAL in LOC . DATE , I , DATE , and the opinion of Advocate - General Mahaux ) , mental health board decisions designating the institution in which a person subject to such an order is to be detained do not concern liberty of person , but only the manner in which a detention order is to be executed ( see PERSON , ‘ ORG commissions de défense sociale’ , ORG [ Revue de droit pénal et de criminologie ] , DATE , p. CARDINAL , § CARDINAL ) . By their very nature , they are not covered by LAW .

The execution of these decisions is an administrative act , not a regulation ( règlement ) governed by LAW .

The appellant does not deny the respondents’ right to be transferred to ORG , but argues that they should not be transferred immediately because of the overcrowding there , the resulting disorder and the potential security problems both for staff and other citizens . The decision to continue to hold the surplus numbers of mentally disturbed offenders in prison psychiatric wings is therefore a choice which the authorities have made after weighing the detainees’ right to the most appropriate medical treatment against general security requirements .

That choice is an administrative act of exactly the sort not subject to review by the ordinary courts .

Although the ordinary courts have jurisdiction to order the measures necessary to end or prevent any wrongful infringement of an individual right , they are prohibited from examining the appropriateness of a measure taken by an administrative authority , and from acting as an administrative authority ( see the conclusions of PERSON , now ORG but at that time Advocate - General , in GPE . CARDINAL , Pas . DATE , I , p. CARDINAL , and in particular p. CARDINAL ; and GPE . DATE , RG DATE , GPE v. V.D.E. ( in liquidation ) ) . A judge dealing with applications for injunctions can not , without interfering with the administration ’s general policy , question the expediency of a decision to draw up a waiting - list and disrupt the order of that list by ruling , under threat of a penalty , that a mentally - disturbed offender cared for in less favourable conditions in a psychiatric wing must be transferred immediately . There must , in any event , be other possibilities for transfer , since a mental health board – and in cases of emergency , the chairman alone – can , even of its own motion , send an inmate to another State - run DATE or , in exceptional cases , private – institution .

The only court which has considered this issue on the merits found ( see ORG ) , case of H. and PERSON GPE , DATE ) that the detention was nevertheless still legal , thus ruling out the existence of an arbitrary trespass to the person . The shortage of places in prisons no doubt justifies the building of additional accommodation , but this work – besides being impossible to complete TIME – entails financial commitments which are a matter of general policy not subject to review by the courts . The opening of the new building at ORG is an illustration of the appellant ’s concern about the problem of dealing with persons subject to detention orders .

The observations made in DATE by the President of ORG , on the basis of an inspection of the LOC and a judicial investigation , provide a clear comparison between the regimes and types of treatment provided for the inmates at ORG and in the PERSON psychiatric wing ; this comparison excludes any need for a new inspection and enables this court to draw the conclusion that , although the situation of mentally disturbed offenders in PERSON is not ideal , and may jeopardise their recovery , the regime under which they DATE including the respondents – live there can not be likened to inhuman or degrading treatment as prohibited by ORG . ”

On DATE the applicant applied for legal aid in order to appeal on points of law against the judgment of DATE . In support of his application , he put forward the following arguments :

“ It appears from the judgment that ORG left unanswered the appellant ’s argument alleging a violation of LAW above - mentioned ORG .

In its judgment of CARDINAL DATE ORG did not reply to this argument , although the provision concerned was cited by the appellant , although the court of first instance did implicitly but undeniably reply to it and although it was implicitly but undeniably reproduced by the appellant in his submissions to ORG , which essentially asked the court to uphold the order appealed from .

It therefore appears that the above - mentioned judgment of DATE breached , inter alia , LAW .

Moreover , ORG judgment of DATE is in total contradiction with a judgment given by ORG of ORG on DATE , in which it upheld an injunction made in a similar case , ruling that the detention was unlawful and constituted a trespass to the person . ”

In a decision of DATE ORG of ORG refused the application in the following terms :

“ Whereas the appellant has supplied evidence of insufficient means ;

Whereas the appeal does not at the present time appear to be well - founded ;

The application is rejected . ”

NORP The relevant provisions of LAW DATE “ for the protection of society against mental defectives and incorrigible offenders ” ( “ the DATE LAW ) read as follows :

“ Where there are reasons to believe that the accused is suffering from a mental disorder or from a severe mental disturbance or defect making him incapable of controlling his actions , the investigating judicial authorities may , in those cases where pre - trial detention is provided for by law , issue an arrest warrant with a view to placing him under observation … ”

“ Except in cases of serious crimes committed for political motives or through the medium of the press , the investigating judicial authorities and the trial courts may order the detention of an accused who has committed a serious crime and is suffering from one of the conditions set out in LAW .

“ For each psychiatric wing there shall be a ORG .

ORG shall be composed of CARDINAL members : a serving or retired judicial officer , who shall preside , a lawyer and a doctor .

The members of the ORG shall be appointed for DATE ; they shall each have CARDINAL or more substitutes .

The chairman and his substitutes shall be appointed by the President of ORG . The lawyer and his substitutes shall be chosen by the Minister of ORG from CARDINAL lists of CARDINAL names , one submitted by the public prosecutor and CARDINAL by the President of ORG . The doctor and his substitutes shall be appointed by the Minister of ORG .

“ Detention shall take place in the institution designated by ORG .

This shall be chosen from the institutions organised by the Government . ORG may , however , for therapeutic reasons and by means of a decision mentioning the precise reasons , order the person concerned to be placed and held in another institution able to provide an appropriate level of security and treatment .

If , at the time when the detention order is made , the accused is in prison , he shall be detained provisionally in the prison ’s psychiatric wing or , where there is no psychiatric wing , in the wing designated by the court which has ordered his detention . ”

“ ORG may , of its own motion or at the request of the Minister of ORG , the public prosecutor , the detainee or the latter ’s lawyer , order the detainee to be transferred to another institution .

An application by the detainee or his lawyer may not be resubmitted within DATE .

ORG may allow the detainee to alternate detention with short periods of leave in accordance with conditions and rules to be laid down by the Minister of ORG . ”

“ In an emergency the chairman of ORG may provisionally order transfer to another institution . His decision shall be referred to ORG , which shall determine the issue at its next meeting .

In a like case , on grounds of security , the Minister of ORG may also provisionally order the transfer of the person concerned to another institution and shall inform the ORG immediately . ”

“ The ORG shall monitor the detainee ’s condition and may for that purpose visit his place of detention or delegate CARDINAL of its members to do so . It may , of its own motion or at the request of the public prosecutor , the detainee or the latter ’s lawyer , order the detainee ’s release , without conditions or on probation , where his mental condition has improved sufficiently and the appropriate conditions for his social rehabilitation have been established . If an application from the detainee or his lawyer is rejected , it may not be resubmitted within DATE of rejection .

“ Where release on probation is ordered , the detainee shall be subject to medical and social supervision whose duration and conditions shall be specified in the order .

Where his conduct or mental condition reveals a danger to society , particularly if he does not comply with the conditions imposed on him , the released detainee may , on an application from the public prosecutor of the district where he is found , be returned to detention in a psychiatric wing . The subsequent procedure shall be as laid down in sections CARDINAL and DATE . ”

In DATE the President of ORG , as the judge responsible for hearing urgent applications , was for the first time asked to deal with problems arising from the continued detention in the psychiatric wing of ORG of persons who ORG had decided should be detained at ORG . This first application , lodged by PERSON and a PERSON , gave rise to an inquiry which included a visit to the psychiatric wing of ORG and interviews with the CARDINAL complainants and the doctors working at the FAC .

The report on the visit to the LOC and the interviews with PERSON and PERSON , drawn up on DATE , is worded as follows :

“ At TIME the Chairman declared the hearing open .

We went into the psychiatric wing , which is separated off from the rest of the prison , and consists of :

– CARDINAL central office , with CARDINAL supervisors , but no nurse ;

– CARDINAL dormitory with CARDINAL beds in all , arranged along the CARDINAL sides of the room , with a bedside table next to each bed . CARDINAL of these beds are reserved for prisoner - helpers ( i.e. prisoners who are not mentally ill who have volunteered for this duty . They are considered trustworthy but have no special qualifications and are there to help the warders in the event of an incident ) . There are CARDINAL warders : CARDINAL on the ward and CARDINAL in the cell area ;

– DATE - room with a television , a table - tennis table , CARDINAL tables and CARDINAL chairs , and a surveillance camera covering the whole room . This room is immediately opposite the dormitory , and was initially supposed to be a dormitory as well . The medical authorities decided it was better to designate CARDINAL as a sleeping area and the other as a day area ( where smoking is allowed ) ;

– near the DATE - room , the washroom , containing CARDINAL toilets and a washbasin ;

– near the dormitory , a separate bathroom with CARDINAL showers , a bath and CARDINAL washbasins ;

– between the dormitory and the DATE - room , a corridor in which meals are served ;

– a small room where , DATE , drawing and NORP classes are held for TIME ;

– a cell area currently housing CARDINAL people , including QUANTITY people in twin cells ( CARDINAL x CARDINAL ) . A central corridor separates the cells , in which the occupants can watch television and play cards between CARDINAL and TIME In TIME , they are allowed to go out into the exercise yard for TIME , depending on the weather . In the twin cells , one foam mattress has been placed directly on the floor ;

– a fairly spacious exercise yard reserved for the inmates of the wing ( of the ward and cell area alike ) .

When we visited the common room the occupants stated that :

– there were too many of them ;

– they had nothing to do ;

– they spent DATE in the day - room , which seemed a very long time to them ;

ORG it was very hot ;

– they did not have enough air because the windows were never opened ;

– they were entitled to CARDINAL visit per week for TIME ;

– they were not allowed to use the telephone ;

– they could change their clothes only very rarely ;

– they were sent all the misfits from other places ;

– there were not enough supervisors ( CARDINAL during DATE , and often fewer at DATE ) ;

– they had regular contact with the psychiatrist and were on very good terms with him .

When we visited the cell area ,

PERSON told us that :

– he had no work to do , so time passed very slowly for him ;

– he spent the whole day resting ;

– he saw the doctor when he asked to but the doctor did not examine them of his own accord ;

– there was no psychologist ;

– from time to time he saw a social worker , but she was overworked as she had other duties in the prison and was not there DATE ; he therefore saw her only once a week at most ;

– there were never any trips outside and no leave ;

– relations with the doctor and the supervisors were very good .

PERSON told us that :

– he had no work , and could not do any sport ;

– he was not allowed coffee or a lighter ;

– there was no psychologist ;

– he saw the social worker when he asked to , if she was there ;

– the warders were good , but there were not enough of them . ”

On DATE the President of ORG Instance interviewed the psychiatrist assigned to the psychiatric wing of ORG . His statement reads as follows :

I am neither a relative nor an associate of the complainants . I am the only neuropsychiatrist ( or doctor specialising in psychology ) in ORG . I work there for TIME a week : TIME on DATE , TIME on DATE , and TIME on DATE . The scope of my work is vast , as I am in theory responsible for looking after all the prisoners in GPE ( CARDINAL of them ) , not just the inmates of the psychiatric wing . It is the only prison in GPE where there is only one neuropsychiatrist for so many prisoners and people subject to detention orders . I spend CARDINAL of my time in the psychiatric wing . There are many different types of inmate : people under detention orders ; drug addicts who are sent to the wing when they first arrive in PERSON ( new ones arrive DATE ) ; prisoners DATE on remand or convicted DATE with a wide range of mental disorders ; and finally , people undergoing psychiatric observation , particularly at the request of an investigating judge . The wing has CARDINAL beds , including CARDINAL for prisoner - helpers , but in fact there are CARDINAL inmates . During DATE there are CARDINAL to DATE . The dormitory has CARDINAL beds and there are CARDINAL cells , currently housing CARDINAL people under detention orders . The figure CARDINAL is much too high , as these people need a lot of psychiatric and neurological care , and occupational therapy . They require treatment for acute problems , which is given . They should also be treated on an ongoing basis with a view to their social rehabilitation . They should have regular consultations with psychologists and social workers . I also think it is essential for them to be given work . And yet this ongoing treatment is non - existent .

As for the people looking after them , there is CARDINAL part - time psychiatrist ( myself ) . There are no qualified nurses , only supervisors with no special training . There should be CARDINAL supervisors per shift , but there are often CARDINAL and sometimes even CARDINAL . The presence of these supervisors is very important for the inmates : they are there to listen to them , talk to them , stay on the ward and play games with those who want to , which is practically impossible given the high number of inmates and the low number of supervisors . They are also supposed to supervise the inmates’ visits and the exercise yard . CARDINAL of these supervisors , who is not a nurse , has to prepare the medication . There is no psychologist , and no occupational therapist , although one is needed to make work part of therapy . There is no tutor . There is CARDINAL social worker , who also works in other parts of GPE ( particularly with the women prisoners ) . The inmates under detention orders are also given a few music , LANGUAGE and NORP lessons by volunteer teachers , but much more could be done ...

Inmates under detention orders may see me on request . I do not examine them systematically DATE . It would be better for me to see them regularly and talk with them , but this is quite impossible given their number and TIME I have at my disposal .

[ After the above statement was read back to him , the witness added : ]

Ongoing treatment is becoming increasingly necessary , given that the inmates under detention orders are spending longer and longer in the psychiatric wing , whereas they should be in a ORG .

[ In reply to a question from Mr PERSON : ]

The detainees can not be given intravenous injections , as these must be given by a doctor . They can be given only intramuscular injections , which should be given by a nurse but are given by supervisors whom I have shown how to do it . This can not cause any serious problems , however . I only see inmates at their request . Often , what they want is very specific , so that I need to spend only a short time with them . However , when they want to ‘ get things off their chest’ , I usually spend TIME with them , which I consider too little .

Generally speaking , intravenous injections may be required , particularly for acute depression . These injections can not possibly be given in the psychiatric wing , owing to the lack of qualified staff .

In an injunction of CARDINAL DATE issued on the application of Mr H. and PERSON , the judge responsible for urgent applications held that , where it had been decided that a person was to be detained at ORG , his continued detention in the psychiatric wing was in breach of “ both sections CARDINAL and CARDINAL of LAW of DATE and LAW . He took the view that the situation at PERSON was much less favourable than at ORG , noting that those detained there did not have the social , psychological and psychiatric care the LAW required , or regular medical attention from a psychiatrist , or an environment suitable for the treatment of psychiatric patients . He accordingly ordered the ORG to provide the complainants with a detention regime that complied with the LAW . When ORG came to consider the merits of the case , it held that the detention had remained lawful in spite of the long delay that had occurred before the transfer from GPE to ORG .

NORP The President of ORG , sitting as the judge responsible for urgent applications , subsequently issued a number of injunctions along the same lines as that of DATE ; in each case the ORG complied .

Hearing for the first time an appeal by the ORG against such an injunction , ORG , in a judgment of DATE ( NORP v. GPE judgment ) upheld a decision that it was unlawful to continue to hold a detainee at GPE despite ORG decision , in the following terms :

“ Whereas ORG noted on DATE that the doctor responsible for the wing had written in his report of CARDINAL DATE that :

– the inmates’ mental health was deteriorating on account of the conditions they found themselves in on the wing , where they were obliged to mix with a constant stream of drug addicts , who revived a craving for drugs among some of them ;

– there was a serious risk of an irreversible deterioration of the patient ’s mental condition if he was left any longer on the wing , where it was obvious that he could not receive appropriate treatment ;

– the failure to execute the detention order within a reasonable time invalidated the detainee ’s detention , which became unlawful , and a reasonable time had expired .

Whereas the judge responsible for urgent applications rightly ordered payment of a penalty in default of compliance with his decision ;

Whereas , indeed , the attitude of the appellant , which had shown some reluctance to execute the earlier decisions , justified such a measure … ”

On a visit to GPE from DATE ORG for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment ( “ the CPT ” ) went to several places of detention , including ORG . In its report , made public on DATE , it noted in particular with regard to the psychiatric wing at GPE :

“ CARDINAL . The psychiatrist mentioned of his own accord the problems and the inadequacies of the regime on the psychiatric wing . All the patients with whom the delegates spoke complained about their lack of contact with qualified staff , although they mentioned the positive attitude of the prison staff .

Contact with the psychiatrist was extremely basic . Some patients saw him once DATE ; others , less frequently – for example , CARDINAL patient who had been on the wing since DATE had seen him CARDINAL times ; another , on the wing since DATE , who was obviously depressed and suicidal , had seen him once ; another , who had been transferred to the wing in DATE , twice . It appears that the consultations are extremely brief . In addition , some patients have claimed that they had to stand up during consultations .

During our visit several patients under detention orders were waiting to be transferred to a ORG . CARDINAL had been designated for transfer to ORG since DATE and had been on the wing for DATE ( since DATE ) , while others had been waiting for their transfer for DATE . It is obvious that keeping mental patients detained for lengthy periods in the conditions described above carries an undeniable risk of causing their mental state to deteriorate .

The ORG delegation was informed that , at the time , there was CARDINAL institution specifically designated as a ORG , at ORG , and CARDINAL other institutions ( either hospitals or prisons ) with a section reserved for people subject to detention orders . However , it appears that there are more such people than there are places at these institutions .

The psychiatric wing admits patients needing psychiatric observation and/or care , but it has neither the facilities nor the staff appropriate to a psychiatric hospital . The standard of care of the patients on the psychiatric wing fell , in every respect , below the minimum acceptable from an ethical and humanitarian point of view .

Consequently , the ORG recommends that the NORP authorities should take , without delay , the necessary measures to :

– significantly increase the medical staff of the wing , which should include at least the equivalent of a full - time psychiatrist ;

– assign sufficient numbers of qualified , psychiatrically trained nursing staff to the wing ;

– ensure that qualified nursing staff are on stand - by on the wing at TIME and end the system of TIME supervision by prisoner - helpers ;

– put in place personalised programmes of therapeutic activities involving the full range of treatment approaches ( psychological , social and occupational ) ;

– create a personalised therapeutic environment where material conditions are concerned ( personal effects , wardrobes , sitting - rooms , washrooms separated from living quarters , etc . ) ;

– more generally , make significant improvements to the physical living conditions .

The ORG further recommends the NORP authorities to explore the possibility of replacing the dormitory with bedrooms for CARDINAL or CARDINAL patients .

Lastly , the ORG recommends that the NORP authorities should make it a high priority to find a solution to the above - mentioned problem of the transfer of patients subject to detention orders . ”

In an interim report made public on CARDINAL DATE , in reply to the ORG ’s report of DATE , ORG stated that it was incorrect to say that prisoners on the psychiatric wing at PERSON were left under the sole supervision of prisoner - helpers : CARDINAL prison officers belonging to the staff of the wing were present at TIME .

ORG filed a follow - up report which was made public on DATE . This contained , inter alia , the following comments on the above - mentioned ORG report ( see paragraph CARDINAL above ) :

“ [ re paragraph CARDINAL of the ORG ’s report ]

It is important to note that a guidance and treatment unit ( UOT ) was created at ORG psychiatric wing in DATE . This unit , which has been operational since DATE , comprises a psychiatrist , a deputy director , CARDINAL psychologists , a social worker and an administrative assistant .

The unit has organised a scheme involving co - operation with a social work college which trains prison tutors . As a result , trainee tutors from this college will be able to do the practical part of their course in ORG , under the supervision of the ORG staff .

These trainee tutors will be responsible for designing a work structure capable of being expanded to accommodate other contributions . They will focus essentially on the psychiatric wing and the women ’s wing .

Their aim will be to introduce occupational activities on the psychiatric wing , such as an occupational therapy workshop , an oral expression workshop , sport , etc … .

In addition to the creation of the ORG , referred to above , steps are being taken to recruit a psychiatric nurse and a psychiatrist , for TIME a week . These trained staff will be assigned exclusively to the psychiatric wing .

[ re paragraph CARDINAL of the ORG ’s report ]

Only dormitory accommodation permits continuous ( CARDINAL-hour ) surveillance ; checks on cells could be made , at most ( where the rules require special surveillance ) once TIME .

ORG considers that it is for the doctor in charge of the psychiatric wing to decide whether , in view of each inmate ’s particular condition , he should be placed in the dormitory or in a cell . Therefore , both possibilities should exist side by side .

ORG , it should be remembered that the wing does have a small number of cells ( individual , twin or CARDINAL - bed ) .

It should be explained at the outset that , under section CARDINAL of the Act of DATE ‘ for the protection of society against mental defectives and incorrigible ORG , mental health boards have the power to decide , quite independently , where a person is to be detained .

These administrative authorities , CARDINAL of which exists for each psychiatric wing , are totally autonomous and have judicial powers . Thus , for instance , they can decide to release someone without conditions or on probation .

A release order may be challenged by the public prosecutor . In this event , the case file is referred to a higher mental health board for a ruling . A decision not to release someone , on the other hand , may be challenged by way of an appeal to ORG .

The boards place persons subject to detention orders in special institutions run by ORG ( ORG ( ORG ) and the mental - health sections of PERSON and ORG ) or in institutions run by GPE ( PERSON for women and ORG for men ) or in private psychiatric hospitals which agree to admit them .

It appears that there are particular problems with implementing mental health board placement decisions in ORG ; problems of lack of money and of places .

Historically , the mental health boards in the south of the country have been able to send people subject to detention orders to ORG ( in the case of women ) and ORG ( in the case of men ) . These institutions , which were originally run by the national ORG , and are now run by GPE , bill ORG to defray the cost of looking after the detainees placed with them .

However , over a very short period and without prior notice , these charges , which are fixed by ORG , have increased very sharply , so that the amount allocated in the budget to cover them has turned out to be insufficient . It was necessary to request a further allocation , but this is granted only for DATE .

As regards the problems of capacity , we must point out that the number of places in the ORG and ORG is such that , for DATE now , detainees have spent DATE on prison psychiatric wings before they can actually be transferred to the ORG designated by the relevant mental health board . They are therefore ‘ ORG on a waiting - list in chronological order .

The fact that it is impossible to admit them immediately to their designated institution has led some of their lawyers to apply , almost systematically , to the president of the relevant court of first instance for an injunction to force GPE to implement the boards’ decisions .

While ORG has had orders made against it at first instance in several of these cases – orders backed up by penalties – it is noteworthy that this has not been the case on appeal , where , for instance , it has been held ( see GPE . GPE , DATE ) that ‘ it is not for the ordinary courts to substitute their decision for that of the administrative authority and to order a detainee to be transferred regardless of the problems which that will pose for the administration , such as the choice of another ORG institution or , exceptionally , a private one’ and that , ‘ although LAW is not being fully complied with , the fact that the respondent is forced to mix with persons imprisoned under the ordinary criminal law can not be likened to inhuman or degrading treatment contrary to LAW . Similarly , an appeal decision of the same court of DATE held that ORG could rely on the defence of force majeure as it had neither the LOC nor the staff to comply properly with LAW .

Although no such case is currently pending before ORG , it should be pointed out that on DATE a person subject to a detention order lodged an application against GPE with ORG . This case is still pending at the present time .

It should also be pointed out that , in theory , ORG could provide CARDINAL more places . This extra capacity can be fully utilised only if considerable renovation work on the disused building is carried out and the staff is increased . The renovation project is planned for the medium term ( CARDINAL–CARDINAL ) .

If the spare capacity did become available , the total number of places might attain the ‘ proper’ level . However , this increased capacity would obviously not save the boards having to send people to ORG , which has specialised equipment and staff . It is important to retain that possibility since ORG and private institutions alone are totally insufficient to meet the demand .

Finally , it must be pointed out that the various federal and regional authorities involved in the problem of placing and treating persons subject to detention orders will be liaising in an attempt to find solutions . These negotiations will be organised by a working party to be set up by ORG , which will include representatives of the different parties involved . ”


The applicant is a NORP citizen born in DATE . He is not represented in the proceedings before the ORG . This is his second application under the Convention . His first ( no . MONEY ) was declared inadmissible by ORG DATE .


Violation of Art. 6-1;No violation of Art. 6-1

The applicant was born in DATE and lives in Batman .

On CARDINAL DATE the applicant was arrested in the course of an armed clash between members of the security forces and terrorist militants .

On DATE the applicant 's statements were taken by police officers .

On DATE he was brought before the public prosecutor at ORG . The public prosecutor questioned him in relation to his involvement in terrorist acts . On DATE , the applicant was brought before a single judge of ORG who ordered his detention on remand .

On DATE ORG filed a bill of indictment charging the applicant with carrying out activities for the purpose of bringing about the secession of part of the national territory . The charges were brought under LAW now defunct LAW .

On DATE ORG held a hearing in the presence of a military judge . The applicant admitted that he was a member of an illegal organisation , namely the PERSON .

At the hearing on DATE before ORG , the applicant stated that he was a “ guerrilla ” of the PERSON and apologised to his people and party for not being worthy of the organisation since he had failed to carry out the acts that he had undertaken . He however denied the veracity of the statements which he had given to the police officers .

Between DATE and DATE ORG held CARDINAL hearings and issued decisions to the effect that the case - files concerning other criminal proceedings instituted against the applicant should be obtained from the other courts .

On DATE ORG decided to join CARDINAL cases concerning different accusations against the applicant . It further decided to wait for the arrival of the case - files . The number of accused who were tried together with the applicant attained CARDINAL in total .

DATE and DATE ORG held CARDINAL hearings and postponed each of them with a view to remedying certain procedural shortcomings in respect of the applicant 's co - accused .

The applicant attended the hearing of DATE and claimed that he was under pressure in the prison and that he was hindered from appearing before the court . He did not specify who prevented him from appearing before the court . The court again postponed the hearing with a view to determining the address of CARDINAL of the applicant 's co - accused .

The applicant and his co - accused did not attend the hearing of DATE .

ORG postponed the hearings of DATE , DATE , CARDINAL DATE and DATE pending the arrest of CARDINAL of the applicant 's co - accused . The court also asked the public prosecutor to submit his observations on the merits .

On DATE the public prosecutor submitted his observations on the merits of the case and sought the conviction of the applicant for the offence under LAW . The applicant asked for time to prepare his defence .

The applicant did not attend the hearings of DATE , DATE and CARDINAL DATE . At the hearing held on DATE , the court decided to inform the accused that their defence submissions would be assumed to have been given if they did not attend the next hearing scheduled for DATE .

The applicant did not attend the hearing of DATE and submitted a declaration on behalf of himself and all his co - accused that they would not attend the hearing . The court decided to request the prison authorities to ensure the attendance of the applicant and his co - accused at the hearing of CARDINAL DATE .

NORP The applicant refused to attend the hearings of DATE , CARDINAL DATE , DATE and DATE in protest against the arrest of PERSON .

Meanwhile , on DATE ORG amended Article CARDINAL of the LAW and excluded military members from the state security courts . Following similar amendments made on DATE to the PERSON on ORG , the military judge sitting on the bench of ORG hearing the applicant 's case was replaced by a civilian judge .

The applicant attended the hearing held on DATE and read out his defence submissions . The court informed the accused that the final judgment would be delivered on DATE even if they refused to attend the hearing .

On DATE ORG composed of CARDINAL civilian judges , convicted the applicant as charged and sentenced him to death under LAW . Taking into account the applicant 's behaviour during the trial , the death penalty was commuted to a life sentence . The applicant appealed .

On DATE ORG upheld the judgment of ORG .

The relevant domestic law and practice in force at the material time are outlined in the following judgments : PERSON v. GPE ( no . CARDINAL/CARDINAL , § § DATE , DATE ) , ORG v. GPE [ ORG ] , no . CARDINAL/CARDINAL , § § PERSON , ORG CARDINAL- ... ) .

By PERSON no . CARDINAL of DATE , published in ORG on DATE , state security courts were abolished .


The applicant is a NORP national , born in DATE and living in GPE . She is represented before the Court by PERSON , a lawyer practising in GPE . The respondent Government are represented by Mr PERSON , their Agent .

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

On DATE the applicant claimed before ORG ( Pozemkový úrad ) , pursuant to LAW ( see “ Relevant domestic law ” below ) , restitution of real property which had been confiscated from a person who had been in the applicant ’s care . She submitted further information in support of her claim on DATE and CARDINAL DATE .

On DATE the applicant informed ORG that an agreement on the restitution of the property had not been reached . As a result , ORG was called upon to decide on the applicant ’s claim in accordance with PERSON ( CARDINAL ) of LAW .

On DATE ORG dismissed the claim on the ground that the applicant lacked standing to claim the restitution . The applicant sought a judicial review of this decision .

On DATE ORG ( Krajský súd ) quashed ORG decision as being erroneous .

On DATE the applicant requested ORG ( ORG úrad ) , to which the case had fallen to be examined , to decide on her claim speedily .

On DATE ORG found , with reference to LAW ( CARDINAL ) of LAW , that the land claimed by the applicant could not be restored as it had been transferred to other individuals . The decision further stated that on DATE proceedings had started pursuant to ORG with a view to updating documentation relating to the plots in the area concerned . ORG concluded that it would be able to decide which plots could be restored to the applicant and for which plots she could receive other property in compensation only after the relevant entries were updated and after the existing property rights in respect of the relevant plots were ascertained . It therefore stayed the proceedings concerning the applicant ’s claim pursuant to LAW ( CARDINAL ) and CARDINAL of LAW pending the outcome of the administrative proceedings brought on DATE .

On DATE the applicant lodged a constitutional complaint in which she challenged the ORG decision to stay the proceedings . She argued that there existed no relevant documents showing that the land in question was owned by individuals . The applicant complained that she was discriminated against as other ORG restitution claims had been granted prior to the entry into force of ORG . She further complained that the persons using the land at issue were in a more favourable position as they could possibly become its owners by prescription pursuant to LAW ( CARDINAL) of ORG .

On DATE ORG informed ORG ( Ústavný súd ) that in DATE and in DATE the land confiscated from the applicant ’s relatives had been allocated to other persons . As there existed numerous lacunas in the relevant documents including the entries in the land registry , ORG considered it appropriate to ascertain the existing rights in respect of the land in question prior to deciding on the applicant ’s claim .

In her submissions to ORG of DATE the applicant argued , inter alia , that the decision to stay the proceedings was contrary to LAW ( CARDINAL) ( b ) of ORG .

On DATE ORG found that there had been no violation of the applicant ’s constitutional rights . It noted that the decision to stay the proceedings was of a procedural nature and that it did not determine the applicant ’s rights under LAW . ORG referred to the documents submitted to it by ORG and held it for established that the land in question had been allocated to other persons who had thereby become its owners . In ORG view , ORG decision to stay the proceedings brought by the applicant pending the determination of the existing titles in respect of the relevant property was therefore justified .

ORG considered it irrelevant that in other cases the existing documentation permitted to decide on similar claims without the determination of any preliminary issues . Finally , ORG found erroneous the applicant ’s view that her claim should have been given priority by virtue of LAW ( CARDINAL) ( b ) of ORG .

The proceedings brought under LAW on DATE appear to be still pending .

LAW of DATE

Section CARDINAL ( CARDINAL ) in conjunction with LAW of DATE ( PERSON o správnom konaní ) provides that an administrative authority shall stay proceedings before it when other proceedings concerning a preliminary issue are pending .

Land Ownership Act of DATE

Under LAW ( CARDINAL ) ( a ) of LAW of DATE ( PERSON o úprave vlastníckych vzťahov k pôde a inému poľnohospodárskemu majetku ) , land owned or lawfully used by individuals can not be restored .

Section CARDINAL ( CARDINAL ) provides that in such cases other land of comparable size and quality owned by the ORG is to be transferred to the persons entitled to restitution .

Plots Ownership Adjustment Act of DATE

ORG of DATE ( PERSON o niektorých opatreniach na usporiadanie vlastníctva k pozemkom ) provides for certain measures aiming at , inter alia , updating documentation concerning the size of plots and the relevant legal titles where the data available is incomplete . For this purpose , the competent administrative authorities shall bring proceedings with a view to gathering the existing data and drawing up a new inventory of the plots . After its approval by a special commission such an inventory entitles the persons concerned to have their titles formally entered in the land registry .

Section CARDINAL ( CARDINAL ) of ORG provides that in the course of the proceedings an administrative authority may issue , at the proposal of a party , a decision confirming that the claimant acquired the ownership of a plot by prescription . Pursuant to paragraph CARDINAL ( b ) of the same Section , such a claim can not be granted when the ownership of the plot is claimed by another person in the same proceedings or when it is the subject - matter of different proceedings brought , for example , under LAW .

Complaints Act of DATE

The Complaints Act ( Zákon o sťažnostiach ) was enacted on DATE and entered into force on DATE . It governs registration and examination of complaints lodged by individuals or legal persons alleging , inter alia , that their rights or legally protected interests were violated or jeopardised as a result of an action of a public authority or its failure to act . The explanatory report to LAW expressly states that its provisions extend to , inter alia , delays in proceedings before public authorities .

Pursuant to LAW ) , LAW does not relate to submissions the examination of which is governed by other laws , e.g. complaints about delays in judicial proceedings which fall to be examined pursuant to ORG of DATE .

Section CARDINAL ( CARDINAL ) of the Complaints Act provides , inter alia , that the head of the public authority concerned is responsible for examination of a complaint . When a complaint is directed against the head of a public authority , it falls to be examined by the hierarchically superior authority .

Section CARDINAL provides that a complaint is to be examined within DATE from the date of its receipt . When co - operation of other authorities or persons is required , a complaint should be examined within DATE . In exceptional circumstances the time - limit for examination of a complaint may be extended by DATE .

Under LAW ( CARDINAL ) of LAW , a record has to be drawn of the examination of a complaint . The record shall contain , inter alia , a statement of the relevant facts and also indicate by whom , how and when any shortcomings found have to be remedied . The person concerned is obliged to submit a report on how the conclusions were complied with .

Section CARDINAL ( CARDINAL ) provides for informing the complainant about the outcome of the examination of his or her complaint . When a complaint was found to be justified , the complainant shall also be informed about any measures taken with a view to remedying the shortcomings found .


Violation of Article 6 - Right to a fair trial

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

The applicants were born in DATE and DATE respectively and live in GPE . The facts common to these cases are that the applicants were arrested and placed in custody in different times and places . During their custody period , they were interrogated by the police , the public prosecutor and the investigating judge respectively , in the absence of a lawyer . These statements were subsequently used for their convictions by the trial court .

The details concerning the CARDINAL applications are indicated in the table below .