Violation of Art. 14+5;Non-pecuniary damage - award

David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Päivi Hirvelä

The applicant was born in DATE and lives in LOC .

On DATE the applicant was sentenced to DATE imprisonment for serious crimes including attempted murder , which carried a maximum sentence of life imprisonment . Under the legislative regime applicable at the time , he became eligible for release on parole on DATE and entitled to release on DATE ( see paragraphs CARDINAL and CARDINAL below ) .

On DATE ORG recommended the applicant 's release on parole on the grounds that the risk to the public had been significantly reduced ; that the proposed resettlement plan would secure his rehabilitation ; and that the applicant would comply with the licence conditions .

Under the legislation in force at the time , the final decision on early release in cases involving prisoners serving determinate sentences ( i.e. fixed - term sentences ) of DATE imprisonment lay with the Secretary of ORG ( see paragraphs CARDINAL - CARDINAL below ) . For prisoners serving determinate sentences of DATE and for prisoners serving indeterminate ( i.e. life ) sentences , the approval of the Secretary of ORG following a positive recommendation of ORG was not required . On DATE the Secretary of ORG rejected the recommendation of ORG in the applicant 's case , concluding that the release of the applicant would present an unacceptable risk to the public . As a result , the applicant was not released .

On DATE , the applicant was granted leave to bring judicial review proceedings in respect of the decision of the Secretary of ORG to refuse his early release . His principal ground of challenge was that it was a breach of LAW taken together with LAW that the Secretary of ORG should retain the power to determine the release on parole licence of CARDINAL group of prisoners , i.e. those who were serving determinate terms of imprisonment of DATE or more ( see paragraphs DATE below for details of the law in force at the relevant time ) .

ORG subsequently reconsidered the applicant 's case and on DATE did not recommend release . The ORG has not been provided with details of the reasons for this decision .

On DATE , ORG dismissed the applicant 's judicial review claim . For the purposes of the proceedings , the Secretary of ORG accepted that the question of early release from a determinate sentence fell within the ambit of LAW and that LAW was therefore engaged . PERSON found that there was differential treatment between analogous groups , namely those serving sentences of DATE or more and those serving sentences of DATE , in that prisoners serving sentences of DATE or more had to secure a recommendation from ORG and approval from the Secretary of ORG whereas those serving DATE needed only a recommendation from ORG . However , he considered that the differential treatment pursued the legitimate aim of reserving to a politically and democratically accountable minister the power to control the release of those serving long determinate sentences . He further considered that the power was proportionate in light of the problems posed by such prisoners for public safety and public order . Accordingly , he found that there was no violation of LAW together with LAW .

On DATE , the applicant was granted leave to appeal to ORG .

ORG subsequently reconsidered the applicant 's case and on DATE once again recommended the applicant 's release . On this occasion the Secretary of ORG accepted the recommendation , and on DATE Mr PERSON was released on licence .

On DATE , ORG endorsed the judgment of ORG and dismissed the applicant 's appeal . It found the question of release from a determinate sentence to be arguably within the ambit of LAW and agreed with ORG that although there was differential treatment CARDINAL comparable groups , this difference in treatment was objectively justified in that it pursued a legitimate aim and was proportionate .

The applicant was granted leave to appeal to ORG .

On DATE , their Lordships unanimously dismissed the applicant 's appeal . They agreed that the right to seek early release , where domestic law provided for such a right , was clearly within the ambit of LAW . Lord PERSON of PERSON noted ( at paragraphs CARDINAL - CARDINAL ) :

“ The ORG does not require member states to establish a scheme for early release of those sentenced to imprisonment . Prisoners may , consistently with the LAW , be required to serve DATE of the sentence passed by the judge , or be detained until a predetermined period or proportion of the sentence has been served , if that is what domestic law provides . But this is not what the law of GPE and GPE provided , in respect of long - term determinate prisoners , at the times relevant to these appeals . That law provided for a time at which ( subject to additional days of custody imposed for disciplinary breaches ) a prisoner must , as a matter of right , be released , and an earlier time at which he might be released if it was judged safe to release him but at which he need not be released if it was not so judged .

A number of grounds ( economy and the need to relieve over - crowding in prisons ) have doubtless been relied on when introducing pre - release schemes from determinate sentences such as those under consideration here . But CARDINAL such consideration is recognition that neither the public interest nor the interest of the offender is well served by continuing to detain a prisoner until the end of his publicly pronounced sentence ; that in some cases those interests will be best served by releasing the prisoner at the earlier , discretionary , stage ; and that in those cases prisoners should regain their freedom ( even if subject to restrictions ) because there is judged to be no continuing interest in depriving them of it . I accordingly find that the right to seek early release , where domestic law provides for such a right , is clearly within the ambit of article CARDINAL , and differential treatment of CARDINAL prisoner as compared with another , otherwise than on the merits of their respective cases , gives rise to a potential complaint under LAW . ”

NORP However , unlike the lower courts , and with some hesitation , their Lordships did not find the difference in treatment in the applicant 's case to be the result of his “ status ” , such as to fall within the prohibition on discrimination in LAW . Lord PERSON said ( at paragraph CARDINAL ) :

“ I do not think that a personal characteristic can be defined by the differential treatment of which a person complains . But here Mr PERSON does not complain of the sentence passed upon him , but of being denied a definitive ORG recommendation . Is his classification as a prisoner serving a determinate sentence of DATE or more ( but less than life ) a personal characteristic ? I find it difficult to apply so elusive a test . But I would incline to regard a life sentence as an acquired personal characteristic and a lifer as having an ' other status ' , and it is hard to see why the classification of Mr PERSON , based on the length of his sentence and not the nature of his offences , should be differently regarded . I think , however , that a domestic court should hesitate to apply the Convention in a manner not , as I understand , explicitly or impliedly authorised by the GPE jurisprudence , and I would accordingly , not without hesitation , resolve this question in favour of the Secretary of ORG and against Mr PERSON . ”

Lord Hope of PERSON made similar observations ( at paragraphs DATE ) :

“ It could be said in Mr PERSON 's case that the length of his sentence did confer a status on him which can be regarded as a personal characteristic . This is because prisoners are divided by the domestic system into broadly defined categories , or groups of people , according to the nature or the length of their sentences . These categories affect the way they are then dealt with throughout the period of their sentences . As a result they are regarded as having acquired a distinctive status which attaches itself to them personally for the purposes of the regime in which they are required to serve their sentences . This is most obviously so in the case of prisoners serving life sentences and where distinctions are drawn between short - term and long - term prisoners serving determinate sentences . It is less obviously so in the case of long - term prisoners serving determinate sentences of different lengths .

It must be accepted , as Lord PERSON points out , that a personal characteristic can not be defined by the differential treatment of which a person complains . It is plain too that the category of long - term prisoner into which Mr PERSON 's case falls would not have been recognised as a separate category had it not been for the Order which treats prisoners in his group differently from others in the enjoyment of their fundamental right to liberty . But he had already been sentenced , and he had already acquired the status which that sentence gave him before the Order was made that denied prisoners in his group the right to release on the recommendation of ORG . The question which his case raises is whether the distinguishing feature or characteristic which enables persons or a group of persons to be singled out for separate treatment must have been identified as a personal characteristic before it is used for this purpose by the discriminator .

The function of article CARDINAL , read with LAW , is to secure to everyone within the jurisdiction of the High Contracting Parties the enjoyment of the rights and freedoms set out in CARDINAL of the LAW without discrimination on grounds which , having regard to the underlying values of the LAW , must be regarded as unacceptable . This suggests that a generous meaning should be given to the words ' or other status ' while recognising , of course , that the proscribed grounds are not unlimited . It seems to me , on this approach , that the protection of article CARDINAL ought not to be denied just because the distinguishing feature which enabled the discriminator to treat persons or groups of persons differently in the enjoyment of their LAW rights had not previously been recognised .

But the GPE jurisprudence has not yet addressed this question and , as my noble and learned friend Baroness PERSON of GPE points out , it is possible to regard what he has done , rather than who or what he is , as the true reason for the difference of treatment in Mr PERSON 's case ... [ T]he duty of national courts is to keep pace with the GPE jurisprudence as it evolves over time . A measure of self - restraint is needed , lest we stretch our own jurisprudence beyond that which is shared by all GPE Parties to the Convention . I am persuaded , with some reluctance , that it is not open to us to resolve the second agreed issue in Mr PERSON 's favour . ”

Baroness PERSON of GPE considered ( at paragraphs DATE ) that :

“ it is plain ... that a different parole regime for foreigners who are liable to deportation from that applicable to citizens or others with the right to remain here , falls within the grounds proscribed by LAW and thus ... requires objective justification . The same would surely apply to a difference in treatment based on race , sex or the colour of one 's hair . But a difference in treatment based on the seriousness of the offence would fall outside those grounds . The real reason for the distinction is not a personal characteristic of the offender but what the offender has done .

The result is that the difference of treatment between Mr PERSON and people sentenced either to shorter determinate sentences or to life imprisonment is not covered by LAW at all . The law may look odd . But not every apparent anomaly is a breach of Convention rights . This one is the result of what the ORG Secretary chose to do in relation to people sentenced to shorter terms of imprisonment and what he was obliged by the terms of article CARDINAL itself to do in relation to life imprisonment . The law has since been changed and one can well understand why . But it is not for us to declare legislation which ORG has passed incompatible with the Convention rights unless the ORG and its case law require us so to do . For the reasons given above , in amplification of those given by my noble and learned friend , Lord GPE of Cornhill , we are not required to do so in this case . ”

Notwithstanding the conclusion of the ORG as to the applicability of LAW of ORG - under - Heywood went on to consider whether , had there been “ status ” , the difference in treatment would have been objectively justified . Lord PERSON ( at paragraph CARDINAL ) was of the view that :

“ When , in DATE , the Secretary of ORG rejected ORG recommendation that Mr PERSON be released on parole , discretionary lifers and ORG detainees had already been brought within the definitive jurisdiction of ORG , and GPE v GPE ( DATE ) CARDINAL EHRR CARDINAL , requiring the same procedure for mandatory lifers , had already been decided . The differential treatment of prisoners serving DATE or more had , in my opinion , become an anomaly . That would not , in itself , be a ground for holding it to be unjustified . Anomalies are commonplace . But by DATE it had , in my opinion , become an indefensible anomaly because it had by then come to be recognised that assessment of the risk presented by any individual prisoner , in the application of publicly promulgated criteria , was a task with no political content and one to which the Secretary of ORG could not ( and did not claim to ) bring any superior expertise . I would accordingly resolve this issue in favour of PERSON and against the Secretary of ORG . ”

Lord PERSON agreed with the conclusion of Lord PERSON .

Under sections CARDINAL of LAW DATE , all determinate and indeterminate sentence prisoners were eligible for discretionary release on licence after serving specified minimum amounts of their sentences . In both cases , once ORG had recommended release , the Secretary of ORG had discretion to decide whether to release a prisoner .

The law regarding release of prisoners on parole was subsequently changed by LAW DATE ( “ the DATE LAW ) and ORG “ the DATE LAW ) , as amended .

Sections DATE Act created a duty to release fixed term and discretionary life prisoners once they had served a specified period of detention . Section CARDINAL provided , in so far as relevant , as follows :

“ Duty to release short - term and long - term prisoners

( CARDINAL ) As soon as a short - term prisoner has served CARDINAL of his sentence , it shall be the duty of the Secretary of State—

( a ) to release him unconditionally if that sentence is for a term of DATE ; and

( b ) to release him on licence if that sentence is for a term of DATE or more .

( CARDINAL ) As soon as a long - term prisoner has served CARDINAL of his sentence , it shall be the duty of the Secretary of ORG to release him on licence .

Section CARDINAL(CARDINAL ) defined “ short - term ” and “ long - term ” prisoners :

“ In this Part—

' long - term prisoner ' means a person serving a sentence of imprisonment for a term of DATE or more ;

' short - term prisoner ' means a person serving a sentence of imprisonment for a term of DATE . ”

Section CARDINAL dealt with the early release of discretionary life prisoners :

“ Duty to release discretionary life prisoners

( CARDINAL ) A life prisoner is a discretionary life prisoner for the purposes of this Part if—

( a ) his sentence was imposed for a violent or sexual offence the sentence for which is not fixed by law ; and

( b ) the court by which he was sentenced for that offence ordered that this section should apply to him as soon as he had served a part of his sentence specified in the order .

( CARDINAL ) As soon as , in the case of a discretionary life prisoner—

( a ) he has served the part of his sentence specified in the order ... ; and

( b ) the [ ORG has directed his release under this section ,

it shall be the duty of the Secretary of ORG to release him on licence . ”

Section CARDINAL provided for an additional discretionary power to release long - term prisoners before the CARDINAL point of their sentence and provided that :

“ ( CARDINAL ) After a long - term prisoner has served CARDINAL of his sentence , the Secretary of ORG may , if recommended to do so by the [ ORG , release him on licence . ”

Section CARDINAL provided a power for the Secretary of ORG to reduce the period of detention which had to be served before long - term prisoners became entitled to release upon a recommendation of ORG by converting his discretionary power set out in CARDINAL into a duty in relation to a specified class of prisoners . It provided that :

“ ( CARDINAL ) The Secretary of ORG , after consultation with the [ ORG , may by order made by statutory instrument provide that , in relation to such class of case as may be specified in the order , the provisions of this Part specified in subsections ( CARDINAL ) to ( CARDINAL ) below shall have effect subject to the modifications so specified .

( CARDINAL ) In LAW above , in subsection ( CARDINAL ) for the word ' may ' there shall be substituted the word ' shall ' ... ”

NORP The Secretary of ORG exercised the power provided to him under section CARDINAL of the DATE Act on CARDINAL occasions . Under ORG ( ORG ) Order DATE his LAW discretion to release longterm prisoners serving a sentence of imprisonment for a term of DATE was transformed into a duty . The subsequent ORG ( ORG ) Order DATE transformed the discretion into a duty for prisoners serving a sentence of imprisonment for a term of DATE . For those serving sentences of DATE or more , the Secretary of ORG retained his discretion to order early release after the halfway point and before CARDINAL of the sentence had been served .

Section CARDINAL of LAW was originally enacted and later amended following judgments of this Court in PERSON v. the GPE , DATE , Reports of Judgments and Decisions DATE and GPE v. GPE [ ORG ] , no . CARDINAL , ORG CARDINALIV . It provides , insofar as relevant :

“ CARDINAL . Duty to release certain life prisoners .

( CARDINAL ) This section applies to a life prisoner in respect of whom a minimum term order has been made and any reference in this section to the relevant part of such a prisoner 's sentence is a reference to the part of the sentence specified in the order .

( CARDINAL ) As soon as–

( a ) a life prisoner to whom this section applies has served the relevant part of his sentence ; and

( b ) ORG has directed his release under this section ,

( CARDINAL ) The Parole Board shall not give a direction under subsection ( CARDINAL ) above with respect to a life prisoner to whom this section applies unless–

( a ) the Secretary of ORG has referred the prisoner 's case to the ORG ; and

( b ) the ORG is satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined . ”

Section CARDINAL sets out the definition of “ life prisoner ” , which covers prisoners serving various different types of indeterminate sentence .

The law regarding the early release of long - term determinate prisoners was amended by LAW DATE , which entered into force on DATE . The new provisions regarding release on licence provide , insofar as relevant , as follows :

“ CARDINAL ( CARDINAL ) As soon as a fixed - term prisoner ... has served the requisite custodial period , it is the duty of the Secretary of ORG to release him on licence under this section .

( CARDINAL ) In this section ' the requisite custodial period ' means—

( a ) in relation to a person serving a sentence of imprisonment for a term of DATE or more ... CARDINAL of his sentence ... ”

The above provisions apply to prisoners who committed their offences after DATE or whose parole eligibility date fell after DATE and whose offence was not a specified violent or sexual offence .

Section CARDINAL of the Coroners and Justice Act DATE further amended the law on early release to remove the difference in treatment of prisoners depending on their conviction or parole eligibility dates . It amended section CARDINAL of the DATE Act to provide for a duty , instead of a discretion , on the Secretary of ORG to release all long - term prisoners upon a recommendation from ORG . This provision is not yet in force .

Once section CARDINAL has entered into force , only prisoners serving life sentences with whole life tariffs will require the approval of the Secretary of ORG for early release . For all other prisoners , early release will either be automatic or automatic upon a recommendation of ORG .


Giovanni Bonello;Ján Šikuta;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Päivi Hirvelä

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

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

The applicant ’s wife died on DATE . On DATE the applicant applied for widows’ benefits for the second time . On DATE the applicant was informed that his claim would not be considered as he was not a woman . On DATE the applicant again applied for widows’ benefits . On DATE the applicant was informed that his claim had been disallowed as he was not a woman . On DATE the applicant appealed . On DATE he was informed that the decision remained unchanged . The applicant did not appeal further as he considered or was advised that such a remedy would be bound to fail since no such social security benefit was payable to widowers under GPE law .

The applicant ceased to be eligible for child benefit on DATE ; therefore , he was not in receipt of child benefit at the time of his claim .

The domestic law relevant to this application is set out in PERSON v. the GPE , no . CARDINAL , § § DATE , ORG CARDINAL-IV and Runkee and White v. GPE , no . CARDINAL , § § CARDINAL , DATE .


Violation of Art. 6-1;Violation of P1-1;Not necessary to examine Art. 13;Pecuniary damage - financial award;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - domestic and convention proceedings

The applicant was born in DATE and lives in GPE .

The applicant receives welfare payments for her child . In DATE she brought civil proceedings against a local welfare authority , claiming arrears in those payments for DATE .

On DATE the ORG of GPE awarded the applicant MONEY ( RUR ) . This judgment entered into force on DATE .

On DATE a writ of execution was issued and sent to the bailiffs .

On DATE the bailiffs discontinued the enforcement proceedings in respect of the judgment of CARDINAL DATE and returned the writ of execution to the applicant , as the debtor had insufficient funds .

In DATE the applicant was paid the amount due pursuant to the writ of execution .

Section CARDINAL of LAW of DATE provides that a bailiff ’s order on the institution of enforcement proceedings must fix a time - limit for the defendant ’s voluntary compliance with a writ of execution . The time - limit may not exceed DATE . The bailiff must also warn the defendant that coercive action will follow , should the defendant fail to comply with the time - limit .

Under LAW of the LAW , the enforcement proceedings should be completed within DATE of the receipt of the writ of enforcement by the bailiff .


CASE OF GAGLIANO GIORGI v. ITALY [Extracts]

Remainder inadmissible (Article 35-3-b - No significant disadvantage;Continued examination not justified;Case duly considered by a domestic tribunal);Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Criminal proceedings;Article 6-1 - Reasonable time);Non-pecuniary damage - award

Françoise Tulkens;Guido Raimondi;Helen Keller;Paulo Pinto De Albuquerque

NORP The applicant , Mr PERSON , is an NORP national who was born in DATE and lives in GPE . The application was lodged with the Court on DATE . The applicant was represented before the ORG by Mr PERSON and PERSON , lawyers practising in GPE . ORG ( “ the Government ” ) were represented by their Agent , PERSON , and their co - Agent , Mr PERSON .

NORP The facts of the case , as set out by the parties , may be summarised as follows .

NORP The applicant was an inspector with ORG ( PERSON ) .

By a decree of CARDINAL DATE , served DATE , ORG public prosecutor ’s office informed the applicant that proceedings had been instituted against him for extortion ( Articles CARDINAL and CARDINAL of LAW ) and ordered searches of the applicant ’s house , car and office , which were carried out on DATE .

On DATE the applicant ’s computer was seized .

On DATE the investigating judge at ORG ordered new searches , which were carried out DATE . Also on DATE , the judge issued a warrant for the applicant ’s arrest on charges of extortion ( Articles CARDINAL and CARDINAL of LAW ) and forgery ( LAW of the same LAW ) . The applicant was accused of having forced or pressured aliens in need of residence papers to pay him sums of money in order to obtain their papers from ORG , and of having altered the record of statements by a foreign national who had denounced this practice . The judge also ordered the arrest of CARDINAL other people implicated in the same dealings .

On DATE the Prefect ( Questore ) of GPE suspended the applicant from duty .

On DATE , in response to the applicant ’s third request , the judge ordered his release on the ground that the prosecutor ’s office had collected enough evidence so that there was no longer any risk of his concealing evidence .

On DATE the judge ordered that the applicant be committed for trial before ORG ( RG no . CARDINAL/CARDINAL ) . CARDINAL other people were also committed for trial .

QUANTITY hearings were held between CARDINAL and DATE , at which the facts were examined and statements heard . In a judgment of CARDINAL DATE , deposited with the registry on DATE , the court found the applicant guilty of extortion and forgery , sentenced him to DATE and CARDINAL months’ imprisonment and banned him from public office for life .

On CARDINAL DATE the applicant challenged that judgment before ORG ( ORG no . CARDINAL ) , calling for a new investigation and hearings , his acquittal or the reclassification of the offence as bribery .

On DATE , before the ORG , the applicant elected the municipality of GPE ( GPE ) , care of PERSON , as his address for service in the proceedings before ORG .

In a judgment of CARDINAL DATE , deposited with the registry on DATE , ORG upheld the applicant ’s conviction on some of the extortion charges against him and reduced his total sentence to DATE for extortion and forgery .

On DATE the applicant appealed on points of law , requesting as his primary submission that the judgment of ORG be set aside because the summons to a hearing on DATE had been served on him at his lawyer ’s address and not the address he had elected on DATE . In the alternative , he again requested the reclassification of the offences as bribery .

In a judgment of DATE , deposited with the registry on DATE , ORG set aside ORG judgment and referred the case back to another section of that court , inter alia , because the summons had been served at the wrong address .

In the meantime , on DATE the Questore of GPE reversed the decision to suspend the applicant from duty . The applicant was transferred to the PERSON in GPE .

The hearing of the parties’ submissions before ORG ( ORG no . CARDINAL/CARDINAL ) was scheduled for DATE . On an unspecified date ORG decided to try the applicant in absentia .

In a judgment of DATE , deposited with the registry on CARDINAL DATE , ORG , after it had reclassified the charges as bribery , declared the prosecution time - barred . It sentenced the applicant to DATE imprisonment for forgery , suspended the sentence and debarred him from public office for DATE as an ancillary penalty .

On an unspecified date before DATE , the applicant lodged a new appeal on points of law . He pointed out that in serving the summons at his elected address , care of PERSON , the registry of the court had wrongly addressed the registered letter to PERSON and not to the applicant .

In a judgment of DATE , deposited with the registry on DATE , ORG allowed the applicant ’s appeal and sent the case back to another section of ORG .

On an unspecified date the registry of ORG served a summons to attend a hearing on DATE ( RG no . CARDINAL ) on CARDINAL of the applicant ’s lawyers .

On that same date ORG declared the summons null and void and ordered the police to serve a summons to a hearing on DATE at the address of PERSON and at the PERSON in GPE , where the applicant had started to work in the meantime .

Following the hearing on DATE , in a judgment delivered that DATE and deposited with the registry on DATE , ORG declared the bribery charge time - barred and upheld the applicant ’s DATE suspended prison sentence for forgery and , as an ancillary penalty , debarred him from public office for DATE .

On DATE the applicant again appealed on points of law . He alleged that the summons to the hearing of CARDINAL DATE , served care of PERSON , had not correctly indicated the competent judicial authority , and that the summons served at the PERSON where he worked was not valid because it had been given to his hierarchical superior .

In a judgment of DATE , deposited with the registry on CARDINAL DATE , ORG dismissed the applicant ’s appeal on the ground that , according to that court ’s case - law , when a summons was served on the addressee ’s hierarchical superior , it was assumed that the addressee had been notified and that the summons was therefore valid .

On DATE the applicant lodged application no . CARDINAL with the ORG , concerning the fairness of the criminal proceedings against him .

On DATE the ORG declared the application manifestly ill - founded , in conformity with LAW ( “ the LAW ) .

On DATE the applicant applied to ORG under the “ Pinto Act ” , claiming MONEY ( MONEY ( ORG ) ) for the pecuniary and non - pecuniary damage allegedly sustained because of the length of the principal proceedings .

In a decision deposited on DATE , ORG found that there had been a breach of LAW only in respect of the period from the judgment of ORG ( DATE ) to the delivery of the first judgment on appeal ( DATE ) . It considered , in view of the number of courts that had examined the case , that there had been no undue delays in the other phases of the proceedings . It awarded no compensation , considering that the applicant had not demonstrated that he had suffered any pecuniary or non - pecuniary damage and that , in any event , having been convicted at the end of the main proceedings , he could not have sustained any non - pecuniary damage related to their duration .

On DATE the applicant appealed on points of law . In a judgment deposited on DATE , ORG quashed the impugned decision , holding that the unfavourable outcome of the proceedings did not , in itself , preclude the existence of non - pecuniary damage related to their duration , and also that an allegation of damage caused as a result of the excessive length of proceedings had to be substantiated . The case was remitted to ORG .

On DATE the applicant applied to that court , arguing , inter alia , that subsequent to the judgment of DATE ORG had delivered CARDINAL judgments ( nos . CARDINAL , DATE , DATE and DATE of DATE ) ruling that it was not necessary to demonstrate the existence of non - pecuniary damage .

In a decision of DATE , deposited on DATE , ORG rejected the appeal , on the grounds that the principles arising from the judgments of ORG were not directly applicable in retrial proceedings and that the applicant had not substantiated his claim of non - pecuniary damage as he should have done . It also found that it had been in his interest to prolong the criminal proceedings so that the offences with which he was charged would become time - barred .

On DATE the applicant appealed on points of law . In a judgment deposited on DATE , ORG dismissed the appeal and ordered the applicant to pay ORG CARDINAL,CARDINAL in costs and expenses .


The applicant , Mr PERSON , claims to be a NORP national who was born in DATE . At the time of the events complained of he was staying in the holding centre for asylum seekers and illegal immigrants ( grenshospitum ) at GPE ( GPE ) Airport . He is represented before the ORG by PERSON P.A. Blaas , a lawyer practising in ' s - Hertogenbosch . The respondent Government are represented by their Agent , Mr R.A.A. Böcker , of ORG .

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

The applicant arrived at GPE ( GPE ) FAC on DATE . An officer of ORG ( ORG ) initially refused him admission to the country on the ground that he did not hold a valid passport , and that he had insufficient means either to provide for his own subsistence in the GPE or to cover the cost of his journey to a destination outside the GPE . When the applicant then asked for asylum , the same officer ordered that he be detained in the asylum application centre ( aanmeldcentrum ) at GPE for the purposes of prevention of unauthorised entry into the GPE , in accordance with LAW and CARDINAL of LAW ( Vreemdelingenwet ) .

In an asylum application centre , and following an initial intake interview with the asylum seeker , the GPE immigration authorities make the first selection between prima facie unfounded and possibly founded asylum requests . Petitioners falling within the latter category are transferred to a reception and investigation centre for asylum seekers ( opvang- en onderzoekscentrum ) , whereas petitioners falling within the former category remain in detention in the asylum application centre pending the determination of their asylum request , which may be dealt with in an accelerated procedure if they do not require a time - consuming investigation ; the accelereated procedure means that the asylum request can be processed with all due care within TIME .

On CARDINAL and DATE the applicant was interviewed by an immigration official in relation to his asylum request . On DATE , on the basis of these interviews , the Minister for ORG ( Minister PERSON ) rejected the applicant 's asylum application . Apart from the fact that he had not submitted any documents capable of demonstrating his identity , nationality or travel itinerary , the applicant was deemed to have insufficiently cooperated in the establishment of his travel itinerary , since he had provided virtually no tangible or verifiable statements about his journey ( departure and arrival times of the airplane(s ) , the name and/or logo of the airline company , and whether or not the airplane had made a stop - over ) . Given the applicant 's inability to answer a large number of elementary and basic questions about GPE and his alleged area of origin , the Minister also had doubts as to whether the applicant was a NORP national or of PERSON origin . The Minister further maintained the aliens ' detention order . On DATE the applicant appealed to ORG ( rechtbank ) of GPE against his placement in aliens ' detention .

ORG held a hearing on DATE . The applicant 's counsel – referring to ORG judgment in the case of PERSON v. GPE ( nos . CARDINAL and CARDINAL , DATE ) DATE argued that a measure whereby a non - judicial authority issues a detention order can only justify detention for DATE and that , consequently , his detention after CARDINAL DATE had to be regarded as unlawful . The Minister submitted , inter alia , that an application for a laissez - passer had already been filed but that no date had yet been fixed to present the applicant to the GPE authorities .

ORG gave its decision on DATE . Referring to a precedent set by ORG ( Afdeling Bestuursrechtspraak ) of ORG ( PERSON ) in a ruling of CARDINAL DATE ( see below under “ Relevant domestic law ” ) , it dismissed the appeal .

On DATE the applicant lodged an appeal against the decision of CARDINAL DATE with ORG . He raised CARDINAL complaint , namely that ORG had unjustly failed to acknowledge that , where a detention order has been issued by an administrative authority , the alien concerned must DATE pursuant to the ORG 's considerations in its ORG judgment DATE be brought before a judge within DATE .

On DATE ORG dismissed the further appeal , confining its reasoning to a reference to its earlier ruling of CARDINAL DATE . No further appeal lay against this ruling .

Until DATE the admission , residence and expulsion of aliens were regulated by LAW DATE ( PERSON ; “ the Aliens Act DATE ” ) . Further rules were set out in LAW DATE ( Vreemdelingenbesluit ) , the Regulation on Aliens ( Voorschrift Vreemdelingen ) and LAW DATE ( PERSON ) . LAW ( PERSON ) applied to proceedings under LAW DATE , unless indicated otherwise in this Act .

On DATE the Aliens Act DATE and the associated regulations were replaced by LAW , the CARDINAL LAW , the DATE Regulation on Aliens and LAW . Unless indicated otherwise in LAW , LAW continued to apply to proceedings on requests by aliens for admission and residence .

LAW , in so far as relevant to the case , provides :

“ CARDINAL . An alien who has been refused permission to enter the GPE may be obliged to remain in a space or area indicated by an official charged with border control .

A space or area as referred to in the first paragraph may be secured against unauthorised departure . ... ”

“ In derogation from LAW on ORG ( PERSON ) , no appeal lies against a decision of ORG ... :

a. about a decision or act based on LAW CARDINAL[of LAW CARDINAL ] ... ”

“ CARDINAL . Our [ competent ] Minister shall notify ORG of a decision to impose deprivation of liberty as referred to in DATE ... [ of LAW ] no later than DATE after communication of the decision , unless the alien himself has lodged an appeal first . As soon as ORG has received the notification , the alien shall be deemed to have lodged an appeal against the said decision imposing deprivation of liberty . The appeal shall also constitute a request for the award of damages .

The Regional Court shall immediately fix the date of a hearing . The hearing shall take place TIME after the receipt of the written statement of appeal or the notification . ... In derogation from LAW , the delay referred to in that Article can not be prolonged .

The Regional Court shall give judgment orally or in writing . A written judgment shall be given within DATE of the conclusion of the hearing . In derogation from Article QUANTITY of LAW , the delay referred to in that LAW can not be prolonged .

NORP If ORG finds on appeal that the application or implementation of the decision [ to impose deprivation of liberty ] is contrary to this LAW or is – on consideration of all the interests involved – not reasonably justified , it shall accept the appeal . In such a case the ORG shall order that the deprivation of liberty be terminated or the manner of its implementation altered . ”

Article CARDINAL

“ CARDINAL . In derogation from DATE under a. , an appeal to ORG of ORG lies against a ruling given by ORG as referred to in LAW ... ”

Article CARDINAL

“ CARDINAL . Should ORG reject as unfounded an appeal within the meaning of Article CARDINAL and [ should ] the deprivation of liberty continue , Our Minister shall notify ORG of the continuation of the deprivation of liberty DATE after the ruling within the meaning of LAW has been given , unless the alien himself has lodged an appeal first . As soon as ORG has received the notification , the alien shall be deemed to have lodged an appeal against the decision to prolong the decision imposing deprivation of liberty . ”

Pursuant to LAW , as in force until DATE , the delay within which the Minister was to notify ORG of the placement of an individual in aliens ' detention was DATE and ORG was to hold a hearing DATE after receipt of the appeal . On DATE an amendment to LAW entered into force , prolonging these time - limits to CARDINAL and DATE respectively . In practice , this meant a revival of the legal situation that existed until DATE in respect of these CARDINAL time - limits under the former Aliens Act DATE and associated regulations ( for further details , see PERSON GPE ( dec . ) , nos . FAC and CARDINAL , DATE , under “ Relevant domestic law and practice ” ) .

LAW CARDINAL of LAW stipulates that there is no time - limit for filing an appeal within the meaning of LAW and CARDINAL of the DATE LAW and that an appeal referred to in Article CARDINAL must be filed within DATE . Accordingly , an individual placed in aliens ' detention may in principle file as many appeals against this placement as he or she sees fit . When the lawfulness of a decision to place an individual in aliens ' detention has been determined for a first time , the examination of any subsequent appeal in this respect will be limited to the lawfulness of the continuation of the placement in aliens ' detention . Pursuant to LAW , no appeal to ORG lies against a decision by ORG on such a subsequent appeal ( ORG , DATE , case no . CARDINAL/CARDINAL ) . The hearing and determination of any such subsequent appeal are subject to the same mandatory time - limits as those for a first appeal ( ORG of GPE sitting in GPE , DATE , case no . ORG CARDINAL/CARDINAL ) .

According to a ruling given by ORG on DATE ( ORG ( Immigration Law Reports – “ JV ” ) CARDINAL ) , the time - limit set out in LAW is of a strict mandatory nature . If this time - limit has not been respected , the placement in aliens ' detention becomes unlawful on DATE following DATE on which this time - limit expired .

In a ruling handed down on CARDINAL DATE ( JV CARDINAL/CARDINAL ) , ORG held , in so far as relevant for the present case :

“ The judgment of ORG [ in the case of PERSON v. GPE ] of DATE , relied on by the [ appellant ] , concerns the continued detention of aliens against whom an expulsion or extradition procedure was no longer pending , for which continued detention there was no legal basis . Consequently , the detention had lost its lawful character and thus did not fall within the scope of CARDINAL of the permissible grounds of deprivation of liberty as listed in an exhaustive manner in LAW . In this light , ORG understands the judgment and in particular the reasoning set out in paragraph CARDINAL to mean that the Court – in assessing such detention – incorporates the rationale of Article CARDINAL taken as a whole and , in that context , also considers relevant the guarantees for legal protection and legal certainty as incorporated in the third paragraph of [ LAW ] . Noting this as well as the [ decisions on admissibility taken by ] ORG in the case PERSON GPE [ no . MONEY , DATE ] and ORG and Others v. GPE [ CARDINAL , DATE ] , ORG is of the opinion that the ORG did not have the intention to consider LAW applicable by analogy to the detention of aliens in accordance with [ LAW ( f ) of the LAW ] , which would also be at variance with the wording of [ LAW ] . In this connection ORG also finds of relevance that the ORG , in its [ decision on admissibility ] in the case of GPE v. the GPE ( no . CARDINAL , DATE ) found that there was no reason for holding that there was a violation of LAW , as the alien concerned who had been placed in aliens ' detention under LAW [ as in force until DATE ] could at any point challenge the lawfulness of [ that ] detention before [ a ] judge , who should determine [ this issue ] speedily . ORG did not conduct an additional examination of the matter under [ LAW ] . In accordance with LAW and LAW and DATE ) of LAW DATE an alien may also at present file an appeal at any point against a decision imposing deprivation of liberty . ”

As there is no statutory fixed maximum duration of a placement in aliens ' detention for the purpose of preventing unauthorised entry into the country or expulsion , an alien refused admission or whose expulsion has been ordered may , in principle , remain in aliens ' detention for an unlimited period of time , provided there are reasonable prospects for departure or expulsion within the foreseeable future . However , it has been established in domestic case - law that the interest of an alien to be released from aliens ' detention increases with the passage of time . Where a placement in aliens ' detention exceeds a period of DATE , the alien 's interest in being released may – but not necessarily – be accepted as having become greater than the interest in keeping him in detention for the purpose of preventing unauthorised entry . Depending on the specific circumstances of each case , this turning point may be attained DATE when , for instance , the alien concerned insufficiently cooperates in the determination of his / her identity and nationality and in making documents available . However , once an alien has spent DATE in aliens ' detention for the purpose of preventing unauthorised entry , the judge is to verify more thoroughly whether the authorities have complied with their obligation to do whatever they can do to facilitate the alien 's departure to a destination outside of the GPE ( see , ORG of The GPE sitting in GPE , DATE , GPE ( National Case - law ( database ) number ) – “ LJN ” ) AUCARDINAL with further references ) .


Violation of Art. 6-1 with regard to non-communication of prosecutor's submissions;Not necessary to examine Art. 6-1 with regard to lack of oral hearing;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award

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

At the material time the applicant was employed as a clerk in the GPE CARDINALnd ORG . On DATE the ORG forwarded the name and workplace of the applicant to ORG , stating that the applicant was suspected of having stolen and falsified court documents relating to a decided divorce case .

On DATE ORG referred the case to ORG .

At TIME on DATE the applicant was taken into police custody and detained at ORG . He was accused of the above charges . The applicant gave a statement in which he denied that he had been involved in the incident relating to the court ’s case file . The applicant claims that he was not permitted to contact his family or consult a lawyer . He alleges that he was insulted and beaten for TIME .

CARDINAL other suspects were also detained and statements were taken from them . A statement was also taken from PERSON , a party to the divorce proceedings .

On DATE an investigation record was drawn up for the applicant and the CARDINAL other suspects . At TIME on DATE the applicant was released pursuant to the decision of the public prosecutor . The CARDINAL other suspects were kept in custody .

In TIME of DATE , following his release , the applicant went to ORG . He was subsequently granted CARDINAL days’ sick leave by his employer . The medical report prepared at the hospital referred to the fact that the applicant was suffering from a common skin disease caused by the inflammation of the roots of his facial hair .

On DATE ORG of PERSON decided not to bring charges against the applicant ( takipsizlik kararı ) on the ground of lack of evidence . The decision was served on the applicant on DATE .

NORP The public prosecutor took a statement from the applicant on CARDINAL DATE . In this statement the applicant stated that he had applied to ORG to have proceedings brought against the individual who had reported him to the authorities .

On DATE the public prosecutor decided not to lay charges against the person named by the applicant .

On DATE the applicant filed a complaint under PERSON No . CARDINAL with ORG ( Ağır Ceza Mahkemesi ) against the ORG requesting TRL CARDINAL by way of compensation for his detention between “ CARDINAL and DATE ” . In the petition , the applicant ’s lawyer stated , inter alia , that the applicant , while in detention , had been tortured and ill - treated by being beaten and insulted for TIME and deprived of his right to contact his family and a lawyer . As a result of his injuries , the applicant was required to take CARDINAL days’ sick leave . He did not invoke any specific section of PERSON . no . CARDINAL .

On DATE the CARDINAL - judge PERSON commissioned CARDINAL of its members ( naip hakim ) to investigate the case and draft a report . The judge designated for this purpose verified , inter alia , that ORG of İzmir had dropped the charges against the applicant . He also obtained information about the applicant ’s personal , financial and social status . The judge found that the evidence obtained was sufficient to enable him to draft his report and decided in the exercise of his discretion under LAW . CARDINAL that it was unnecessary to hear the applicant . The public prosecutor was asked for his written observations on the applicant ’s claim . On DATE the public prosecutor , as required by Law no . CARDINAL , submitted his opinion to ORG . The public prosecutor noted that the applicant was taken into custody on DATE , and not on DATE as claimed , and was released on DATE . The public prosecutor recommended that the applicant be given compensation for non - pecuniary damage in an amount to be assessed by the court . This opinion was not served on the applicant .

The judge stated in his report of DATE to ORG , inter alia , that the applicant had been detained for DATE from DATE to DATE and upon his release had obtained a medical report which indicated that he had been assaulted ( “ darp edildiği ” ) . The judge recommended that the applicant be awarded compensation for non - pecuniary damage in respect of his detention , calculated on the basis of his personal , financial and social status .

On DATE ORG found that the applicant was detained for DATE and qualified for compensation . In its judgment , the court noted all the complaints in the petition submitted by the applicant ’s lawyer . With reference to the applicant ’s personal , financial and social status , the court awarded the applicant TRL CARDINAL by way of compensation and TRL CARDINAL in respect of legal fees .

The applicant ’s lawyer and the ORG both appealed against the award . The applicant ’s lawyer contended on appeal that the amount of compensation was insufficient reparation for his wrongful arrest and detention . He did not challenge the dates of detention as determined by the court . On DATE ORG at ORG submitted his opinion on the merits of both parties’ appeals . In his written submissions to ORG stated that neither of the parties had grounds for appeal and advised that both their appeals be rejected . This opinion ( tebliğname ) was not submitted to the applicant .

On DATE the CARDINALth Chamber of ORG ( NORP ) upheld the judgment of DATE .

According to information submitted by the ORG , the applicant never applied to obtain the compensation awarded to him by ORG .

Article CARDINAL of the LAW provides :

" Everyone has the right to liberty and security of person .

No one shall be deprived of his liberty save in the following cases and in accordance with the formalities and conditions prescribed by law :

The arrested or detained person must be brought before a judge within TIME at the latest or , in the case of offences committed by CARDINAL person , within DATE ... These time - limits may be extended during a state of emergency ...

A person deprived of his liberty , for whatever reason , shall have the right to take proceedings before a judicial authority which shall give a speedy ruling on his case and order his immediate release if it finds that the deprivation of liberty was unlawful .

Compensation must be paid by the ORG , as the law shall provide , for damage sustained by persons who have been victims of treatment contrary to the above provisions . "

Under section CARDINAL of LAW , an arrested person must be brought before a judge within TIME or , where the offence has been committed by CARDINAL person , within DATE .

Section CARDINAL of Law No . CARDINAL on the payment of compensation to persons arrested or detained provides :

" Compensation shall be paid by the ORG in respect of all damage sustained by persons :

( CARDINAL ) who have been arrested , or detained under conditions or in circumstances incompatible with the LAW or statute law ;

( CARDINAL ) who have not been immediately informed of the reasons for their arrest or detention ;

( CARDINAL ) who have not been brought before a judicial officer after being arrested or detained within the time - limit laid down by statute for that purpose ;

( CARDINAL ) who have been deprived of their liberty without a court order after the statutory time - limit for being brought before a judicial officer has expired ;

( CARDINAL ) whose close family have not been immediately informed of their arrest or detention ;

( CARDINAL ) who , after being released or detained in accordance with the law , are not subsequently committed for trial ... , or are acquitted or discharged after standing trial ;

or

( CARDINAL ) who have been sentenced to a period of imprisonment shorter than the period spent in detention or ordered to pay a pecuniary penalty only . "

According to section CARDINAL of Law no . CARDINAL , a claimant must apply for compensation to the local assize court within DATE , setting out the facts complained of and indicating the amount claimed .

According to section CARDINAL of the same PERSON , the competent court appoints CARDINAL of its members to examine the application . The judge appointed hears the claimant if necessary , studies the file and requests the public prosecutor to submit his written observations on the claim . The judge then reports back to the court , which decides on the application on the basis of the judge ’s assessment and the written observations of the public prosecutor . It does not hold a hearing . The claimant has DATE in which to lodge an appeal against the decision reached by the assize court .


The applicant , Mr PERSON , is a GPE national , who was born in DATE and is currently serving a prison sentence in the GPE . He is represented before the ORG by Mr PERSON , a lawyer practising in GPE .

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

On DATE , the applicant was arrested and taken into custody on suspicion of having shot and killed earlier that day Mr PERSON , a well - known GPE politician and the first candidate on the list of the FAC party for the imminent parliamentary elections on DATE . The killing of PERSON and the applicant 's arrest attracted massive national and international publicity and , in the evening of DATE , riots broke out in GPE . Many perceived his killing as a direct attack on democracy .

On DATE , the applicant – who refused to give any statement DATE was transferred to ORG Forensische Observatie en Begeleidingsafdeling – “ FOBA ” ) , a specialised unit , housed in the remand centre ( huis van bewaring ) PERSON , for detainees suffering from mental problems . The applicant was placed in solitary confinement in the PERSON , entailing his segregation from other detainees , no contacts with the outside world , with the exception of his lawyers , and no access to newspapers or other media . In addition , the Governor in charge of the remand centre , on DATE , ordered that , as from DATE at TIME until DATE at TIME , the applicant was to be placed under permanent camera surveillance ( permanent cameratoezicht ) , i.e. TIME a day , DATE a week . The reasons given by the Governor for his decision were as follows :

“ The offence of which you are suspected has , more than other offences , caused a shock to society . I therefore consider it of great social importance to ensure that you can spend your pre - trial detention in safety . For this , camera surveillance offers the best guarantees . Moreover , we do not know you and consider it necessary to observe you well , before we can assess to what extent you present a suicide danger . ”

Although the applicant could have filed an appeal against this decision with ORG ( beklagcommissie ) of ORG ( Commissie PERSON ) , he did not avail himself of this possibility .

On DATE , the Governor prolonged the decision to place the applicant under permanent camera surveillance until DATE at TIME The reasons stated were as follows :

“ The offence of which you are suspected has , more than other offences , caused a shock to society . I therefore consider it of great social importance to ensure that you can spend your pre - trial detention in safety . For this , camera surveillance offers the best guarantees . ”

On DATE , the applicant filed an appeal against the decision of CARDINAL DATE with ORG of ORG . In addition , the applicant requested the President of ORG for ORG ( GPE van de Centrale PERSON GPE – “ the ORG ” ) to suspend the decision of CARDINAL DATE .

On DATE , the President of ORG accepted the applicant 's request and suspended the impugned decision as from DATE at TIME The President held that the Governor 's decision was based on a ground that , although in itself understandable , was not contained in LAW no . CARDINAL/CARDINAL/DJI , issued by the Minister of Justice on DATE , on the determination of the rules for stay in and equipment of disciplinary and segregation cells ( PERSON houdende vaststelling van regels voor verblijf in en de inrichting van de straf- en afzonderingscel – “ the June CARDINAL Regulation ” ) and , therefore , was in breach of a legal provision . The President further considered :

“ It can be deduced [ from the Governor 's submissions ] that neither the Governor nor the staff have any concrete indications , on the basis of the applicant 's conduct , of the existence of an alarming mental situation . Neither [ does the Governor mention ] a possible suicide danger [ posed by the applicant ] . A consultation by [ the applicant ] with a doctor has not been presented to the President . The President notes that neither the Governor nor the staff is so medically trained that they must be considered capable of forming a sufficient image of [ the applicant 's ] mental condition , also in the light of the nature and seriousness of the suspicion against [ the applicant ] . It can not be excluded that a medical examination would throw light on [ the applicant 's ] mental condition , necessitating measures on the part of the institution .

As regards the execution of the suspension the following applies : It is in itself habitual to suspend a decision by the Governor with immediate effect . This does not appear to be justified in the present case . In order to enable the institution to adjust the measures currently in force , the decision of the Governor will be suspended as from DATE , DATE at TIME ”

ORG On DATE , after having obtained the advice of a psychiatrist , the Governor ordered that the applicant be placed under permanent camera surveillance as from DATE at TIME until DATE at TIME The Governor considered that the seriousness of the offence of which the applicant was suspected , and the reaction in society to this offence , justified the prevention of any risk of suicide or other harm to the applicant 's physical and mental condition , that it had not been established that such risks did not exist and that camera surveillance , as a preventive measure , was necessary and formed the most adequate tool .

On DATE , the applicant appealed against this decision to ORG of ORG , requesting it to examine his appeal together with that brought on DATE against the decision of CARDINAL DATE . On DATE , the applicant requested the President of ORG to suspend the decision of CARDINAL DATE .

Also on DATE , the Governor informed ORG that the applicant had been transferred to another remand centre that DATE and that , therefore , suspension of his decision would no longer serve any purpose .

On DATE , the President of ORG rejected the applicant 's request of DATE because , as a consequence of the applicant 's transfer to another remand centre , the validity of the impugned decision had ended on DATE . The President considered that , in these circumstances , the applicant no longer had any interest in a positive decision on his request .

In its decision of DATE , after a hearing held on DATE , ORG declared inadmissible for having been lodged out of time the applicant 's complaint against the decision of CARDINAL DATE , but accepted as well - founded the applicant 's appeal against the decision of CARDINAL DATE . It noted that , according to the psychiatrist 's advice to the Governor , the applicant did not present any signs of a mental disorder but that a “ balance suicide ” , not based on an illness but on a conscious , calculated and personal choice , could not be excluded . It further noted that the Governor had based the impugned decision on this succinct advice without any additional examination having taken place from which it could appear that the risk of a “ balance suicide ” was actually present . It lastly noted that , in his decision , the Governor had not given any additional reasons demonstrating that , in the applicant 's case , there was an increased suicide risk rendering camera surveillance necessary . It held that the reasons stated by the Governor for his decision of CARDINAL DATE , even if these were understandable , given the reactions in society to the offence at issue , were insufficient for complying with the criterion under LAW that the physical or mental condition of the detainee must render permanent camera surveillance necessary .

On DATE , the Governor filed an appeal against the decision of DATE with ORG .

On DATE , after a hearing held on DATE , ORG rejected the Governor 's appeal and upheld the decision of DATE . It considered that :

“ The second paragraph of LAW [ of the June CARDINAL Regulation ] provides that an advice of the penitentiary medical officer must be obtained before the Governor decides on camera surveillance . The explanation to this LAW states , on this point , that this must take place as only the medical officer is deemed capable of assessing whether visual control is necessary in the interest of the detainee .

Where the Governor wishes to place a detainee under permanent camera surveillance , it must be established that camera surveillance is necessary because of the physical or mental condition of the detainee . The circumstance adduced in the reasoning given by the Governor , that it has not been established that a suicide risk did not exist , is insufficient for assuming that necessity . The circumstance , mentioned in the advice drawn up by the psychiatrist for the purpose of the impugned decision , that “ balance suicide ” can not be excluded , is general in nature since it does not refer to the specificities of the [ applicant 's ] physical and mental condition .

The foregoing is in itself insufficient for concluding a necessity for camera surveillance . This is not altered by taking into account the seriousness and particularities of the offence of which [ the applicant ] is suspected . ORG declares the appeal unfounded . ”

No further appeal lay against this decision .

By decision of DATE , the Governor of the remand centre to where the applicant had been transferred , and where he was no longer held in solitary confinement but under an individual detention regime , ordered that the applicant be placed under permanent camera surveillance from CARDINAL DATE at TIME until DATE at TIME The reasons stated for this decision were identical to those given for the decision of CARDINAL DATE .

On DATE , the applicant filed an appeal against the decision of CARDINAL DATE with ORG of ORG . On DATE , he requested the President of ORG to suspend the decision of DATE .

Also on DATE , after having heard the applicant and on the basis of the psychiatrist 's report , the Governor decided to prolong the order to place the applicant under permanent camera surveillance until DATE at TIME The reasons for this decision were stated in the following terms :

“ I have noted that you , during the conversation on DATE when discussing the topics of prospects for the future and perception of the period until trial , you showed emotion and got watery eyes .

In the conversation with me you stated “ that it is maybe also the best for you . ” The explanation you gave for making this statement was that you did not refer to yourself but gave it as an example that persons in a particular situation can think that suicide is the best .

I have received a letter from your lawyer in which he expresses concern about your physical and mental well - being . In this respect , he further asks for consideration of the contents of your TIME programme as you have no contact with co - detainees .

The seriousness of the offence of which you are suspected and the reaction in society which this offence has caused , justifies that the realisation of any risk of suicide or other harm to your physical and mental condition must be prevented .

It has not been established that , in your case and noting the emotion shown and statement made by you , as well as the contents of your lawyer 's letter , these risks are not at all present .

Camera surveillance for prevention of the realisation of the above - cited risks is necessary and is also the most adequate tool . ”

On DATE , the applicant filed an appeal against this decision with ORG of ORG and requested it to examine this appeal together with his appeal of DATE against the decision of CARDINAL DATE .

In its decision of DATE , after a hearing held on DATE , ORG rejected the applicant 's appeals of CARDINAL and DATE , holding :

“ Pursuant to LAW ( PERSON ) , taken together with LAW [ this ] LAW , the Governor has the power to order measures ( ordemaatregelen ) , provided these are necessary in the interests of the order or security in the institution or the undisturbed execution of the deprivation of liberty .

Amongst such measures must also be understood that of camera surveillance . Camera surveillance is a very drastic measure , that seriously restricts the freedom of movement of the detainee within the institution and at no moment allows him the possibility of “ being on his own ” . This measure is thus only to be applied as an ultimate means of guarding a detainee .

ORG must now determine whether the decision of the Governor , in balancing all relevant interests and circumstances , must be considered as unreasonable or unfair .

The ORG puts first the seriousness of the fact of which [ the applicant ] is suspected and the reaction that fact has caused in society , which lead to the conclusion that a suicide [ of the applicant ] will ( also ) affect order and security in the penitentiary institution . This element justifies measures to prevent [ the applicant 's ] suicide . ORG further takes into account that suicide is difficult to predict .

As to the question how far such measures may go , it is true that the applicant has not shown signs indicating a mental disorder [ usually ] ... associated with an increased suicide risk , but [ the applicant 's ] detention regime has changed on DATE in that he can take notice via the media , for the first time since his arrest , of the reactions in society to the act of which he is suspected and he may receive visits .

As it can not be excluded that the applicant , following this change ... is exposed to great pressure , the possibility of a ' balance - suicide ' must be taken into account and the Governor 's decision to apply permanent camera surveillance , in balancing all the interests and circumstances involved , can not be regarded as unreasonable or unfair . The appeal will therefore be declared unfounded in both cases .

The above does not signify that , in unchanged circumstances , camera surveillance will automatically remain justified . When the new situation in which [ the applicant ] finds himself is stabilised , the conclusion must be that , in unchanged circumstances , camera surveillance is no longer called for , and thus must be considered as unreasonable . ”

On DATE , the applicant filed an appeal against this decision with ORG .

In its decision of DATE , following a hearing held on DATE , ORG accepted the applicant 's appeal , quashed the decision of DATE and declared well - founded the applicant 's appeals of CARDINAL and DATE . It held as follows :

“ [ The applicant ] is detained ... under an individual detention regime . According to the explanatory notice to LAW , on the selection , placement and transfer of detainees ( PERSON selectie , plaatsing en overplaatsing van gedetineerden ) of DATE , no . CARDINAL , the individual detention regime is to be considered as a form of detention which lies between segregation and restricted community . As [ the applicant ] is detained under an individual detention regime , the [ DATE Regulation ] does not apply .

In the absence of a specific statutory basis , the question arises whether the general rules governing measures , and in particular LAW of LAW in conjunction with Articles DATE and CARDINAL of LAW , offer a sufficient statutory basis for camera surveillance against the wishes of the detainee .

LAW of LAW provides as follows :

“ The Governor is , in so far as this is necessary in the interests of maintaining order or security in the institution or the undisturbed execution of the deprivation of liberty , competent to give orders to detainees . The detainees are obliged to comply with these orders . ”

In Part CARDINAL of the Explanatory Memorandum to LAW in part b ) on ordering measures , the following is stated :

“ The package of measures at the disposal of the Governor is greater . In the interests of order it can indeed be necessary to give indications to detainees that are less far - reaching in nature than those cited above and therefore do not have to be equipped with extra legal guarantees . The above - cited LAW offers a sufficient basis for taking such measures . ”

The general rules governing the ordering of measures offer an insufficient basis for applying camera surveillance . In this context , it is important to note that camera surveillance is a very far - reaching measure of which it can not be said that this follows more or less from the ( nature of the ) deprivation of liberty . In this light it is understandable that , to the extent that camera surveillance in a cell is allowed , an explicit legal basis is foreseen [ in DATE Regulation ] . It goes too far to extend the cases in which camera surveillance is allowed beyond that explicit legal basis . In view of the above , ORG is of the opinion that , when the Governor took the impugned decisions , the legal basis for imposing and prolonging camera surveillance was lacking . It will therefore declare the appeal founded . It will in a separate decision , after having heard the Governor , determine whether the applicant should be awarded any compensation . ”

No further appeal lay against this decision .

By decision of DATE , the Governor prolonged the camera surveillance order until DATE at TIME , stating that the considerations and the situation that were decisive for the decision taken on DATE had remained unchanged without any prospects of change in the near future .

On DATE the applicant filed an appeal with ORG of ORG against the decision of DATE and , on DATE , requested the President of ORG to suspend the decision of DATE .

On DATE the President of ORG rejected the applicant 's request to suspend the decision of DATE , considering that the applicant 's situation had not materially changed since DATE .

In a subsequent decision taken on DATE , the Governor prolonged the camera surveillance order until DATE at TIME , stating that the considerations and the situation that were decisive in the decision taken on DATE had remained unchanged . The Governor further stated that he had received information from ORG ( PERSON GPE ” ) from which it could be concluded that the applicant might undertake a suicide or escape attempt .

On DATE the President of ORG accepted the applicant 's request and ordered that the decision of DATE be suspended as from DATE at TIME The President held that the Governor 's decision did not comply with the legal rules , as the requirement of a regular assessment of the necessity of camera surveillance by a psychologist of the penitentiary institution had not been respected . No such assessment appeared to have been made since DATE . In the absence of such an assessment , the President considered that he could no longer assume that the applicant 's situation had not materially changed . In order to allow the Governor to consider further measures , the President decided that the suspension of the decision of DATE was only to take effect on DATE .

In its decision of DATE , following a hearing held on DATE , ORG rejected the applicant 's appeal against the decision of DATE , and accepted his appeal against the decision of DATE , holding as follows :

“ At the time of the decision of DATE to prolong camera surveillance , the [ applicant ] has been detained for DATE under the new [ detention ] regime . This period is too short to already speak about a stabilised situation , referred to in the decision of DATE and , on the same grounds as [ that ] decision , the appeal [ against the decision on DATE ] is declared unfounded . On DATE , at the time of the second impugned decision , [ the applicant ] had extensively taken notice of the reactions in society to the deed of which he is suspected , and had received several visits of his family , whom he perceives as a support for him . Since no further facts or circumstances have appeared indicating the contrary , it must be assumed that his situation on DATE had stabilised , within the meaning of the decision of DATE .

To this extent and unlike what is stated in the Governor 's decision of DATE , the situation has changed since DATE . The other circumstances on DATE have , in the opinion of ORG , remained the same in comparison with those at the time of the decision of DATE . There was no other psychiatric report available than that which had already been taken into account in the decision of DATE . As to the GRIP information , ORG ... is of the opinion that this information is too general and vague to enable the conclusion that the [ applicant 's ] physical or mental condition is such that it renders camera surveillance necessary . The information is also not of such a nature that it is possible to speak about changed circumstances as is meant in the decision of DATE . Therefore it must now be concluded , on the one hand , that the new situation has ... stabilised and that , on the other , the other circumstances have remained the same . Taking account of all pertinent interests and circumstances , as indicated in the decision of DATE , the conclusion must therefore be that camera surveillance is no longer necessary , and must be considered unreasonable . The appeal [ against the decision of DATE ] will therefore be declared wellfounded . ”

Both the applicant and the Governor filed an appeal against this decision with ORG : the applicant against the rejection of his appeal relating to the decision of DATE , and the Governor against the decision to accept the applicant 's appeal relating to his decision of CARDINAL DATE . The Governor withdrew his appeal on an unspecified date .

On DATE , after a hearing held on DATE , ORG accepted the applicant 's appeal against the decision of DATE on the same grounds as set out in its decision of DATE . No further appeal lay against this decision .

On DATE , the Governor ordered that the applicant be placed under permanent camera surveillance from DATE at TIME until DATE at TIME The reasons stated for this decision were as follows :

“ On DATE an amendment has been introduced in the Regulation on requirements for accommodation in penitentiary institutions ( PERSON eisen verblijfsruimte penitentiaire inrichtingen – “ the January CARDINAL Regulation ” ) in relation to camera observation . You are suspected of an offence that has caused great social unrest . Social unrest will arise again should you escape or if your health would be harmed . Although I realise that camera observation is a drastic measure , I do wish to avoid every risk of causing social unrest and for this reason do not give you the benefit of the doubt . ”

On DATE , the applicant filed an appeal against this decision with ORG of ORG . On DATE , he requested the President of ORG to suspend the decision of DATE .

On DATE the President of ORG rejected the applicant 's request . Having noted the amended provisions of DATE , the President considered that the decision was not in violation of any legal rule applicable to the remand centre , and it could not be regarded as so unreasonable or unfair that it gave rise to an urgent interest to suspend its further execution .

On DATE the applicant started a hunger strike in protest against being placed under permanent camera surveillance .

In its decision of DATE , following a hearing held on DATE , ORG rejected the applicant 's appeal of DATE . Its decision , in so far as relevant , reads as follows :

“ ORG does not consider the [ DATE Regulation as amended on DATE ] to be in violation of LAW ] . Contrary to the argument raised by [ the applicant ] , observation by means of a camera does not fall under LAW since , according to the prevailing view , such observation may be called for under [ certain ] circumstances . Also contrary to [ the applicant 's ] argument ... , there is no breach of LAW ] . It concerns here a measure prescribed by law that , inter alia , has been prompted to prevent great social unrest . Such an aim can be regarded as necessary in a democratic society .

On the above grounds , there is no breach of a rule that applies in the institution .

Balancing of interests

It must first be said that the balancing of interests on the basis of the [ DATE Regulation as amended on DATE ] is different to ... that carried out in the previous decisions of this ORG concerning the present subject matter .

In the decision of DATE , the [ Governor ] has struck a balance between , on the one hand , the fact that camera surveillance interferes with the private sphere of [ the applicant ] and , on the other , the social unrest that can arise if [ the applicant ] would escape or his health harmed . On the basis of this balance , he decided to apply camera surveillance .

Account is taken of the fact that [ the applicant ] is suspected of a very serious fact , which has caused serious social unrest , which unrest still continues . Given , furthermore , that every development concerning [ the applicant ] attracts new social attention , whereas , on the other hand , ( an attempt to commit ) suicide by [ the applicant ] can not be wholly excluded , it can not be said that this decision is unreasonable or unfair . In this , it must also be taken into account that , at present , an infrared camera has been installed in [ the applicant 's ] cell , so that [ the applicant ] is not disturbed during TIME more seriously than is usual for detainees in respect of whom it is expected that a long prison sentence will be demanded . The appeal will therefore be declared unfounded . ”

On DATE , invoking inter alia Articles CARDINAL and CARDINAL of the LAW , the applicant filed an appeal against this decision with ORG .

On DATE , following a hearing held on DATE , ORG rejected the applicant 's appeal and upheld the decision taken by ORG . ORG decision , in so far as relevant , reads as follows :

“ Applying camera surveillance means a considerable interference with the privacy of [ the applicant ] . For such an interference ... in the light of LAW , a legal basis is required . ... The manner in which the possibility for the interference with privacy , by means of permanent camera observation , has been given legal shape , is not in breach of any legal rule , including LAW . Contrary to what has been argued by the applicant , it is not required that a regulation on camera observation must be set out in a formal LAW [ of ORG ] . The fifth paragraph of LAW of [ LAW ] offers a sufficient basis for camera observation , as set out in the [ amended DATE ] Regulation . ...

The lawfulness of the concrete application of the [ amended DATE ] Regulation has been challenged on various grounds . In the first place , the requirements of prior consultation and accompaniment during the camera observation have allegedly not been complied with .

Contrary to what has been argued [ by the applicant ] , LAW ( d ) of the [ amended DATE ] Regulation does not require the prior opinion of a behavioural expert or the institution 's medical officer , and it also does not require that a behavioural expert or doctor informs himself once DATE of the detainee 's condition . This does not affect the desirability of medical supervision .

It has further been argued that camera observation has been ordered without having balanced the interests and , in addition , that there is no necessity to apply camera observation as it is ineffective .

It has been sufficiently established that , in the application of the measure , a balancing of interests has taken place . This is expressed in the reasoning of the decision . Also when taking into account that camera observation signifies a considerable interference with [ the applicant 's ] privacy , decisive importance could be given in the present case to very great social unrest that would entail an escape or harm to health .

In reasonableness it can not be said that such an observation is ineffective , even when taking into account that camera observation can not prevent the unavoidable . Camera observation is in so far in any event effective and thereby also necessary in that it shapes the obligation of the penitentiary authorities to strive for the prevention of great social unrest on account of escape or harm to [ the applicant 's ] health .

It has further been argued that the application of camera surveillance would be in violation of LAW [ of LAW ] . In this connection [ the applicant ] has argued that it constitutes inhuman and/or degrading treatment as the situation in which he finds himself entails ' mental suffering ' . [ The applicant ] has relied in particular on a letter by [ his private ] general practitioner PERSON DATE in which [ the applicant 's ] physical and mental health state is discussed .

It is true that the application of camera observations does signify a considerable interference with [ the applicant 's ] privacy but , in the opinion of ORG , it does not give rise to inhuman or degrading treatment in the sense of LAW [ of the Convention ] . In this it must be taken into account that , although it is true that [ he ] is being permanently observed , the applicant is fully provided , within the limits of detention , with the other regular facilities , including for instance the possibility to receive visits .

No further appeal lay against this decision .

On DATE , after mediation by the President of ORG of the remand centre , the applicant ended his hunger strike and , shortly afterwards and in accordance with agreements made , the applicant 's surveillance by camera was reduced to TIME .

On DATE , after having availed himself of his right to remain silent since his arrest on DATE , the applicant gave a first statement to the investigating judge ( rechter - commissaris ) in respect of the facts of which he was suspected . He gave further statements to the investigating judge on CARDINAL and DATE .

On DATE the applicant was ordered to appear before ORG ( arrondissementsrechtbank ) in order to stand trial on charges of , inter alia , murder . The first hearing before ORG was held on DATE .

In its judgment of DATE , ORG convicted the applicant of , inter alia , murder and sentenced him to DATE imprisonment . Both the applicant and the public prosecutor filed an appeal with ORG ( gerechtshof ) .

By judgment of DATE , ORG quashed the judgment of DATE , convicted the applicant of , inter alia , murder and sentenced him to DATE imprisonment . In the determination of its sentence , ORG considered that the circumstances of the applicant 's detention , in particular his having been subjected to camera surveillance for DATE and the modalities of his individual detention regime , were to be regarded as extremely burdensome – although these measures were necessary and justified DATE and were to be taken into account as a mitigating factor in the determination of sentence . It noted certain mitigating factors : the applicant had no criminal record ; his conditions of detention were extremely burdensome and certain aspects of the publicity which the applicant and his trial had attracted were unacceptable and had harmed the applicant . However , these factors weighed little against the seriousness of his conviction for having murdered a politician shortly before parliamentary elections and without him having shown insight into the reprehensible nature of this offence .

The applicant did not avail himself of the possibility to file an appeal in cassation against this decision with ORG ( PERSON ) .

LAW ( PERSON ) provides as follows :

“ A person who has been lawfully deprived of his liberty may be restricted in the exercise of fundamental rights in so far as the exercise of such rights is not compatible with the deprivation of liberty . ”

According to LAW ( PERSON ) , the Minister of ORG is to determine the rules on the provision of accommodation for detainees . On this basis , the Minister of ORG issued the Regulation on the requirements for accommodation in penitentiary institutions ( PERSON eisen verblijfsruimte penitentiaire inrichtingen – “ the January CARDINAL Regulation ” ) which entered into force on DATE .

Pursuant to LAW , the Minister of ORG must also determine further rules on the stay in and equipment of disciplinary and segregation cells , which rules must deal in particular with the rights of detainees during their stay in a segregation cell . On this basis , the Minister of ORG issued the relevant rules on DATE ( Regulation no . CARDINAL - Regeling houdende vaststelling van regels voor verblijf in en de inrichting van de straf- en afzonderingscel DATE “ the June CARDINAL Regulation ” ) .

LAW , in so far as relevant , reads as follows :

“ CARDINAL . The Governor can , if the physical or mental condition of the detainee renders this necessary , order that the detainee will be observed day and night by means of a camera .

Before taking a decision to this effect , the Governor will seek the advice of the penitentiary medical officer , unless this advice can not be awaited . In that case , the Governor will obtain that advice as soon as possible after his decision . ... ”

On DATE the Minister of ORG issued an amendment , with immediate effect , to the January CARDINAL Regulation , introducing the possibility to place detainees , who are not being held under a disciplinary or segregation regime but under an individual detention regime , under permanent camera surveillance . The new provisions , in so far as relevant , read as follows :

“ Article CARDINAL

Accommodation may be equipped with an observation camera .

The camera will be fitted in such a manner that observation of the entire room is possible .

Article CARDINAL

The Governor can decide that the detainee , who is being held under an individual detention regime within the meaning of LAW DATE LAW or who is being held in an extra security institution within the meaning of LAW ( e ) of the [ DATE LAW , will be observed day and night by means of a camera :

a. where this is necessary in the interests of maintaining order or security in the institution ;

b. where this is necessary for the undisturbed execution of deprivation of liberty ;

c. where this is necessary in connection with the mental or physical condition of the detainee ;

d. if escape or harm to the detainee 's health could give rise to great social unrest , or where this could cause serious damage to the relations between the GPE and other GPE or with international organisations .

Before deciding to apply camera observation under the first paragraph ( c ) , advice on this matter must be obtained from a behavioural expert or the institution 's medical officer , unless this advice can not be awaited . In that situation the Governor shall obtain the advice as soon as possible after his decision .

The camera observation , referred to in the first paragraph , shall last for DATE at most . The Governor may prolong camera observation by periods of DATE each time , if he has concluded that the necessity thereof continues to exist .

Articles CARDINAL [ obligation to hear the detainee ] and CARDINAL [ decision must be in writing and contain reasons ] of the [ DATE Prisons ] Act apply by analogy . The institution 's ORG and the institution 's medical officer will be informed without delay of a decision to apply camera observation or a prolongation thereof .

Article CARDINALc

The institution 's medical officer or the behavioural expert attached to the institution shall inform himself , at least once DATE , of the condition of the detainee who is being observed day and TIME by means of a camera . ”

The explanatory notice to the new Article DATE , b and c states as follows :

“ The general part of the explanatory notice to the original ORG states that , for the detainee , the cell is the place where during his detention his private life takes place and where he should thus be provided with a minimum of comfort and , in so far as possible within the context of detention , guarantees for his privacy . The placement of an observation camera , rendering possible observation of the entire cell for TIME a day , forms a serious interference with the privacy of the detainee . Nevertheless , situations may be envisaged in which such interference is justified .

In the [ DATE Regulation ] , camera observation during a stay in a disciplinary or segregation cell is rendered possible if the physical or mental condition of the detainee renders this necessary . The necessity in view of the physical or mental condition of the detainee then applies as an extra requirement , in addition to the grounds that can justify a stay in the disciplinary or segregation cell . These grounds are set out in LAW taken together with LAW of the [ DATE LAW .

It has appeared in practice that camera observation may also be necessary when the detainee does not stay in a disciplinary or segregation cell . The [ present ] Regulation limits those situations to those in which the detainee is being held under an individual detention regime or in an extra security institution . In these cases camera observation may be applied where this is necessary in the interests of maintaining order and security in the institution or the undisturbed execution of the deprivation of liberty . Furthermore , the physical or mental condition of the detainee may give cause for observing him by means of a camera .

Moreover , circumstances that do no directly flow from the detainee or his behaviour or physical condition may give cause for camera observation , in particular situations in which the offence of which the detainee is suspected or has been convicted has caused great public unrest , or has caused a stir in the relations of the GPE with other GPE and with international organisations . To be envisaged are serious violent or sexual crimes , as well as offences against the security of the ORG , royal dignity , heads of friendly GPE and other internationally protected persons , offences concerning the exercise of ORG obligations and powers , and terrorist offences . Political crimes may be concerned , but the crimes do not necessarily have to have been committed with a political aim . The decisive element is that the social unrest or stir in the relations of the GPE with other GPE and with international organisations caused [ by the offence ] transposes the maintenance of public order or the security in the institutions and the undisturbed execution of the deprivation of liberty to [ another level ] . Something happening to the detainee during detention , or his escape , could have unforeseen and serious consequences for public order , the democratic legal order or for relations with other GPE or international organisations . The legal position of a detainee , in particular his right to privacy already subjected to restrictions by the detention , should in this light be balanced against the interests of preventing escape or possible harm to his health in whatever form .

This balancing of interests should be set off against the knowledge that research has shown that there are different circumstances open to objectification that can be considered as risk moments for suicide . For example , apart from segregation , the first period of detention is indicated as a risk moment , as well as not being allowed to have contacts with codetainees on grounds of restrictions imposed by the investigating judge . It is also of importance that by far not all cases show prior signals that a detainee wants to commit suicide . Literature indicates that suspects or persons convicted of violent and sexual crimes are overrepresented in the suicide statistics , as well as persons having been found guilty or who are suspected of murder or manslaughter and who are facing life imprisonment . The social unrest or stir in the relations of the GPE with other GPE and international organisations caused [ by the offence ] can entail a certain pressure on the detainee that can and may play a role in balancing the interests involved . The threat of possible harm [ to the detainee ] may also come from outside . Then information from ORG can play an important role in the considerations for camera observation .

The decision [ to place a detainee under camera observation ] is valid for DATE , but can be prolonged by the Governor for periods of the same duration each time . It is conceivable that the camera observation will place a great psychological pressure on the detainee . For this reason , the institution 's medical officer or behavioural expert must see the detainee at least once DATE . ”