Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Article 5-1-e - Persons of unsound mind);Non-pecuniary damage - award

András Sajó;Françoise Tulkens;Helen Keller;Isabelle Berro-Lefèvre;Paulo Pinto De Albuquerque

The applicant was born in DATE and lives in LANGUAGE .

At the time of introducing the application , the applicant , a university dropout and unemployed , lived on financial support from his mother and grandmother .

On DATE the applicant ’s mother consulted her psychiatrist , Dr M. , complaining of suffering from distress due to the “ strange behaviour ” of her son . According to the mother ’s medical file , she stated that the applicant “ kept wandering in town ” , “ did not have any friends ” and “ did not look after himself ” . In response , Dr M. informed her of the possibilities either to commit the applicant to a psychiatric hospital for emergency treatment or to initiate a procedure for obtaining his mandatory institutional treatment , if necessary .

On DATE the mother informed PERSON that the reason for her having previously moved out of their common flat was the applicant ’s “ strange behaviour ” and that she was afraid of returning . On DATE Dr M. noted in the mother ’s medical file that she was discussing with her the problems concerning the applicant , whom his mother perceived as psychotic .

During their subsequent consultations , the mother repeatedly mentioned to PERSON that the reason for her anguish was that the applicant had not taken up a proper job and still lived on financial support from his family . In her medical file PERSON reiterated the view that the mother ’s problem originated in her son ’s conduct perceived as psychotic by the mother .

On DATE the applicant was called on to meet Dr M. They discussed the applicant ’s dropping out of university and his inability to meet his mother ’s expectations . PERSON diagnosis was “ paranoid schizophrenia under observation ” .

Subsequently Dr PERSON gave the applicant an appointment for a psychological examination , which took place on DATE . On DATE , PERSON examined the applicant and found that he was characterised “ by schizoid isolation , sensitive attitude and paranoid behaviour ” .

Further sessions involving the applicant , PERSON and PERSON took place on DATE and DATE and CARDINAL and DATE . At these sessions he expressed his interest in politics and voiced hopes of being elected Mayor of GPE . PERSON was trying to find out the reasons for his social isolation and convince him about the need to reconcile his projects with reality . The applicant missed CARDINAL sessions scheduled for CARDINAL and DATE .

Having noted that the applicant ’s ideas had remained megalomaniac , on DATE PERSON confronted the applicant with her view that his social isolation was due to a psychiatric disorder .

On DATE the applicant renounced further counselling by PERSON About the same time , he also stopped seeing PERSON

On DATE and DATE the mother complained to PERSON that she , in despair because of the applicant ’s condition , was unable to pay her utility bills , exorbitant due to the applicant ’s habit of using too much water for “ ritual bathing ” . PERSON explained to her that the applicant was expected to seek treatment voluntarily .

Since the applicant did not do so , on CARDINAL DATE PERSON requested the ORG to order his mandatory institutional treatment . This application consisted of a pre - printed form stating that there was a possibility that the applicant ’s conduct would become dangerous because of a mental disorder . PERSON completed the form by adding that the applicant ’s mother asked her for assistance since she had the suspicion that her son was mentally ill , that the applicant had contacted PERSON upon notice , that he had not worked for DATE , was supported by his mother , lived an isolated life , and did not get in touch with anyone , and finally that he was shorttempered towards his mother , who had moved away from the flat as the patient ’s behaviour was threatening .

On DATE ORG held a hearing . For the purposes of the ensuing proceedings , a guardian ad litem was appointed for the applicant . ORG heard PERSON In her testimony , she repeated in essence the elements contained in the application for mandatory treatment . She stated that she had suspected that the applicant might have a psychiatric illness when , on DATE , the mother had told her that the applicant had refused to use a micro - wave oven for fear of radiation , and that she had concluded that the applicant was psychotic on DATE when he had mentioned his hope of being elected Mayor of GPE .

Dr M. related that , in addition to the applicant ’s mother , his grandmother and her partner , living next door to the applicant , were also concerned about his odd conduct . She stated that she had the suspicion that the applicant suffered from paranoid schizophrenia . She also mentioned that the applicant had on several occasions visited a psychologist , PERSON , who had observed stress and paranoid symptoms which , however , did not amount to a pathological or psychotic mental state , although the applicant had been capable of disguising his symptoms .

Dr M. specified that she had instituted proceedings for the applicant ’s mandatory treatment after he had refused to be counselled by her .

ORG then heard the applicant . It noted that his replies were disoriented and erratic . He was asked questions about his lifestyle and hobbies , his relationship with his grandmother , his willingness to take up a job as well as any illnesses he had . He said he was considering the necessity of a job and of seeking advice from social workers or medical help from health professionals , excluding Dr M.

During the hearing the court ordered a forensic psychiatrist , PERSON , to prepare a medical opinion about the applicant ’s condition . This psychiatric evaluation was done during the break in the court hearing , in TIME . Neither the guardian ad litem nor the applicant had the opportunity to learn about the expert opinion prior to the resumed hearing . Dr H. did not produce any written opinion at this stage ; she presented her testimony to the court verbally following the break . Its written version was faxed to the court on DATE .

PERSON considered that the applicant suffered from delusional schizophrenia , characterised by grandiose delusions , bizarre elements of lifestyle and partial insight into his condition . She specified that she considered the applicant ’s treatment necessary since otherwise his health would decline , whereas therapy might improve his condition . She was of the view that the applicant could not take care of himself , by which he represented a significant danger to himself . She was not convinced that the applicant would voluntarily seek outpatient care but suggested that a decision on compulsory treatment be postponed for DATE , in order to observe the applicant ’s conduct . The judge pointed out that no such option was allowed under the relevant law .

On DATE ORG held another hearing , at the beginning of which PERSON report was handed over to the applicant and his guardian ad litem . PERSON was summoned but failed to appear . The guardian argued in essence that the applicant ’s behaviour was not dangerous and that he posed no significant threat either to himself or others . He noted that neither PERSON nor PERSON testimony contained elements pointing to the applicant ’s representing any danger .

On DATE ORG ordered the applicant ’s mandatory institutional treatment . Relying on the medical opinions , it accepted that he suffered from schizophrenia with grandiose delusions and was satisfied that he posed a danger to his own health by failing voluntarily to subject himself to psychiatric treatment and by not looking after himself . The court affirmed that “ appropriate medical treatment would improve [ the applicant ’s ] condition ” and that , if untreated , his health would decline . It observed the applicant ’s statement about his willingness to seek medical help voluntarily but was not convinced that he would actually do so .

The court ’s decision was based on sections DATE ) and CARDINAL ) of the Act no . ORG of DATE on ORG ( “ the LAW ” ) and on ORG leading case ( EBHCARDINAL.CARDINAL ) ( see below paragraphs CARDINAL - CARDINAL ) .

On DATE PERSON submitted to the court her opinion in hard copy . On DATE the applicant contacted the ORG seeking advice on possible remedies against the court order . He was advised to appeal against the decision . During the second - instance proceedings , the applicant continued to be represented by the guardian ad litem appointed for him by ORG , whereas ORG provided him with additional legal advice .

On DATE the guardian ad litem appealed to ORG . He argued that the conditions for mandatory treatment as required by LAW were not fulfilled , since the evidence provided by the CARDINAL psychiatrists involved did not prove the applicant ’s significant dangerous character but consisted of no more than vague predictions of an eventual deterioration in the applicant ’s condition . The decision was not in conformity with LAW , since ORG had established the applicant ’s dangerous character relying on his lifestyle rather than a mental illness and its symptoms ; in fact , the forensic expert had merely suspected the presence of a mental disorder and her opinion did not contain a proper diagnosis or substantiate that the degree of the applicant ’s mental illness warranted mandatory treatment .

On DATE ORG dismissed the applicant ’s appeal and upheld the first - instance decision , endorsing in essence its reasoning . This decision was served on the applicant on DATE ; the time - limit to file a petition for review by ORG accordingly expired on DATE .

On DATE the applicant ’s treatment commenced at ORG . On admission , he was held in the closed ward of the psychiatric department . DATE he was transferred to the regular ward of the department .

On DATE the geographically competent ORG conducted a review of the applicant ’s hospitalisation . Relying on the opinion of forensic expert PERSON according to whom the applicant , whose condition had improved , suffered from schizophrenia hallmarked by residual symptoms of a psychotic state , but represented no direct danger and was willing to accept voluntary treatment DATE it held that the conditions for mandatory treatment were no longer met in the applicant ’s case and ordered his release .

On DATE the ORG attempted to obtain a copy of the petition for review from the court for their records and found out that it had never been lodged by the applicant ’s guardian ad litem , despite his exclusive entitlement and his promise to do so .

The relevant provisions of LAW read as follows :

“ ... b ) Dangerous conduct is constituted by a condition in which a patient , due to his disturbed state of mind , may represent significant danger to his or others’ life and limb or health , but , given the nature of the illness , ‘ urgent hospitalisation’ [ within the meaning of section CARDINAL ] is not warranted . ”

“ ( CARDINAL ) The treatment may be considered voluntary if , prior to admission to the psychiatric institution , the [ mentally ] competent patient has consented to it in writing .

( CARDINAL ) A partly or fully incompetent patient may be subjected to treatment in a psychiatric institution at the request of the person referred to in sections CARDINAL ) and PERSON ) . ”

“ ( CARDINAL ) In cases under sections CARDINAL(CARDINAL ) and CARDINAL(CARDINAL ) , the court shall regularly review the necessity of hospitalisation . Such review shall take place DATE in psychiatric hospitals and DATE in psychiatric rehabilitation institutions . ”

“ ( CARDINAL ) The doctor in charge shall directly make arrangements to commit a patient to an appropriate psychiatric institution , if the patient ’s conduct is imminently dangerous because of his psychiatric or addictive disease and can only be controlled by urgent treatment in a psychiatric institution . ...

( CARDINAL ) The head of the psychiatric institution shall , within TIME of the patient ’s admission , notify the court thereof and shall thereby initiate steps to establish the necessity of the patient ’s admission and the order of compulsory psychiatric treatment . ...

( CARDINAL ) The court shall order the compulsory treatment of a patient subjected to urgent hospitalisation if the patient ’s conduct is dangerous and his treatment in an institution necessary .

( CARDINAL ) Before deciding , the court shall hear the patient and obtain the opinion of an independent expert psychiatrist . ...

( CARDINAL) The court shall review the necessity of the treatment DATE .

( CARDINAL ) The patient must be released from the psychiatric institution if his treatment in an institution is no longer necessary . ”

“ ( CARDINAL ) The court shall order the compulsory institutional treatment of a patient whose conduct is dangerous because of his psychiatric or addictive disease but whose urgent treatment is not warranted . ...

( CARDINAL ) Proceedings for ordering compulsory institutional treatment shall be initiated by the specialist of the psychiatric health care institution which established the necessity of this treatment ... by notifying the court ; s / he shall make a proposal as to the psychiatric institution which should administer the treatment .

( CARDINAL ) The court shall decide whether to order compulsory institutional treatment within DATE following receipt of the notification .

( CARDINAL ) Before giving its decision , the court shall hear the patient and an independent ... forensic expert psychiatrist ... as well as the psychiatrist who has initiated the proceedings . ...

( CARDINAL ) The court shall review the necessity of compulsory institutional treatment at the intervals specified in section CARDINAL . ...

( CARDINAL) A patient subjected to compulsory institutional treatment must be released once his treatment is no longer warranted . ... ”

Supreme Court leading case no . EBHCARDINAL.CARDINAL contains the following passages :

“ The court ... ordered [ PERSON ] mandatory inpatient psychiatric treatment and committed her to ORG of ORG J. Hospital . The court was of the opinion that [ PERSON ] was suffering from a psychiatric disease imperatively requiring inpatient treatment , this being the only way to improve her health status . The patient refuses medical help or medicines , thereby endangering her own health . Against the final order a petition for review was filed by [ PERSON ] . ... She [ argued that she had ] refused medical help only because her trust in doctors had been shattered . Her letters written , sometimes in injurious tone , to various authorities could be evaluated as the outrages of a person having grown tired of seeking the truth but could not represent imminent endangering behaviour or a ground for committing her to imminent inpatient psychiatric treatment . There had been no elements whatsoever indicating that the life or health of others had been in imminent danger . She endangered solely her own health ; and the authorities’ measure restricting personal liberty could not override her right to self - determination enjoyed as a person of full capacity .... On this question of law , an issue of principle , ORG has to date not taken a published decision of principle and in the interest of developing the jurisprudence it is necessary to carry out a review of the final order . ...

The Health Act contains sui generis regulation in respect of psychiatric patients . Because of the nature of the disease , the law contains a system of special and interlinked provisions . These provisions allow , among other measures , for deprivation of personal liberty subject to sufficient statutory guarantees . Under LAW , psychiatric patients may be subjected to inpatient treatment in CARDINAL cases : if they consent thereto , if they are in a state endangering other persons and therefore in need of emergency inpatient treatment , and if mandatory inpatient treatment is ordered in a court decision ...

Under LAW , emergency treatment ( section CARDINAL ) is linked to imminent endangering behaviour whereas mandatory inpatient treatment ( section CARDINAL ) is linked to endangering behaviour . Circumstances giving rise to imminent endangering behaviour or endangering behaviour are differentiated on the basis of acute disturbance or disturbance of the patient ’s psychic status , respectively . If , in consequence of an acute disturbance of the patient ’s psychic status , the patient imminently and seriously endangers his or others’ life or limb ( imminent endangering behaviour ) or , in consequence of a disturbance of the patient ’s psychic status , the patient may significantly endanger his or others’ life or limb , but the nature of the disease does not justify emergency treatment , the court may order mandatory inpatient treatment ( Health Act , section CARDINAL ( b ) ( c ) ) . LAW ... contains sufficient legal safeguards in respect of all the CARDINAL options of admission into institutional care ( including voluntary admission ) and requires court proceedings and a judicial decision as to whether the treatment is justified ... ; mandatory institutional treatment may be ordered [ only ] by a court ( LAW , section CARDINAL(CARDINAL ) ) ...

Thus , as to the applicability of sections CARDINAL and CARDINAL , a distinction is to be made not on the basis of the degree , let alone the severity of the disease , but on the basis of the urgent nature of the treatment required ...

The patient ’s right to self - determination and her personal liberty was not violated , given that a treatment appropriate for her health status – to be carried out in an institution – had to be ordered , since the treatment previously voluntarily received by the patient could not be continued because of the patient ...

According to the expert opinion and the opinion of the ORG ’s medical practitioner , the endangering behaviour required for such a decision indeed existed in the patient ’s case , since due to her lack of capacity to understand and appreciate her illness , she failed to appear for treatment for DATE . The deterioration of her health status as a result of the absence of treatment was ... medically foreseeable ...

This constitutes health - endangering behaviour on the part of the patient , and the right to self - determination of a person otherwise enjoying full capacity can not be violated when the proceedings are being conducted before a court and a judicial decision is taken on the basis of provisions containing legal guarantees ... ( ORG no . Pfv . III.CARDINAL.CARDINAL/CARDINAL . ) ”

The Government submitted the following elements concerning the law on the subject matter of the application in various NORP jurisdictions .

According to the findings of ORG financed by ORG in DATE on the “ Compulsory Admission and Involuntary Treatment of Mentally Ill Patients – Legislation and Practice in GPE Member GPE ” , the legal criteria qualifying a person for involuntary placement in a psychiatric facility differ widely across the Member GPE of ORG . The research focused on CARDINAL GPE Member GPE but its findings can be generalised as regards all CARDINAL Member States of ORG , only the number of GPE belonging to different models varies .

When determining the criteria for compulsory admission , a basic conflict between a medical model and a civil liberties approach can be identified . These CARDINAL approaches can also be characterised as the “ parens patriae ” approach or the “ police powers ” approach , respectively . The medical model emphasises the need for treatment as a sufficient prerequisite for the involuntary confinement of a mentally ill patient . Supporters of the medical model consider compulsory admission to be essential and inevitable to secure treatment for patients whose mental illness interferes with their capacity to accept treatment on a voluntary basis . Similarly , the “ parens patriae ” approach is the public - policy power of the ORG to act as the parent of an individual who is in need of protection but can not protect himself . On the basis of this power , ORG authorities may make decisions regarding mental health treatment on behalf of one who is mentally incompetent to make the decision himself . A strict human - rights approach accepts forced hospital admission only when a mentally ill person threatens to do harm to others or himself . This is the only criterion ( “ dangerousness criterion ” ) justifying or permitting someone to be admitted involuntarily . This is similar to the police - power approach which authorises and requires the ORG only to interfere in order to protect the public order and the rights and safety of others .

The first and common condition for compulsory admission is the existence of a “ mental disorder ” . This term is generally not defined by legislation and is given a wide definition in practice . Among the States covered by the comparative analysis , only GPE restricts this condition to “ psychosis ” . The same restricted meaning is given to this term in practice in GPE . Schizophrenia is generally included in the notion of psychosis . Therefore it can be concluded that schizophrenia is regarded in the Member States of ORG as a mental disorder of a kind or degree warranting compulsory confinement .

As to the further conditions of compulsory admission , danger to oneself or to others is not an essential prerequisite everywhere . It is completely absent as a criterion in GPE and GPE . A serious threat of harm to the person himself and/or to others is an essential prerequisite for compulsory admission in GPE , GPE , GPE , GPE , GPE and the GPE . GPE , including GPE , GPE , GPE , GPE , GPE , GPE , GPE and GPE apply both the dangerousness criterion and the need - for - treatment criterion , as alternatives , to admit mentally ill patients involuntarily . The dangerousness criterion is not applied in a uniform manner in GPE ORG . GPE qualify the level of danger required for admitting a person involuntarily , others do not . The defined thresholds , however , are rather vague , requiring that the danger to health or safety of the person concerned or to the public be “ serious ” , “ immediate ” , “ significant ” or “ substantial ” . Some countries include only public threats , while others add the element of possible harm to the patient himself . In some jurisdictions , the risk of deterioration of the patient ’s health is expressly mentioned in the law ( GPE , GPE , GPE , GPE and GPE ( in respect of certain psychiatric conditions ) ) , but it is not clear whether and to what extent the risk of deterioration is included by judicial interpretation in the danger to one ’s own health in other GPE . Among those countries that stipulate the need for treatment as a criterion , GPE , GPE , GPE , GPE and GPE additionally emphasise the lack of insight by the patient .

Guardianship rules may also affect the conditions of involuntary admission and treatment of patients with mental disorders . In GPE , there are CARDINAL different admission laws ( Unterbringungsgesetz ) in force in the public laws of the Länder and CARDINAL guardianship law ( Betreuungsgesetz ) in force in the federal civil law , regulating the detention of mentally ill persons under certain circumstances . The public - law aspect is fundamentally determined by a decision of ORG , confirming an overall “ right to be ill ” and largely exempting the society from responsibility for improving the condition of citizens by infringing upon their personal freedom . The function of public law is to avert danger to public order and security relating to mentally ill persons , whereas that of guardianship law is to secure appropriate personal , medical and economic care for those in need due to disability or illness . Such persons are taken care of by a court - appointed guardian who can decide on the necessity of psychiatric treatment , including hospitalisation .

Similarly , in GPE , ORG authorises compulsory admission only if the person suffering from severe mental disorder is dangerous to himself or to other persons , whereas the LAW on the incapacity of adults ( guardianship ) is regarded as serving the protection of mentally ill persons .

The same dichotomy is reflected in the law of GPE where different conditions are applicable depending on the initiator of compulsory admission : if it is initiated by a “ third party ” ( a relative or other private party ) , the person suffering from mental disorder rendering his consent impossible must be in a state that requires immediate care and constant supervision in a hospital , whereas if it is initiated by the police , it must be shown that the person whose mental disorder jeopardises law and order or public safety may cause danger to others .

In GPE , if a police officer has reasonable grounds for believing that a person suffers from a mental disorder and that there is a serious likelihood of that person causing immediate and serious harm to himself or to others , the police may take the person into custody . If confinement is initiated by other persons , it is sufficient that a registered medical practitioner be satisfied that the person is suffering from a mental disorder .

In GPE , compulsory admission is justified if the psychotic patient is either dangerous to self / others or if the prospect for recovery will diminish substantially if detention in a psychiatric ward will not take place . The involuntary admission of a patient to a NORP psychiatric ward will always be for a therapeutic reason ; the placement of incurably mentally disordered people without medical aims is illegal . The LAW on guardianship is applied to placement in nursing homes of incurably mentally disordered people .

In GPE , involuntary treatment is allowed both due to “ need for treatment ” and “ dangerousness ” . For the purposes of “ need for treatment ” , the possible deterioration of the mental illness is expressly referred to . The process of ordering compulsory confinement is organised as a primarily medical decision - making one , similarly to GPE and GPE .

In GPE , in addition to preventing acts of violence against himself or others , a person suffering from a severe psychiatric disorder can be admitted and treated involuntarily when this disorder makes the patient unable to look after his own well being , and ( or ) treatment is expected to improve his condition and reverse the deterioration of his mental health .

In GPE , compulsory admission can be ordered by a court either if the person concerned represents real danger to himself / others as the result of a mental anomaly and he refuses treatment or if the absence of adequate treatment would entail a risk of further deterioration , of which the person himself is unaware .

In GPE and GPE ) , the criteria for detention ( admission for assessment or treatment ) specify that it must be necessary either in the interests of the patient ’s health , or his safety , or for the protection of other persons . In the case of treatment orders of those with psychopathic disorder or mental impairment , there is a further condition , namely that treatment must be “ likely to alleviate or prevent a deterioration ” of the condition in question . Compulsory admission for treatment is justified only if appropriate treatment is available for the person concerned .

In GPE , psychiatric assistance without the consent of a patient is provided for not only if the patient behaves violently or threatens to cause personal injuries to himself or to another person but also if the patient with a mental health disorder has disclosed an inability to care for himself ( or for a person under his guardianship ) and his health might unavoidably and seriously deteriorate .

NORP law also allows for compulsory hospitalisation of a mental patient on account of the risk of a serious deterioration of his health .

In sum , the majority of the Member States of ORG perceive the risk of deterioration of the patient ’s health as justifying his compulsory hospitalisation if he refuses to receive treatment voluntarily . In those GPE where compulsory hospitalisation is more restricted , guardianship laws are applied to provide treatment to persons suffering from a mental disorder without their consent .

As regards the condition that the person detained under LAW ( e ) must be reliably shown to be of unsound mind , the expertise required to assess the medical criteria for admitting a person involuntarily are heterogeneous across LAW . The laws of several GPE permit doctors other than trained psychiatrists to be involved in the initial medical assessment of the persons concerned not only in emergency cases but also during routine involuntary placement procedures ( and thorough assessments are performed by psychiatrists only when a patient is admitted to a psychiatric facility ) , whereas the expert testimony of a psychiatrist is mandatory in the remaining countries ( GPE , GPE , GPE , the GPE , GPE , GPE , GPE and some of the CARDINAL NORP Länder ) . Most Member GPE ( GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE and GPE ) require the opinion or certificate of CARDINAL expert ( but not necessarily all of them being a psychiatrist and not necessarily prior to ordering compulsory admission ) ; the opinion of CARDINAL expert is sufficient in GPE , GPE and the GPE . In GPE , GPE , GPE , GPE and GPE , the decision is left to psychiatrists or other health care professionals , whereas in CARDINAL other GPE the decision is made either by judges , prosecutors , mayors or other agencies independent from the medical system ( e.g. social workers in GPE ) .

GPE require that less restrictive treatment options be considered before ordering compulsory hospitalisation . In GPE , compulsory admission is applicable only when there is no other adequate treatment option . In practice , this is equivalent to the patient ’s refusing voluntary treatment . In GPE and GPE ) the criteria for detention specify that the patient must be suffering from a mental disorder “ of a nature or degree ” which makes it “ appropriate ” for the patient to receive assessment or treatment in hospital . In effect , this means that treatment in the community must be impractical or impossible , the latter being most commonly because the patient can not be relied upon to be compliant with assessment or treatment on a voluntary basis . Compulsory outpatient treatment as a possible less restrictive alternative to compulsory hospitalisation is mentioned in the laws of CARDINAL GPE , GPE , GPE and GPE ) .

The applicant submitted that from the academic literature it was evident that NORP countries recognised dangerousness and incapacity to consent to treatment as CARDINAL separate issues in their mental health systems . Most provided for involuntary treatment separately on both grounds ( e.g. GPE ) , some only on the basis of incapacity ( e.g. GPE ) , but they did not conflate the CARDINAL issues .

In a decision of CARDINAL DATE – CARDINAL BvR CARDINAL/CARDINAL – the NORP ORG accepted a constitutional complaint lodged by a convicted felon committed to a psychiatric hospital as a measure of correction and prevention , holding that the relevant legislation in GPE - Palatinate was unconstitutional . ORG summarised the case as follows :

“ Medical treatment performed against the natural will of a person who , as a measure of correction and prevention , has been committed to an institution ( compulsory treatment ) is an especially serious encroachment on the person ’s fundamental right to physical integrity under Article CARDINAL sentence CARDINAL of LAW ) . The legislature is not as a matter of principle prevented from permitting such encroachments . This also applies to a treatment which serves to achieve the objective of the measure , i.e. is to enable the person committed to an institution to be released . The legal interest of the person ’s own freedom , which is protected as a fundamental right ( LAW ) , may be suitable to justify such an encroachment if due to his or her illness , the person lacks insight into the gravity of his or her illness and the necessity of treatment measures , or is unable to act according to such insight . To the extent that under this condition , an authorisation to perform compulsive treatment is to be recognised by way of exception , this does not establish a “ reason - based sovereignty ” of state bodies over the holder of fundamental rights in such a way that the will of the latter may be disregarded merely because it deviates from average preferences or appears to be unreasonable from an outside perspective . Compulsory treatment measures may only be used if they are promising with regard to the objective of the treatment that justifies their use and if they do not involve burdens to the person affected which are out of proportion to the benefit that can be expected . ” [ press release ]

ORG held in particular as follows :

“ Zwangsmaßnahmen dürfen ferner nur als letztes NORP eingesetzt werden , wenn mildere NORP keinen Erfolg versprechen ... PERSON eine medikamentöse GPE ... bedeutet dies erstens , dass eine weniger eingreifende GPE aussichtslos sein muss . PERSON muss PERSON , soweit der Betroffene gesprächsfähig ist , der ernsthafte , GPE nötigen GPE ohne ORG unzulässigen GPE ... unternommene LOC vorausgegangen sein , seine auf Vertrauen gegründete FAC erreichen . ”

[ Unofficial translation by ORG : ]

( “ Furthermore , coercive measures may only be used as a last resort , when a less restrictive one offers no prospect of success ... In the case of ... compulsory medical treatment , this means that , firstly , a less incisive treatment must appear hopeless . Secondly , if the person concerned is able to communicate , the compulsory treatment must have been preceded by a serious attempt , with the necessary time devoted to it and without exerting impermissible pressure , ... to obtain the trust - based consent of the person . ” [ translation ] )

The case summary continues as follows :

“ Additionally , a person committed to a closed institution depends to a particularly large extent on procedural safeguards in order to preserve his or her fundamental rights . At any rate in case of planned treatment measures , a sufficiently specific announcement is necessary which provides the person affected with the possibility of seeking legal protection in good time . To preserve proportionality , it is essential for compulsive medication to be ordered and supervised by a physician . To ensure proportionality and the effectiveness of legal protection , it is necessary to extensively document treatment measures taken against the will of the person affected . With a view to the special situation - related threats to fundamental rights to which the person who is committed to an institution is exposed , it must furthermore be ensured that compulsory treatment performed in order to achieve the objective of the measure of correction and prevention be preceded by a review taking place under conditions which secure its independence of the institution to which the person is committed . It is for the legislature to elaborate the way in which this will be done .

The essential substantive and procedural prerequisites of the encroachment require legal regulation . ” [ press release ]

Article CARDINAL of LAW on the Rights of Persons with Disabilities reads as follows :

“ CARDINAL . GPE Parties reaffirm that persons with disabilities have the right to recognition everywhere as persons before the law .

GPE Parties shall recognize that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life .

GPE Parties shall take appropriate measures to provide access by persons with disabilities to the support they may require in exercising their legal capacity .

GPE Parties shall ensure that all measures that relate to the exercise of legal capacity provide for appropriate and effective safeguards to prevent abuse in accordance with international human rights law . Such safeguards shall ensure that measures relating to the exercise of legal capacity respect the rights , will and preferences of the person , are free of conflict of interest and undue influence , are proportional and tailored to the person ’s circumstances , apply for the shortest time possible and are subject to regular review by a competent , independent and impartial authority or judicial body . The safeguards shall be proportional to the degree to which such measures affect the person ’s rights and interests .

Subject to the provisions of this article , GPE Parties shall take all appropriate and effective measures to ensure the equal right of persons with disabilities to own or inherit property , to control their own financial affairs and to have equal access to bank loans , mortgages and other forms of financial credit , and shall ensure that persons with disabilities are not arbitrarily deprived of their property . ”

ORG for ORG with Mental Illness and ORG ( adopted by ORG , resolution CARDINAL/CARDINAL of CARDINAL DATE ) contain the following passage :

“ CARDINAL . A person may ( a ) be admitted involuntarily to a mental health facility as a patient ; or ( b ) having already been admitted voluntarily as a patient , be retained as an involuntary patient in the mental health facility if , and only if , a qualified mental health practitioner authorized by law for that purpose determines , in accordance with Principle CARDINAL , that person has a mental illness and considers :

( a ) That , because of that mental illness , there is a serious likelihood of immediate or imminent harm to that person or to other persons ; or

( b ) That , in the case of a person whose mental illness is severe and whose judgement is impaired , failure to admit or retain that person is likely to lead to a serious deterioration in his or her condition or will prevent the giving of appropriate treatment that can only be given by admission to a mental health facility in accordance with the principle of the least restrictive alternative .

In the case referred to in subparagraph ( b ) , a second such mental health practitioner , independent of the first , should be consulted where possible . If such consultation takes place , the involuntary admission or retention may not take place unless the second mental health practitioner concurs .

Involuntary admission or retention shall initially be for a short period as specified by domestic law for observation and preliminary treatment pending review of the admission or retention by the review body . The grounds of the admission shall be communicated to the patient without delay and the fact of the admission and the grounds for it shall also be communicated promptly and in detail to the review body , to the patient ’s personal representative , if any , and , unless the patient objects , to the patient ’s family .

A mental health facility may receive involuntarily admitted patients only if the facility has been designated to do so by a competent authority prescribed by domestic law . ”

ORG ( WHO ) International Statistical Classification of Diseases and Related Health Problems ( CARDINALth Revision ) ( ICD-CARDINAL ) defines paranoid schizophrenia as follows :

“ Paranoid schizophrenia is dominated by relatively stable , often paranoid delusions , usually accompanied by hallucinations , particularly of the auditory variety , and perceptual disturbances . Disturbances of affect , volition and speech , and catatonic symptoms , are either absent or relatively inconspicuous . ”


André Potocki;Angelika Nußberger;Dean Spielmann;Karel Jungwiert;Mark Villiger;Paul Lemmens

The applicant , Mr PERSON , is a NORP national , who was born in DATE and lives in PERSON . He was represented before the Court by Ms B. PERSON , a lawyer practising in GPE .

The applicant ’s son was born out of wedlock in DATE . Following the marriage with the child ’s mother the applicant acquired joint custody ( gemeinsame Personensorge ) in DATE . In DATE the couple separated . The applicant ’s wife and their common son moved to another flat in DATE . However , the child stayed DATE a week with the applicant until DATE .

On DATE the child ’s mother requested ORG to transfer the right to determine where the child should reside ( GPE ) to her . On DATE the applicant requested that custody of the child or , alternatively , the right to determine where the child should reside be transferred to him . On DATE the child ’s mother submitted an interim request to ORG to award custody provisionally to her .

During a hearing before ORG on DATE the child ’s mother requested that custody of the child be transferred to her . By decision of CARDINAL DATE ORG ordered a psychological expert opinion to which parent custody of the child should be transferred .

The expert , having examined the parents and the child , submitted an expert opinion , running CARDINAL pages long , on CARDINAL DATE . The expert found that the child should reside with his mother and recommended to render a joint custody regulation provided that the parents would overcome their personal disputes by using professional assistance .

On DATE the applicant submitted an interim request to ORG to provisionally award him the right to determine where the child should reside . During a hearing before ORG on DATE the applicant withdrew his custody request and confined his application to the right to determine the child ’s place of residence .

By decision of DATE ORG granted the child ’s mother sole custody for the time the parties lived separately . The court held that the child had a closer emotional link with his mother and should therefore remain with her . It further found that under the present circumstances joint custody would not serve the child ’s benefit due to the ongoing disputes between the parents and their failure to agree on basic decisions concerning the child .

By decision dated DATE ORG dismissed the applicant ’s complaint against ORG decision . It expressed misgivings as to whether the parents were willing to cooperate . ORG had regard to the tensions between the applicant and his wife and considered that the parents did not appear to be able to jointly decide important questions in the child ’s best interest .

By written submission to ORG dated DATE , the applicant requested to amend the custody regulation . The applicant submitted that the situation had significantly changed . The parties were now willing and able to cooperate for the child and to make common decisions . The applicant invited ORG to order joint custody in case that the pending divorce proceedings became final . He further requested ORG to appoint a guardian ad litem for the child .

During a hearing before ORG on DATE the applicant ’s wife opposed the request for joint custody . During another hearing before ORG on DATE counsel of the applicant ’s wife declined any friendly settlement in respect of the custody regulation . Neither the applicant ’s wife nor their son attended this hearing .

By judgment dated DATE ORG issued a divorce decree . Simultaneously , it dismissed the applicant ’s request to order joint custody . In this respect ORG relied on Section CARDINAL of GPE ( the “ LAW ” - see Relevant domestic law below ) and found that the applicant had failed to submit any sound reasons ( triftige GPE ) concerning the benefit of the child that might result in a change of the custody regulation .

The applicant appealed . He pointed out , inter alia , that the custody decision was no longer up to date . The applicant submitted that the tensions had loosened against the background of the divorce proceedings and that the cooperation with the child ’s mother proved to be working in DATE routine . The applicant further stressed that the custody decision of ORG had been for the time of separation only and , thus , had had a temporary character . He requested ORG to order a new expert opinion and to hear the child ’s mother in person .

On DATE ORG dismissed the applicant ’s complaint . It relied on Sections CARDINAL and DATE § CARDINAL of LAW . Referring to the case law , it underlined that joint custody and sole custody did not establish a relationship of rule and exception in a way that sole custody of a parent could be regarded as ultima - ratio . The court stated that it was insufficient for an amendment of a custody decision to be compatible with the well - being of the concerned child , but rather that the advantages sought by the amendment had to clearly outweigh the inherent disadvantages . It held that the applicant ’s complaint did not state any sound reason for the change of the custody regulation . Even assuming the alleged practise of joint custody in DATE routine , ORG considered that in addition a shared willingness of both parents to reestablish joint custody was necessary . That in turn could not be assumed in view of the refusal of the applicant ’s wife to change the custody regulation . Moreover , ORG was of the opinion that the applicant could not rely on a change of the circumstances the previous custody decision had been based on , namely that the parents had abandoned their dispute during their separation on the child ’s upbringing and were willing to communicate . It observed that there was no indication that the child would indeed profit from joint custody and the applicant ’s participation in making decisions of far - reaching consequences .

By written submission dated DATE , the applicant lodged a constitutional complaint , alleging that the courts failed to review the custody decision made during the separation phase after the divorce proceedings proprio motu . He argued that the high threshold level implied in Section CARDINAL of LAW for a change from sole custody to joint custody rendered an amendment without the consent of the other parent impossible even if joint custody was practised in everyday life . On DATE ORG refused to admit the constitutional complaint for adjudication without giving further reasons .

Pursuant to LAW of LAW the care and upbringing of children is the natural right of parents and a duty primarily incumbent upon them . The state oversees the performance of this duty .

The relevant provisions of LAW read as follows :

Section CARDINAL Living apart and joint parental custody

“ ( CARDINAL ) If parents who exercise joint parental custody , live apart for a period that is not merely temporary , each parent may apply for the family court to transfer parental custody or part of the parental custody to him alone .

( CARDINAL ) The application is to be granted to the extent that

NORP the other parent consents , unless the child has reached the age of fourteen and objects to the transfer , or

it is to be expected that the termination of the joint parental custody and the transfer to the applicant is most conducive to the best interests of the child ( ... ) ” .

Section CARDINAL Amendment of judicial decisions and of court - approved settlements

“ ( CARDINAL ) The decision on the right of custody or of access or a court - approved settlement must be amended if this is appropriate for sound reasons which affect the benefit of the child in the long term . ( ... ) . “


Remainder inadmissible;No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention;Reasonableness of pre-trial detention);Non-pecuniary damage - award

Anatoly Kovler;Elisabeth Steiner;Erik Møse;Julia Laffranque;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Peer Lorenzen

The applicant was born in DATE and is detained in an unspecified detention facility .

The applicant had been a GPE district prosecutor . He retired in DATE .

NORP The national authorities initiated criminal proceedings against several individuals on suspicion of large - scale embezzlement and abuse of power committed by an organised criminal group and involving public officials ( see also paragraph CARDINAL below ) . It appears that in DATE the applicant was interviewed as a witness .

According to the national authorities ( see paragraph CARDINAL below ) , from DATE the applicant did not comply with the investigating authority ’s summons for interview and was not living at his registered address .

On DATE investigator PERSON issued a decision by which the applicant was given the status of an accused in the above - mentioned criminal proceedings . On DATE the investigator issued a decision prohibiting the applicant from leaving his town of residence and imposing “ good behaviour ” ( подписка о невыезде и надлежащем поведении ) ( see also paragraph CARDINAL below ) . The decision read as follows :

“ [ The applicant ] is registered as residing at the following address ... The investigating authority ’s attempts to determine his actual whereabouts were unsuccessful . There are sufficient reasons to consider that he has attempted to flee prosecution . Therefore , I order a preventive measure consisting of the prohibition to leave the town of residence and the requirement of good behaviour . ”

According to the applicant , neither he nor his lawyer was informed of those decisions at the time .

On DATE , the investigator ordered that the applicant ’s name be put on the federal wanted list . This order was enforced on DATE .

According to the applicant , during this period of time he did not go into hiding ; he was receiving treatment in a hospital and participated in public events . For instance , on DATE he attended a public ceremony for the CARDINALth anniversary of the prosecution service and was given an honorary certificate by the GPE prosecutor .

On DATE the applicant met investigator PERSON and was given a summons for an interview on DATE . On that date the applicant was admitted to town hospital no . CARDINAL . On DATE , investigator PERSON interviewed the applicant ’s son . The latter stated that the applicant had been admitted to hospital but could not indicate the address of the hospital .

On DATE the applicant was transferred to a military hospital .

NORP In reply to an enquiry from investigator PERSON , the town hospital informed him on DATE that the applicant had been admitted to that hospital from DATE to DATE . In reply to another enquiry , the military hospital informed the investigator , apparently on DATE , that the applicant had been a patient there since DATE , and that his treatment was expected to be completed by DATE .

NORP In reply to investigator PERSON ’s summons for an interview on DATE , the applicant ’s lawyer stated that the applicant was receiving in - patient treatment in the military hospital , and requested that the decision to order the addition of the applicant ’s name to the federal wanted list be revoked .

On DATE , DATE , arresting officers visited the applicant in the hospital and took him to ORG at TIME The arrest record was drafted in the following terms :

“ The arrest has been effected under LAW ( CARDINAL ) and LAW because eyewitnesses indicated [ the applicant ] as the perpetrator ; he had previously attempted to evade prosecution and his name had been put on the federal wanted list . If at large , [ the applicant ] would continue to evade prosecution , pursue his criminal activities , threaten other participants in proceedings , destroy evidence or otherwise obstruct the proceedings . ”

The applicant made a handwritten comment on the record , indicating that he had not been identified by any eyewitnesses , had been living in his flat in GPE and had not attempted to evade prosecution . The applicant was provided with a copy of the investigator ’s order listing the charges against him . The applicant was then interviewed in the presence of counsel until TIME in connection with these criminal charges . In addition to detailed comments on the charges against him and relevant other matters , the applicant stated that he had been forced to leave the military hospital , and asked to be re - admitted or provided with medical assistance .

The applicant was accused of membership of an organised criminal group ( преступное сообщество ) , involving , inter alia , a district prosecutor , an investigator and several senior officers . According to the investigating authority , this group was structured , had a stable membership with assigned roles in criminal activities , internal discipline and sophisticated planning , involving participants outside the criminal group , including officials in law - enforcement agencies . According to the investigating authority , in DATE this group set up bogus criminal proceedings and held searches of the premises of several private companies , seized their property , and misappropriated other property . The applicant was charged under LAW ( embezzlement as part of an organised group or on a large scale ) , LAW in conjunction with LAW ( incitement to abuse of power causing serious damage ) , and LAW ( membership of a criminal group ) .

The investigator sought judicial authorisation of the applicant ’s continued detention , alleging that since DATE the applicant had been a member of an organised criminal group which had committed various acts of fraud with the aid of public officials in office . The investigator referred to the applicant ’s failure to comply with the preventive measure , his previous employment as a public prosecutor , and the existence of strong corruptive links between him and certain officials in the prosecution service or law - enforcement agencies . The investigator relied in that connection on the results of the tapping of the applicant ’s telephone conversations with others .

On DATE the ORG of Moscow held a hearing at which it confirmed the lawfulness of the applicant ’s arrest and authorised his continued detention in the following terms :

“ Bearing in mind the gravity of the charges , the public dangerousness of the offences , the factual circumstances of the case and the addition of [ the applicant ’s ] name to the wanted persons list , the court has reasons to consider that if at large he would evade prosecution , influence witnesses or co - accused or otherwise obstruct the proceedings . The court is satisfied that the investigating authorities first learnt about the admission of [ the applicant ] to a specific medical facility only on DATE . The authority had first been informed about his admission to hospital no . CARDINAL after his discharge from this hospital . When ordering measures to determine his whereabouts the authority had no relevant information . ”

The applicant appealed , contending that the first - instance court had not examined any evidence concerning the allegation that he would evade prosecution . He argued that he had permanent residence in GPE ; the prosecution had been aware of his whereabouts from the tapping of his mobile phone ; there was no reason to put his name on the wanted persons list since on DATE he had had an interview with the investigator . In any event , until DATE the applicant had had witness status in the criminal proceedings and thus had not been under an obligation to inform the investigating authority of his whereabouts .

On DATE ORG upheld the detention order .

On CARDINAL DATE the applicant was given access to the criminal case file .

On DATE ORG held a hearing . The investigator argued that the applicant should be kept in detention for DATE because time was required to allow the defendants and their lawyers to study the case file , to draft a bill of indictment before submitting the criminal case to a trial court . The investigator argued that the grounds for detention persisted , in view of the gravity of the charges and the circumstances of the criminal case . Accepting that the investigating authority needed more time to complete the investigation , ORG extended the applicant ’s detention until DATE . The court mentioned the gravity of the charges and the addition of the applicant ’s name to the wanted persons list .

On DATE ORG extended his detention until CARDINAL DATE on similar grounds . On DATE the term of detention was extended until DATE .

On DATE ORG extended the applicant ’s detention until DATE , with reference to LAW ( CCrP ) ( see paragraph CARDINAL below ) . The court held as follows :

“ [ The applicant ] has been charged with serious criminal offences ... The present case is particularly complex , and has required a large number of investigative measures and assessment of a large amount of documents concerning commercial activities . The file consists of CARDINAL volumes . CARDINAL individuals have been charged . The exceptional nature of the case is evident . [ The applicant ] has been charged with CARDINAL offences and has been studying the case file since DATE . There were no unjustified delays in the investigation ; [ the applicant ] was promptly given access to the file . As can be seen from the schedule for studying the file , the defendants study it on a DATE basis , except DATE and public holidays .

According to the version of the investigating authority , the offences in question were committed by an organised criminal group . The relevant reasons for detention persist .

After interviewing [ the applicant ] as a witness in DATE , since DATE the investigating authority issued summons for interviews , which is confirmed by [ the applicant ’s ] wife , the summons and other reports . [ The applicant ] did not attend interviews , was not at his registered address , and his whereabouts could not be determined . For these reasons , on DATE his name was added to the wanted ORG list .

The above circumstances suffice to conclude that if released he would evade prosecution . Moreover , it is necessary to complete the study of the case file ; he may also continue his criminal activities . Alternative preventive measures would not suffice ... ”

On DATE ORG upheld the detention order of DATE .

On DATE ORG extended the detention of CARDINAL defendants , including the applicant , until DATE . Referring to LAW ORG , the court mentioned the complexity of the criminal case ; that the offences had spanned a long period of time ; and that some defendants needed to finish studying the case file . The court refused bail , including for health reasons .

The applicant appealed , arguing that his detention could not be extended beyond the DATE period indicated in LAW On DATE ORG rejected his arguments and upheld the detention order of DATE .

On DATE the criminal case was submitted for trial in ORG . The trial started on DATE . On DATE , the court refused the detainees’ applications for release and left the “ preventive measure unchanged ” , referring to the gravity of the charges and the risk that they would flee justice and put pressure on the victims and witnesses on account of the status of public officials held by some of them , including the applicant . Referring to LAW CCrP , the court held as follows :

“ Given the gravity and the number of charges , the present case discloses a public interest and importance which plead , despite the presumption of innocence , in favour of limitation of the [ defendants’ ] liberty ; it is not possible to choose a less intrusive preventive measure . ”

The applicant appealed , contending that the courts had not relied on any averred facts to draw conclusions as to the existence and pertinence of the above - mentioned risks , and that his detention after DATE had been unlawful . On DATE ORG upheld the above - mentioned court decision .

On DATE and DATE ORG issued detention orders extending the applicant ’s and his co - accused ’s detention pending trial . These detention orders read as follows :

“ Given the number of defendants , the gravity and the number of charges , the present case is exceptional ( also as to its volume and complexity) ... An extension of the period of the GPE detention is necessary in view of the need to complete the trial , to prevent risks of fleeing justice and putting pressure on victims or witnesses , this latter risk being real because of the previous professional activity of certain defendants in law - enforcement agencies .

The grounds cited for ordering and extending detention at earlier stages of the proceedings persist ; no new circumstances have been mentioned by the defence ...

It appears that the applicant was convicted on DATE .

In DATE , DATE and DATE the applicant was admitted to various civil hospitals and CARDINAL military hospital for treatment in relation to a number of conditions of varying degrees of seriousness . From DATE to DATE the applicant was admitted to a town hospital with the following diagnoses : ORG oedema , chronic recurrent nettle rash , intolerance to a number of drugs , focal bulbitis , non - atrophic gastritis , chronic gastroduodenitis and symptoms of hepatitis .

On DATE or DATE the applicant was admitted to the neurology unit of a military hospital with the following diagnoses : chronic hypertensive encephalopathy and asthenic syndrome , coronary heart disease , exertional angina ( pectoris ) , high blood pressure , kidney maldevelopment , oesophagal hernia , and bronchitis . The applicant ’s medical history reads as follows :

“ The patient complained of headaches , dizziness , heavy fatigue , insomnia , and recurrent chest pain .

Anamnesis : For DATE the patient has the following diagnoses : hypertensive encephalopathy , generalised spinal osteochondrosis ... Outpatient and in - patient treatment gave positive results . The recent observations disclose a more severe pain syndrome .

Objective examination data and tests : The patient ’s global condition is satisfactory ... The general blood and urine tests are normal ; biochemical blood tests are normal ; negative testing for hepatitis B and C ; an electrocardiogram discloses an obstruction of intra - ventricular conduction and indications of left ventricular hypertrophy .

Treatment : regimen , diet , medication and vitamins ... The patient has been discharged from hospital in a satisfactory condition . Recommendations include monitoring by a neuropathologist and a therapist ; blood pressure control , diet no . CARDINAL , medication by Enalapril ( CARDINAL pill in the morning ) , PERSON ( CARDINAL pill twice a day ) and ORG ( CARDINAL pill regularly ) ; no load - bearing affecting the spine , no exposure to cold ; massage and exercise therapy . ”

NORP In reply to a request from the investigator dealing with the applicant ’s criminal case ( see paragraph CARDINAL above ) , the hospital informed him that the applicant ’s course of medical treatment was expected to be completed by DATE .

On DATE arresting officers visited the applicant in the military hospital and took him to ORG at TIME .. The applicant made the following written comment on the arrest record :

“ I am unfit for any further interview , suffering acute chest pain and high blood pressure ” .

The applicant was then interviewed in connection with the criminal charges against him . In addition to detailed comments concerning the charges against him and other relevant matters , the applicant stated that he had been forced to leave the military hospital , and asked to be re - admitted to it or given medical assistance in detention .

According to the applicant , at some point during the interview he had a hypertensic attack ; the investigator called the emergency services , who provided the applicant with medical assistance . The applicant subsequently amended his statement , alleging that the investigator had refused to call the emergency services .

After the interview the applicant was placed in a temporary detention centre or a cell in the police station and , allegedly , was not provided with medical assistance or food . The applicant unsuccessfully sought the institution of criminal proceedings against the investigator(s ) .

NORP The applicant lodged complaints of inadequate medical assistance after his arrest . On DATE an investigator in ORG dismissed them . By a letter of DATE , ORG considered that the above complaints did not disclose any criminal offence and that the applicant had received and was receiving the necessary medical assistance .

On DATE the applicant was transferred to GPE remand centre no . MONEY . During his admission to the remand centre he was examined by the duty medical assistant , who concluded that his state of health was satisfactory . The applicant informed the medical assistant of his health problems and the medication he was taking . The medical documents submitted by the applicant were admitted to the file . The applicant underwent compulsory tests such as fluographic imaging . According to the Government , on DATE he was placed under supervision by the medical staff and received medication for his chronic conditions .

On DATE the applicant was examined by a doctor in connection with his complaints of double vision and dizziness . His blood pressure was measured and he was prescribed medication with Enalapril ( CARDINAL pill twice a day ) and Validol ( one pill ) . According to the applicant , there was no documentary proof that he had received this medication , which , in any event , was “ scarce ” .

The applicant was again examined on DATE , when he complained of headaches and dizziness .

On DATE the applicant complained that his state of health was not being attended to by medical specialists in various fields ( a cardiologist , a therapist , a neuropathologist , a pulmonologist , an endocrinologist and a gastroenterologist ) and that his discharge from hospital in DATE had prevented him from receiving a proper diagnosis from an allergist , in order to exclude any undesirable medication . On DATE ORG examined his complaint and concluded , with reference to an information note from the remand centre , that the applicant ’s state of health was satisfactory , that he could request the necessary medical assistance in the remand centre or challenge any refusal before a prosecutor or a court . In addition , by a letter of CARDINAL DATE ORG indicated that the applicant had received the requisite treatment for his symptoms , as requested in DATE .

In DATE the applicant sought an expert report from PERSON , professor and deputy chair of the psychotherapy and narcology department of a GPE university , concerning his illnesses over a period of time since DATE . Having assessed the available medical data ( see paragraphs CARDINAL and DATE above ) , PERSON made the following findings in her report of DATE :

“ The patient requires monitoring by medical specialists in various fields ( a cardiologist , a neuropathologist , a pulmonologist , an endocrinologist , a gastroenterologist and an allergist ) and constant intake of medication under the supervision of a medical professional . The recommendations include diet , blood pressure control , glucose blood control , thyroid hormone control , lipidic control , as well as exclusion of static spinal pressure and load lifting , and exclusion of exposure to cold .

Non - provision of specialised medical care may cause irreparable health damage and result in the exacerbation of chronic illnesses , disability ( a heart attack or a cerebrovascular accident ) or death . ”

On DATE the applicant was examined by the senior medical officer of the remand centre in connection with his complaints of headaches , dizziness and pain in the thoracocervical area and was given medication .

From DATE to CARDINAL DATE the applicant was admitted to a prison hospital of remand centre no . MONEY in order for additional examinations by specialist doctors , such as a neuropathologist and a cardiologist , to be carried out . The applicant had an electrocardiogram and was prescribed medication with GPE , PERSON and PERSON . It appears that in DATE the applicant made a written statement that he no longer wished to be treated in the prison hospital . The discharge certificate contained recommendations of monitoring , blood pressure control , and medication with GPE and GPE .

After his discharge from the hospital the applicant was transferred back to remand centre no . GPE . He was examined by the senior medical officer of the remand centre , who prescribed medication and medical check - ups twice a year .

In DATE the applicant sought another expert opinion from Professor PERSON assessed the available medical data ( see paragraphs CARDINAL and DATE above ) , on DATE PERSON expanded her earlier report , finding as follows :

“ Recurring episodes of ORG oedema pose a real risk to life because of the absence of data concerning the syndrome aetiology and the absence of diagnosis and treatment of an allergic condition , which is indispensable . In the absence of treatment , there is a heightened risk of anaphylactic shock . ”

On DATE the applicant was examined by the remand centre doctor in connection with complaints of pain in the ankle joint . The doctor diagnosed dermatitis and athrosis , and prescribed medication . It appears that DATE the applicant refused to take the drugs , referring to raised blood pressure after earlier medication . On DATE the applicant was again examined by the doctor , who modified his prescriptions .

The Government submitted to the ORG nine written statements made by the medical staff of remand centre no . MONEY , to the effect that the applicant had made no complaints concerning medical care or food rations and that he had been provided with adequate medical care . The Government produced detailed descriptions of the food rations provided to detainees in remand centre no . MONEY in DATE , as well as food and water quality reports issued by the specialised unit of ORG .

NORP law gives detailed guidelines for the provision of medical assistance to detained individuals . These guidelines , found in joint Decree no . CARDINAL/CARDINAL of ORG and ORG , on ORG or Detained ( “ the Regulation ” ) , enacted on DATE , are applicable to all detainees , without exception . In particular , section III of the Regulation sets out the procedure for initial steps to be taken by the medical personnel of a detention facility on admission of a detainee . On arrival at a temporary detention facility all detainees must have a preliminary medical examination before they are placed in cells shared with other inmates . The examination is performed with the aim of identifying individuals suffering from contagious diseases or in need of urgent medical assistance . DATE after the detainee ’s arrival at the detention facility he should receive a medical examination , including fluorography . During the in - depth examination a prison doctor should record the detainee ’s complaints , study his medical and personal history , record injuries if present , as well as recent tattoos , and schedule additional medical procedures if necessary . A prison doctor should also authorise laboratory analyses to identify sexually transmitted diseases , HIV , tuberculosis and other illnesses .

Subsequent medical examinations of detainees are performed at least twice a DATE or at a detainee ’s request . If a detainee ’s state of health has deteriorated , medical examinations and assistance should be provided by medical personnel of the detention facility . In such cases a medical examination should include a general medical check - up and additional methods of testing , if necessary , with the participation of particular medical specialists . The results of the examinations should be recorded in the detainee ’s medical history . The detainee should be fully informed of the results of the medical examinations .

Section III of the ORG also sets the procedure for cases of refusals by detainees to undergo medical examination or treatment . In each case of refusal , an entry should be made in the detainees’ medical record . A prison doctor should explain to the detainee the consequences of his refusal to undergo the medical procedure .

Detainees take prescribed medicines in the presence of a doctor . In a limited number of cases the head of the medical department of the detention facility may authorise medical personnel to hand over a DATE dose of medicines to the detainee for unobserved intake .

Article CARDINAL § CARDINAL of LAW concerning detention pending investigation provided at the time that after the initial period of detention for DATE , another period of detention of DATE could be ordered by a court . After DATE , detention could be ordered up to DATE in relation to serious and particularly serious offences if the case was particularly complex . It followed from LAW that detention beyond DATE and DATE could be ordered in cases of particularly serious offences .

Under LAW , after the closure of the preliminary investigation but DATE before the expiry of the applicable maximum period of detention ( see above ) , the defendant should be given access to the case file . If the defendant obtained access to the file DATE before the expiry of this period of detention , he should be released when this period reached its term . However , if the time afforded for studying the file was insufficient a court could authorise an additional period of detention until such time the defendant finished studying the file ( LAW ) . This extension also applied to any other co - defendant who may have already finished studying the file .

Under LAW a witness should comply with a summons issued to him by an investigator or a court ; for failure to comply a witness may be brought before the authority which issued the summons .

A suspect , an accused or defendant may be subject to a preventive measure consisting of a written undertaking by that person not to leave their location of residence without permission from an investigator or a court and/or to respond to any summons issued by them and/or to refrain from any other conduct obstructing the proceedings ( LAW ) .


Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Peer Lorenzen;Rait Maruste;Renate Jaeger;Snejana Botoucharova

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

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

On DATE the applicant brought a civil action against his former employer seeking to quash an appraisal report of him .

It appears that the proceedings are still pending .

On DATE the applicant filed a civil action against his former employer for the payment of CZK MONEY ( application no . CARDINAL/CARDINAL ) .

The proceedings terminated with a decision of ORG of DATE .

On DATE the applicant brought a civil action seeking to quash an employee ’s card issued by his former employer on DATE and the delivery of a new card alleging that the period of employment was wrongly recorded . On DATE ORG suspended the case pending the outcome of the proceedings instituted by the applicant against his former employer for the payment of CZK CARDINAL,CARDINAL ( application no . CARDINAL/CARDINAL ) .

On DATE the court resumed the proceedings which seem to be still pending .

On DATE the applicant issued proceedings for damages against ORG ( Východný ústav pro děti a mládež ) which are still pending .

The relevant domestic law and practice concerning remedies for the allegedly excessive length of judicial proceedings are set out in the ORG ’s decision in the case of PERSON v. GPE , no . MONEY ( dec . ) , § § CARDINAL - CARDINAL , DATE ) .


Preliminary objection rejected (estoppel);Violation of Art. 8

The applicant is an NORP citizen , born in DATE , and lives in GPE , GPE .

In DATE the applicant commenced his military training in GPE . It is not clear whether he participated directly in the war between GPE and GPE . On DATE he deserted and fled to GPE , where he arrived on CARDINAL DATE . It appears that the applicant stayed for some time in GPE and then in GPE .

He arrived in GPE on DATE and applied for asylum . Pursuant to the practice of the NORP immigration authorities at that time , all asylum - seekers from GPE who , due to desertion from the army , had left their home country before the armistice between GPE and GPE in DATE were granted a residence permit . Accordingly , on DATE the applicant was granted a residence and work permit . On DATE the residence permit became permanent .

In DATE the applicant met a NORP woman , A , with whom he cohabited . A daughter was born out of the relationship on DATE . The applicant and A got married on DATE and had another child , a son , born on DATE . A also has a daughter born in DATE from a previous relationship , who lives with A and the applicant , and with whom the applicant has a very close relationship . All CARDINAL children have been raised pursuant to NORP traditions .

It appears that the applicant 's family broke off all relations with him in DATE due to his desertion from the army .

NORP In GPE the applicant had been making a living as the owner of a pizzeria until DATE . Since DATE he had been receiving welfare benefits and was at the same time assigned job training by the municipality with the possibility of continuing employment . A works at a retirement home .

On DATE the applicant was arrested and detained on remand , charged with drug trafficking allegedly committed during DATE . By judgment of DATE ORG ( retten i Hobro ) found him guilty , inter alia , of drug trafficking with regard to QUANTITY of heroine contrary to LAW . He was sentenced to DATE imprisonment and , pursuant to sections CARDINAL and CARDINAL of LAW , was expelled from GPE with a life - long ban on his return .

The applicant appealed against the judgment but withdrew the appeal in DATE , whereupon ORG judgment acquired legal force .

On DATE , pursuant to section CARDINAL of LAW , the applicant instituted proceedings in ORG claiming that material changes in his circumstances had occurred on account of which he requested the court to review the expulsion order . He referred to his family situation and alleged , with reference to information obtained from ORG , that it could not be ruled out that he would risk severe punishment in GPE for having deserted from the army and also perhaps receive a life sentence for the narcotics crimes committed in GPE .

On DATE ORG rejected the applicant 's request , as it did not find that the applicant 's situation had changed to such an extent that there was any reason to revoke the expulsion order . This decision was upheld by ORG ) on DATE .

On DATE the applicant had served CARDINAL of his sentence and was due to be released on parole . Since he did not consent to the deportation and refused to leave the country voluntarily , he was detained as from that date in accordance with LAW with a view to being repatriated . Also in accordance with LAW , the applicant availed himself of the possibility , prior to the enforcement of a deportation , to bring before the immigration authorities ( ORG ) the question whether he could be returned to GPE , since , pursuant to LAW , an alien must not be returned to a country in which he or she will risk persecution on the grounds set out in LAW July DATE concerning LAW . The immigration authorities found , on DATE , that the applicant would not risk persecution in GPE of a kind which could constitute a basis for his remaining in GPE . The applicant appealed against this decision to ORG ( PERSON ) , which on DATE requested ORG to provide more information on the situation in GPE .

Having obtained information from several different authorities , on CARDINAL DATE ORG confirmed the immigration authorities ' decision .

Subsequently , relying on section CARDINAL of LAW for the second time , and claiming that material changes in his circumstances had occurred , the applicant requested ORG to reconsider the expulsion decision . The court had the same material at its disposal as ORG and a number of statements from doctors concerning the applicant 's state of health . In addition , A was heard stating inter alia that her daughter from a previous relationship , refuses to move to GPE . By judgment of DATE the ORG revoked the decision to expel the applicant .

On DATE the High Court of Western Denmark quashed the above decision and dismissed the applicant 's request for reconsideration of the expulsion order since , pursuant to section CARDINAL of LAW , an expelled alien is entitled to CARDINAL judicial review of the question of expulsion . The applicant 's application for leave to appeal against this decision was granted by the Leave to Appeal Board ( Procesbevillingsnævnet ) on CARDINAL DATE .

The applicant was released from his detention on CARDINAL DATE .

On DATE ORG upheld ORG decision of DATE as it agreed that a request for a review of an expulsion order pursuant to section CARDINAL of LAW could only be examined once by the courts .

LAW formerly provided in so far as relevant :

Section CARDINAL

“ An alien who has lawfully lived in GPE for more than DATE , and an alien issued with a residence permit under sections DATE may be expelled only if :

( iv ) the alien is sentenced to imprisonment or other custodial penalty pursuant to LAW or Articles CARDINAL or CARDINALa of LAW . ”

Section CARDINAL :

NORP “ In deciding whether or not to expel the alien , regard must be had not only to the alien 's ties with the NORP community , including the duration of his stay in GPE , but also to the question whether expulsion must be assumed to be particularly burdensome on him , in particular because of :

( i ) the alien 's age , health , and other circumstances ;

( ii ) the alien 's personal or family ties with NORP or foreign nationals living in GPE ;

( iii ) the alien 's other ties with GPE , including whether the alien came to GPE in his childhood or DATE and therefore spent some or all of DATE in GPE ;

( iv ) the alien 's slight or non - existent ties with his country of origin or any other country in which he may be expected to take up residence ;

( v ) the risk that the alien will be ill - treated in his country of origin or any other country in which he may be expected to take up residence ; and

( vi ) exposure to outrages , misuse or other harm etc . in the present country causing an alien holding a residence permit pursuant to section CARDINAL , subsection CARDINAL ( ii ) to no longer cohabit at a shared residence with the person permanently resident in GPE , or the alien 's otherwise particularly weak position .

An alien may be expelled pursuant to section CARDINAL ) unless factors mentioned in subsection CARDINAL above constitute a decisive argument against doing so . ”

Section CARDINAL ( CARDINAL ) provides :

“ If expulsion under section DATE ( CARDINAL ) has not been enforced , an alien claiming that a material change in his circumstances has occurred , cf . section CARDINAL , may demand that the public prosecutor bring before the court the question of revocation of the expulsion order . Such a petition may be submitted not DATE and DATE when enforcement of the expulsion can be expected . If a petition is submitted at DATE , the court may decide to examine the case if it deems it to be excusable that the time - limit has been exceeded . “


The applicant , born in DATE , presently resides in GPE , GPE . In his application form , he states that he has NORP nationality .

a.

On DATE the applicant arrived in GPE and requested asylum . He stated that he came from GPE and that he had fled the country to escape the ongoing war . He had not taken active part in the conflict . He had stayed with his sister in GPE , GPE since DATE . In GPE he had obtained a NORP passport . However , this was to be considered as a travel document only . If sent to GPE , he would not receive any help or protection from NORP authorities and he would risk to be sent back to GPE to serve in the NORP army .

On DATE ORG ( ORG invandrarverk ) rejected the applicant ’s request and ordered his deportation to GPE . Finding that the applicant held both NORP and NORP citizenship , the ORG referred to a decision concerning asylum seekers with such double nationality taken by ORG on DATE . According to the decision , the prevailing situation in GPE rendered deportations to that country impossible . Consequently , in assessing applications from these asylum seekers , the crucial question was whether they could be afforded protection in GPE . ORG noted that , according to available information , persons in the applicant ’s situation did not risk to be sent from GPE to GPE against their will . There was no reason to assume that GPE would not afford the applicant protection . Moreover , no acts of warfare had taken place on NORP territory for some time and a cease - fire had been agreed upon by the contending parties . Thus , there was no apparent risk that NORP citizens in general would be forced to take part in armed conflict . Further , the applicant had failed to show that he personally faced such a risk .

The applicant appealed to ORG ( Utlänningsnämnden ) . On DATE ORG granted the applicant a temporary residence permit until DATE and quashed the deportation order . In so doing , the ORG referred to a Government decision of CARDINAL DATE according to which the worsened situation in GPE constituted an impediment to the deportation of asylum seekers to that country .

On DATE the applicant submitted a new application for a residence permit . He referred to his previous statements . Further , in a statement of DATE he claimed that he should be granted a residence permit on humanitarian grounds as , during his long stay in GPE , he had adjusted to NORP society .

On DATE ORG rejected the applicant ’s new application and ordered his deportation to GPE . ORG had regard to a guiding decision taken by ORG on DATE . In that decision the ORG stated , inter alia , the following :

( Translation )

“ Recently , the situation in GPE has improved . After the parties signed a general agreement on peace in GPE there is an ongoing peace process in the country . It has been strengthened by the establishment of Government institutions and the general elections held in DATE . There are still actual restrictions on the movement of people within the territory of the ORG . The possibility to return to the home district without risking harassment and outrage is , in the present circumstances , dependent on the prevailing ethnic composition of the population in the district . In the ORG ’s view , it is now possible to return to the home district where one ’s own ethnic group is in the majority . This view corresponds to the position taken by the ORG in regard to the return of people to GPE . The relative stability enjoyed by “ the majority population ” in the respective regions leads to the conclusion that asylum seekers from such places in GPE can no longer be considered as generally being in need of protection .

As regards the situation in GPE and the region , the ongoing peace process , based on a general agreement on peace in GPE , has lead to stabilisation . The relations between GPE and GPE have improved . GPE has been admitted into ORG . Acts of warfare have not occurred on NORP territory since DATE . The risk of further conflicts appears unlikely . The general situation in GPE has improved in such a way since the Government ’s previous assessment in DATE that nowadays NORP citizens can generally be afforded protection in GPE . ”

ORG noted that ORG view , that NORP citizens who are not or have not been residing permanently in GPE are given the same protection as other citizens of that country , had been confirmed by the ORG High Commissioner for Refugees ( ORG ) and ORG . As regards the applicant ’s situation , the ORG found that , being an ethnic NORP , he could not be sent back to his NORP - dominated home district in GPE . With respect to the possible deportation to GPE , the ORG noted that no new circumstances had been invoked by the applicant . Consequently , the ORG reiterated the conclusions drawn in its previous decision . Furthermore , the ORG found that there were no reasons of a humanitarian nature to grant the applicant a residence permit .

Following the applicant ’s appeal , ORG , on DATE , quashed ORG decision and referred the case back for re - examination . ORG found that no oral hearing had been held by ORG , as required by law .

ORG held an oral hearing in the case on DATE during which the applicant stated that his brother , who had also applied for asylum in GPE , had returned to GPE voluntarily , as he could not stand having to wait for his application to be examined . After his return , the applicant had talked to him only once and did not know how he managed in GPE . The applicant claimed that he could not go to GPE , as he was a NORP citizen without connections to GPE . Further , he had lost contact with his parents who remained in GPE .

In a decision of CARDINAL DATE ORG rejected the applicant ’s new application on the same grounds as those expressed in the quashed decision .

The applicant appealed and invoked a medical certificate issued on DATE by chief physician PERSON and therapist PERSON at the psychiatric clinic at the hospital in GPE . According to the certificate , the applicant ’s mental health was failing . He also invoked his family ties with his uncles and his sister who lived in GPE .

On DATE ORG rejected the applicant ’s appeal . It shared the conclusions drawn by ORG and added that the applicant ’s family ties were not sufficient to grant him a residence permit as he had not been living with his relatives .

The applicant later submitted another application to ORG and requested that the enforcement of the deportation order be suspended . He invoked further medical certificates issued by PERSON and PERSON on DATE and DATE . According to the certificates , the applicant had had regular contact with the clinic since DATE due to a post - traumatic stress syndrome . He had been admitted to the clinic on DATE as his mental state had deteriorated , probably on account of his imminent deportation .

On DATE ORG rejected the latest application .

Relevant domestic law

Under LAW of LAW ( Lagen om psykiatrisk tvångsvård , DATE ) , such care shall be terminated at the request of the competent police authority whenever the person placed in care is ordered to be deported . This presupposes , however , that the chief physician finds that the alien ’s condition allows that the deportation takes place . According to LAW , no appeal lies against the chief physician ’s decision .


CASE OF ÖZCAN KORKMAZ  AND OTHERS v. TURKEY

Violation of Article 6 - Right to a fair trial

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

The applicants were all former members of ORG , who had been discharged for disciplinary reasons .

The applicants brought separate proceedings before ORG , requesting the annulment of their discharge .

ORG held , after hearing the parties ( except in application no . CARDINAL/CARDINAL where no hearing was held ) and examining the confidential documents submitted by ORG by virtue of LAW no . DATE , that the applicants ' discharges had been in conformity with the applicable laws . Consequently , it rejected their annulment requests . Neither the written opinion of the principal public prosecutor submitted to ORG prior to the hearings , nor the comments of the reporting judge which were entertained during the deliberations , were communicated to the applicants .

The applicants subsequently requested the rectification of ORG decisions . Their requests were rejected on DATE :

- application no . CARDINAL : DATE ( decision served on the applicant on DATE )

- application no . CARDINAL/CARDINAL : DATE

- application no . CARDINAL : CARDINAL DATE

A description of the relevant domestic law can be found in the decision of GPE v. GPE ( ( dec . ) , no . CARDINAL/CARDINAL , DATE ) . In particular , LAW no . CARDINAL on ORG provides as follows :

“ Prosecutors shall examine the files assigned to them on behalf of ORG and shall give their written reasoned opinions on [ his or her ] behalf within DATE at the latest in proceedings [ on the merits ] ... [ They ] shall perform other tasks assigned by the President and ORG ...

Prosecutors may demand , through the President , all types of information and files from the relevant authorities .

Where deemed necessary by ORG , prosecutors may [ be asked to ] express their opinions orally ... ”

Provisional LAW no . DATE provides as follows in respect of the functions of the reporting judge :

“ ... Rapporteurs shall duly examine the cases assigned to them by the Presidents of the Chamber[s ] and shall provide the ORG or ORG with the necessary explanations .

[ The rapporteurs ] shall give their ORG ] and conclusions orally and in writing , shall write draft judgments , [ and ] draw up the necessary minutes . [ They ] shall perform other tasks assigned by the President or the President of the Chamber[s ] . ”


Alvina Gyulumyan;Egbert Myjer;Ineta Ziemele;Josep Casadevall;Kristina Pardalos;Luis López Guerra;Mihai Poalelungi

NORP The applicant , Mr PERSON , is a NORP national of GPE ethnic origin , who was born in DATE and lives in GPE . Since DATE he has been involved in a long - term unregistered partnership with Ms ORG The applicant is illiterate . He is represented before the ORG by Mr PERSON , a lawyer practising in GPE . ORG ( “ the Government ” ) were represented by their Agent , Mr Răzvan - Horaţiu Radu and subsequently by their ORG , PERSON , both of ORG .

NORP In an initial letter submitted to the ORG on DATE the applicant complained of his living conditions unsuitable to his state of health . He subsequently reiterated this complaint and alleged the authorities’ failure in the provision of adequate housing in CARDINAL application forms submitted on DATE and DATE respectively . None of the application forms were signed by the applicant ; however the latter was accompanied by a signed cover letter .

On DATE the applicant was diagnosed with paralysis of the left side of the body caused by a stroke and on DATE with chronic hepatitis and brain damage ( sindrom cerebelos ) . Because of his medical condition , on DATE the applicant was declared severely handicapped by the Commission for the evaluation of handicapped persons , functioning under the authority of the county council ( “ the commission ” ) . Starting with CARDINAL DATE he was offered a DATE pension of CARDINAL NORP lei ( ROL ) . Since DATE , the applicant ’s classification in the category of handicapped persons continued to be renewed DATE until present .

On DATE the applicant was also diagnosed with epilepsy and severe brain deficiency .

According to the report issued by the above - mentioned commission on DATE , the applicant ’s condition as a handicapped person was declared as less severe , as his health condition improved .

The applicant and his partner , ORG , left the parental village house and moved to the town of GPE in DATE , after the death of his father . Facing major difficulties in finding affordable accommodation , around the same date , the applicant allegedly started formulating requests for social housing at various authorities , verbally or in writing through the help of ORG

According to the applicant , in the course of DATE he moved together with his partner in a deserted horse stable belonging to the state which was unofficially allocated to them as social housing by the GPE . The Government contested this allegation and submitted that the applicant and his partner started living in the stable of their own will during DATE .

Welfare investigations conducted DATE by the social services at the request of ORG for the evaluation of handicapped persons DATE stated that the applicant was living in the town of GPE together with ORG , in CARDINAL room “ inside a stable in conditions unsuitable for living in ” . The social services inspectors found that the above - mentioned housing lacked running water , heating , a toilet or a bathroom as well as electricity .

On DATE ORG published a list of priorities for the allocation of social housing which included ORG and her partner , supposedly the applicant .

In a letter of DATE sent by ORG in response to the applicant ’s complaints concerning his housing situation , the prefect mentioned that the applicant was living in a stable provided as social housing by FAC and informed him that his requests for more appropriate social housing had been sent to that institution in order to be dealt with .

In the course of DATE the GPE finalised the rehabilitation of a building for the purposes of social housing . On DATE , ORG together with the applicant , considered as a family member for the purposes of the tenancy contract , obtained an offer of a social tenancy and moved in a CARDINAL - room apartment in the rehabilitated building .

Following the applicant ’s relocation , the stable was demolished by the municipality .

Article CARDINAL of the Emergency Ordinance no . CARDINAL on the protection of the handicapped persons provides as follows :

“ ( CARDINAL ) With the purpose of ensuring the right to social security , protection of health and education , the adults with a handicap have the following rights :

p ) NORP priority for renting , building or buying a lodgement from the state ; ”

According to LAW no . ORG on housing , the minimum requirements for a social lodgement are the following : the existence of a space for resting , a space for preparing food , a bathroom and access to electricity , drinking water and sewage facilities .