Partly inadmissible;Violation of Art. 3 (substantive aspect);Violation of Art. 3 (procedural aspect);Non-pecuniary damage - award

Anatoly Kovler;Christos Rozakis;Dean Spielmann;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens

The applicant was born in DATE and lived until his arrest in GPE - on - Don . He is now serving his sentence in a correctional colony in the town of GPE .

On DATE two police officers accompanied by a person in civilian clothes approached the applicant at a bus stop . According to the applicant , the civilian punched him and the police officers held his hands behind his back in an armlock , hit him with a rubber truncheon on his head and back , body searched him and pushed him into a police car . They took the applicant to the LOC police station . The applicant submitted that the beatings had continued at the station with a view to forcing him to confess to a theft .

The Government , relying on similar written statements made on CARDINAL and CARDINAL DATE by police officers GPE and ORG . and a written statement drawn up by the applicant ’s co - defendant , PERSON , disputed the applicant ’s description of events . They alleged that on DATE he had been arrested on suspicion of having robbed truck drivers and had been taken to a police station . The relevant part of the statements read as follows :

“ On DATE , after TIME , on an order of an officer on duty , I drove to the following address : ... due to a call about a robbery in progress . As a result of the operation , data was gathered , GPE statements and explanations were recorded , and a certain police officer arrested Mr GPE and PERSON on suspicion of the crime and brought [ them ] to the police station . At present , due to the remoteness of the events , I can not recall whether I questioned them and what they stated . I would like to add that on DATE , at TIME , my shift ended and I left the police station . I took no further part in that police case . I strongly object to Mr GPE ’s statements that police officers injured him in the police station ; at present I can not recall whether Mr GPE raised any complaints about the actions of the police officers . ”

“ ... after that , police officers arrived at the [ bus ] stop and arrested certain participants in that brawl ; I was among them . After I had been taken to the LOC police station , PERSON - on - Don , the police officers informed me that I was suspected of having committed a robbery . Of course , I denied my guilt , stating that at night I was with my friends and that I had not committed any crime ... After that , the police officers placed Mr GPE , whom I did not know and who was also arrested by policemen on suspicion of the robbery , in my cell . I was not present when Mr GPE was searched . I would also like to note that the police officers did not beat Mr GPE in my presence ... As I am aware , on DATE Mr GPE complained that he did not feel well , due to which he was sent from the Proletarskiy ORG to a hospital . Subsequently , I saw Mr Nadrosov in a courtroom ... ”

On DATE an ambulance was called for the applicant . Emergency doctors drew up a report noting that he had an injury to the left kidney and a closed injury on the left side of the chest . The applicant was taken to a hospital .

At the hospital doctors again examined the applicant and diagnosed him with “ an injury to the lumbar region and a closed chest injury ” . The applicant explained that he had sustained the injuries when he had fallen from “ the height of his own stature ” on DATE . The medical report issued in the hospital also indicated that the applicant had had numerous subdermal haematomas measuring QUANTITY in diameter in the left subcostal area .

On DATE the applicant underwent a laparocentesis , a surgical puncture to diagnose injuries to and remove fluid from internal organs , as a result of which his diagnosis was confirmed .

On TIME the applicant was discharged from the hospital and taken back to the detention unit at the police station . On his admittance to the unit the applicant was examined and the following injuries were recorded on him : “ an injury to the soft tissues of the left side of the chest and stomach , an injury behind the right ear , an injury to the right leg ” .

On DATE the applicant ’s mother complained to ORG that the applicant had been severely beaten up by the police . She also alleged that her requests for a forensic medical examination of the applicant had been futile . She applied for an examination which would establish the nature and cause of the applicant ’s injuries .

On DATE an assistant of ORG issued a decision not to institute criminal proceedings in connection with the applicant ’s claim of ill - treatment . The reasoning of the CARDINAL - page decision , in full , read as follows :

“ According to explanations by PERSON . , on DATE he was an investigator on duty in the police department . On an order of the head of the task unit of ORG of GPE - on - Don , he received materials of a case pertaining to a robbery of truck drivers ... The materials contained information requiring institution of criminal proceedings under LAW of LAW of GPE . He instituted criminal proceedings and began the pre - trial investigation . Mr GPE ... was among the suspects .

[ Mr Ya . ] drew up an arrest record in respect of Mr Nadrosov at TIME , when he was brought to his office . Before that [ Mr Ya . ] performed other investigating actions , such as questioning victims . Mr GPE committed the crime on DATE , thus his arrest was carried out in timely fashion .

He questioned Mr Nadrosov as a suspect and as an accused . During all their interviews the investigator used no physical or psychological pressure . Mr GPE testified willingly . [ Mr GPE ] did not make any complaints or requests in the course of the interviews . [ Mr Ya . ] did not see injuries on him . [ Mr Ya . ] did not see the police officers beat [ Mr GPE ] up . Nor did [ Mr GPE ] make any requests when he was served with the bill of indictment . Moreover , during the robbery Mr GPE had had a fight with the truck drivers , who had actively defended themselves , and he could have sustained injuries then .

No physical or moral pressure was applied to Mr GPE during the pre - trial investigation . His guilt was completely proven .

A policeman , PERSON , also totally denied that he had used any physical or psychological pressure on Mr GPE .

In connection with the above - mentioned , there is no objective evidence , save for ... a complaint about Mr GPE ’s beatings . The actions of the police officers of the Proletarskiy ORG do not contain any elements of a crime as prescribed by Articles CARDINAL , FAC of LAW of GPE . ”

On DATE the assistant prosecutor sent a letter to the applicant ’s mother informing her that her request for institution of criminal proceedings against the police officers had been refused . He also noted that the decision could be appealed against to a higher - ranking prosecutor .

On an unspecified date the applicant ’s mother complained to the PERSON - on - Don Town Prosecutor that the applicant had been ill - treated and about the refusal to institute criminal proceedings against the police officers . She once again asked for a forensic medical examination of the applicant . According to the applicant , no response followed .

The applicant was committed to stand trial before the Proletarskiy District Court of Rostov - on - Don .

The applicant ’s lawyer complained to ORG that the police officers had severely beaten the applicant up and asked it to examine the applicant ’s medical records . He insisted that the statement which the applicant had originally made to the police about the nature of his injuries had been given in fear of reprisals and did not reflect the truth of what had happened to him .

On DATE the ORG of PERSON - on - Don found the applicant guilty of aggravated robbery and sentenced him to CARDINAL years’ imprisonment . As to the applicant ’s ill - treatment complaint , ORG refused to call for or examine medical documents pertaining to the applicant ’s beatings . However , it heard the truck drivers , an emergency doctor who had been called to the applicant on DATE , and the police officer who had investigated the applicant ’s criminal case . The truck drivers confirmed that they had been attacked by several men , including the applicant , but they did not recall hitting the applicant in defence . The emergency doctor stated that she had been called to the applicant who had been complaining of severe pain in the back as a result of a fall from a bench . She had examined the applicant and had not discovered any visible injuries . The applicant had not complained to her of beatings by the police . The investigator testified that the applicant had complained of ill - treatment by the police and that she had examined “ necessary documents ” pertaining to his complaint . Relying on the ORG testimony , ORG dismissed the applicant ’s complaint of beatings as unfounded .

The applicant appealed against the judgment . In his statement of appeal he alleged , inter alia , that he had been severely beaten up by the police officers . He also complained that ORG had refused to examine the medical evidence corroborating his allegations of ill - treatment .

On DATE the Rostov ORG upheld the conviction , endorsing the reasons given by ORG . ORG also found that the applicant ’s allegations of ill - treatment were “ not convincing ” because they had been refuted by the statements of the emergency doctor and the fact that the applicant had initially stated that he had sustained an injury as a result of DATE from a height .

The RSFSR Code of Criminal Procedure ( in force until DATE , “ the CCrP ” ) established that a criminal investigation could be initiated by an investigator upon the complaint of an individual or on the investigative authorities’ own initiative when there were reasons to believe that a crime had been committed ( Articles CARDINAL and CARDINAL ) . A prosecutor was responsible for general supervision of the investigation ( ORG CARDINAL and CARDINAL ) . He could order a specific investigative action , transfer the case from CARDINAL investigator to another or order an additional investigation . If there were no grounds to initiate a criminal investigation , the prosecutor or investigator issued a reasoned decision to that effect which had to be notified to the interested party .


Violation of P4-2;Pecuniary damage - claim dismissed;Non-pecuniary damage - award

Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva

The applicant was born in DATE and lives in GPE . He is a graduate in international economic relations .

On DATE the ORG , acting on a claim by a company ORG , issued an enforcement order against the applicant on the basis of a promissory note . The debt amounted to MONEY ( ORG ) ( or MONEY ( ORG ) ) , plus statutory interest . The costs of the proceedings amounted to ORG CARDINAL ( about EUR CARDINAL ) .

On DATE company ORG contacted the bailiffs’ service , requesting that the applicant be subjected to an order prohibiting him from leaving the territory .

On DATE the bailiffs’ service suggested to the director of ORG ( “ the director ” ) that the applicant ’s passport be withdrawn . That request was based on section CARDINAL ( CARDINAL ) of ORG DATE ( see paragraphs CARDINAL to CARDINAL below ) , which provided for the possibility of prohibiting natural persons who had debts towards other natural or legal persons amounting to more than ORG CARDINAL ( about EUR CARDINAL ) from leaving the territory .

On DATE the applicant was invited to submit evidence that he had provided security to his creditor .

By a decision of DATE , the director , referring to section CARDINAL ( CARDINAL ) of ORG DATE and the request by the bailiffs’ service , imposed the proposed measure for an indefinite period . He ordered that the applicant ’s passport be withdrawn and instructed the relevant authorities not to issue him with a new passport .

The applicant brought an application for judicial review , arguing that the domestic legislation allowed for the imposition of those measures only where the existence of the debt had previously been recognised by a judicial decision that had become final . He submitted that , since his debt arose from a promissory note , that condition had not been met in his case .

On DATE , following a request submitted by the applicant , the director contacted the bailiffs’ service , requesting its opinion on the appropriateness of lifting the prohibition on leaving the territory , and indicated that the applicant had submitted evidence that he had provided security to his creditor . By a letter of DATE , the bailiffs’ service replied that the applicant had not paid his debts , that he had not provided security and that it was therefore appropriate to continue to apply the measure in question .

By a judgment of CARDINAL DATE ORG dismissed the applicant ’s complaint . The court held that a enforcement order issued by a court represented sufficient judicial recognition of the debt in question . It further noted that the applicant had not provided a security to his creditor , that he did not possess assets of a value equivalent to the amount of his debt and that he had not submitted evidence concerning a possible termination of the enforcement proceedings .

The applicant appealed on points of law .

By a judgment of DATE , a CARDINAL - judge bench of ORG dismissed the appeal and endorsed the reasoning given by the lower court .

On DATE the bailiffs’ service suggested to the director that the decision of DATE be revoked on the ground that the enforcement proceedings had been closed , given that the creditor had not requested new execution measures over a period of DATE .

The decision in question was revoked on DATE .

On DATE ORG , acting on a claim by a company B. , issued an enforcement order against the applicant on the basis of another promissory note . This debt amounted to ORG ( about LAW ) .

By a request of DATE , company B. called for the imposition of a measure prohibiting the applicant from leaving the territory . Its representative argued that the applicant had disposed of some of his property that was under attachment , namely vehicles . He noted that company B. had succeeded in attaching real estate belonging to the applicant , but that its value was considerably lower than the sum owed .

On DATE the bailiffs’ service , on instructions from company B. , requested the imposition of an order prohibiting [ the applicant ] from leaving the territory under section CARDINAL ( CARDINAL ) of ORG DATE . On DATE the amount of default interest due was ORG CARDINAL ( about EUR CARDINAL ) .

By a letter of DATE , the applicant was informed of the director ’s intention to apply the requested measure . He was invited to submit evidence that he had provided security to his creditor .

By a decision of CARDINAL DATE , the director , again referring to section CARDINAL ( CARDINAL ) of ORG DATE and to the proposal by the bailiffs’ service , ordered that the applicant ’s passport be withdrawn and instructed the relevant bodies not to issue him with a new passport for an indefinite period .

The applicant brought an application for judicial review . He claimed that the order prohibiting him from leaving the territory had no legal basis , that he had intended to effect a set - off using a debt owed by company PERSON , that he had provided security and that he had reimbursed part of his debt .

By a judgment of DATE , ORG dismissed the applicant ’s application . The court held that the judicial recognition of a debt within the meaning of section DATE ( CARDINAL ) of ORG DATE could arise from a judicial decision that was not res judicata , such as the decision to issue an enforcement order . The other arguments raised by the applicant were dismissed as unsubstantiated or of minor relevance .

On DATE a CARDINAL - judge bench of ORG upheld the contested decision .

It was common ground between the parties that the applicant had been free to leave the national territory since DATE .

The applicant ’s daughters , GPE and GPE , were born in DATE and DATE respectively .

On DATE the ORG granted a divorce to the applicant and PERSON , the mother of his children . A residence order in respect of the QUANTITY girls was given in favour of LOC The applicant was given contact rights , amounting to CARDINAL weekends per month and CARDINAL DATE periods during DATE .

S.G. subsequently settled in GPE with the CARDINAL children . Since DATE , GPE and ORG have lived permanently in the GPE , where they are being educated .

On DATE the applicant created , in GPE , a branch of the limited liability company “ GPE ” OOD , of which he was an associate . He indicated that in DATE the NORP market had stabilised and had opened up to NORP products . The prohibition on leaving NORP territory had prevented him from developing his commercial activity in GPE , as it had obliged him to remain permanently in GPE .

On DATE the applicant , representative and only associate of the limited liability company “ ORG ” ORG , signed a contract for the sale of NORP cosmetics and cleaning products with a NORP company . This contract was worth MONEY ( ORG ) and was valid until DATE . Among the terms and conditions , a clause specified that the applicant was to have the products approved by the NORP authorities .

On DATE the purchaser and the applicant signed an amendment to the contract , concerning the shipment of products with a value of ORG CARDINAL,CARDINAL.CARDINAL . As the applicant could not travel to GPE in order to obtain approval for the goods , he subsequently withdrew . The reasons for his withdrawal were considered as a case of force majeure by the other party to the contract , and the applicant was not required to pay penalties . As the prohibition on leaving the territory was maintained until DATE of validity of the contract , it was not performed . The applicant indicated that he had expected to earn PERCENT of the value of the orders placed .

The Bulgarian Identity Documents Act DATE ( ORG за българските документи за самоличност – “ the DATE LAW ) , which entered into force on DATE , provides that the relevant bodies of ORG may impose a prohibition on leaving the territory on an individual who has debt “ established by judicial means ” amounting to more than BGN CARDINAL ( about EUR CARDINAL ) towards other physical or legal persons ( section DATE ( CARDINAL ) taken together with paragraph CARDINAL ( CARDINAL ) of the supplementary provisions to LAW ) . In addition , at the material time , the LAW provided for CARDINAL other measures , namely the withdrawal of passports and the refusal to issue a passport to a debtor .

These preventive measures can not be imposed if the debtor has provided security to his or her creditor or if he or she possesses assets of sufficient value to be used as reimbursement of the debts ( section DATE ( CARDINAL ) ) .

ORG considers that the instruction by which a court issues an enforcement order on the basis of a promissory note constitutes judicial recognition of the debt within the meaning of the DATE Act ( see , inter alia , Decision no . DATE of DATE in case no . CARDINAL , and Decision no . CARDINAL of DATE in case no . DATE , ORG № DATE от CARDINAL г. по адм. д. № CARDINAL г. , ORG № CARDINAL от CARDINAL.CARDINAL.CARDINAL г. по адм. дело № DATE г. ) .

Furthermore , ORG considers that the administrative body which imposes a prohibition on leaving the territory has discretionary power with regard to the appropriateness of that measure ( see Decision no . DATE of DATE in case no . CARDINAL , and Decision no . DATE of CARDINAL DATE in case no . CARDINAL/CARDINAL , ORG № DATE от CARDINAL г. по адм ORG № DATE г. , ORG № DATE от CARDINAL.CARDINAL.CARDINAL г. по адм. д. № CARDINAL/CARDINAL г. ) . Thus , courts were required merely to verify that the legal conditions set out in the CARDINAL Act had been fulfilled .

The liability of the maker of a promissory note lapses by limitation DATE from the date on which it is payable ( section CARDINAL of LAW ) . The limitation period is interrupted if enforcement proceedings are brought , and the interruption causes a new limitation period to begin to run ( sections FAC and CARDINAL of ORG ) .

If in the course of DATE the creditor does not request new execution measures , the enforcement proceedings must be closed ( Article CARDINAL of the DATE Code of Civil Procedure ) . This provision was reproduced in similar terms in LAW , in force since DATE .

NORP The applicant alleged that there had been a violation of his right to leave the country , guaranteed by LAW No . CARDINAL to the LAW . This LAW provides :

“ CARDINAL . Everyone lawfully within the territory of a ORG shall , within that territory , have the right to liberty of movement and freedom to choose his residence .

Everyone shall be free to leave any country , including his own .

No restrictions shall be placed on the exercise of these rights other than such as are in accordance with law and are necessary in a NORP society in the interests of national security or public safety , for the maintenance of ordre public , for the prevention of crime , for the protection of health or morals , or for the protection of the rights and freedoms of others .

The rights set forth in paragraph CARDINAL may also be subject , in particular areas , to restrictions imposed in accordance with law and justified by the public interest in a democratic society . ”

The ORG notes that the application is not manifestly ill - founded within the meaning of LAW of the Convention . It further notes that no other ground for declaring it inadmissible has been established . It must therefore be declared admissible .

The applicant considered that the preventive measures envisaged in the DATE Act were inapplicable in his case . He considered that the domestic courts had incorrectly applied the relevant legal provisions , given that the existence of his debts had not been recognised by decisions that were res judicata . In particular , he alleged that an enforcement order issued on the basis of a promissory note could not be equated with a document entailing judicial recognition of his debts . Accordingly , he considered that his debts had not been “ established by judicial means ” . The applicant concluded that the measure taken against him had not been “ in accordance with law ” .

The Government submitted that the prohibition on leaving the territory had been imposed in compliance with the legislation in force , that it pursued the protection of the rights of others and that it had been necessary in order to ensure that that objective was met .

The ORG reiterates that LAW No . CARDINAL to the ORG guarantees to any person a right to liberty of movement , including the right to leave any country for such other country of the person ’s choice to which he or she may be admitted . Any measure restricting that right must be lawful , pursue CARDINAL of the legitimate aims referred to in the third paragraph of the above - mentioned LAW provision and strike a fair balance between the public interest and the individual ’s rights ( see PERSON v. GPE , no . CARDINAL , § MONEY , ORG , and PERSON v. GPE , no . CARDINAL , § CARDINAL , CARDINAL DATE ) .

The ORG observes that in this case it was not disputed that there had been interference with the rights conferred on the applicant by LAW .

With regard to the lawfulness of the measure , the ORG reiterates its settled case - law according to which the expression “ in accordance with law ” not only requires that the impugned measure should have some basis in domestic law , but also refers to the quality of the law in question , requiring that it should be accessible to the person concerned and foreseeable as to its effects ( see PERSON GPE [ ORG ] , no . CARDINAL , § DATE , ORG CARDINAL-V ) . In order for the law to meet the criterion of foreseeability , it must set forth with sufficient precision the conditions in which a measure may be applied , to enable the persons concerned – if need be , with appropriate advice - to regulate their conduct .

The ORG observes that the expression “ established by judicial means ” could have given rise to various interpretations at the time the CARDINAL Act was enacted . In so far as the applicant complains of the lack of precision and foreseeability of section DATE ( CARDINAL ) of that LAW , the ORG reiterates that it is normally in the first place for the national authorities , notably the courts , to interpret and apply domestic law . It notes in the instant case that there exists a settled case - law of ORG on this provision . In those circumstances , the ORG considers that , even if it could have resulted in a certain degree of uncertainty at the time , the ambiguity referred to by the applicant can not in itself lead to the conclusion that the interference was unforeseeable to the extent that it was incompatible with the principle of lawfulness set out in LAW No . CARDINAL ( see PERSON , cited above , § CARDINAL , and , mutatis mutandis , ORG v. GPE [ ORG ] , no . CARDINAL , § CARDINAL , ORG CARDINALI ) . Moreover , the existence of the debt as established by a promissory note could be challenged before the courts .

The ORG also considers that the imposition of a measure such as that in the instant case was intended to guarantee the interests of creditors and that in principle it pursued a legitimate aim , namely the protection of the rights of others .

With regard to the proportionality of a restriction imposed on account of unpaid debts , the ORG reiterates that it is justified only so long as it furthered the pursued aim of guaranteeing recovery of the debts in question ( see GPE v. GPE , no . CARDINAL/CARDINAL , § § CARDINAL to CARDINAL , CARDINAL DATE ) . Furthermore , even were it justified at the outset , a measure restricting an individual ’s freedom of movement may become disproportionate and breach that individual ’s rights if it is automatically extended over DATE ( see GPE v. GPE , no . CARDINAL , § CARDINAL , ORG CARDINAL-IX ; PERSON and PERSON v. GPE , no . CARDINAL , § DATE ... ; and PERSON , cited above , LAW ) .

In any event , the domestic authorities are under an obligation to ensure that a breach of an individual ’s right to leave his or her country is , from the outset and throughout its duration , justified and proportionate in view of the circumstances . They may not extend for long periods measures restricting an individual ’s freedom of movement without regular reexamination of their justification ( see PERSON , cited above , § CARDINAL , and PERSON and PERSON , cited above , § MONEY ) . Such review should normally be carried out , at least in the final instance , by the courts , since they offer the best guarantees of the independence , impartiality and lawfulness of the procedures ( see PERSON , no . CARDINAL/CARDINAL , § DATE , DATE ) . The scope of the judicial review should enable the court to take account of all the factors involved , including those concerning the proportionality of the restrictive measure ( see , mutatis mutandis , ORG , PERSON and ORG v. GPE , DATE , § DATE , Series A no . CARDINAL ) .

Turning to the circumstances of the present case , the ORG notes that the applicant was prohibited from leaving the territory for the first time on DATE . That measure was lifted on CARDINAL DATE . It therefore remained in force for DATE and DATE .

The ORG observes that the parties have not submitted detailed information on the conduct of the enforcement proceedings which were used to justify the restriction on the applicant ’s freedom of movement . It is consequently impossible to assess whether or not the steps taken by the authorities and creditors to recover the debts were sufficient , or to evaluate the applicant ’s capacity to pay the amounts due to his creditors . Nor were those circumstances discussed in the decisions and judgments of the domestic authorities . The director explained his decisions by the existence of a request from the bailiffs’ service , while the domestic courts merely noted in their judgments that the applicant did not possess assets of a value equal to the amount of his debt and that he had not provided security to his creditors . Accordingly , the ORG is unable to rule on whether the imposition and maintenance of this restriction over a considerable period was objectively justified by the aim of guaranteeing recovery of the debts .

On the other hand , the ORG considers that the facts of the case suggest that the applicant was subjected , from the outset , to a measure of an automatic nature . The measure in question was imposed by the director without a request for explanations by the applicant concerning his personal situation or even about the circumstances surrounding the non - payment of his debts , and without these issues being examined in his decision . While it is true that the effectiveness of a preventive measure frequently depends on the speed of its implementation , this does not dispense the relevant domestic body from an obligation to gather the relevant information once the measure has been imposed . In the instant case , the applicant was merely invited to indicate , before the director issued his decisions , whether he had provided security to his creditors . Thus , the ORG is of the opinion that the administrative body did not take account of all the relevant information in order to ensure that the restriction on the applicant’

The ORG further notes that the director ’s decisions to impose a prohibition on leaving the territory were examined by ORG . In so far as that court held that it did not have jurisdiction to rule on the appropriateness of imposing such measures ( see paragraph CARDINAL above ) , the ORG considers that the scope of the judicial review also failed to satisfy the requirements of LAW No . CARDINAL ( see paragraph CARDINAL above ) .

As to whether the domestic authorities fulfilled their duty to re - examine regularly the measures restricting the applicant ’s freedom of movement , the ORG notes that no re - examination of the impugned measures was carried out following ORG confirmation of the decisions by the director of ORG ( see paragraphs CARDINAL and CARDINAL above ) .

Admittedly , the applicant has not specified whether he asked the director of ORG to lift the impugned measures after ORG had given its judgments . However , given that in reality it appears that he could obtain a lifting of the prohibition on leaving the territory only in the event of payment of the debts , presentation of a sufficient guarantee or , as was the case here , in the event of termination of the enforcement proceedings , the ORG considers that the applicant can not be criticised for failing to avail himself of that possibility .

In view of the foregoing considerations , the ORG considers that the applicant was subjected to measures of an automatic nature , with no limitation as to their scope or duration ( see PERSON , cited above , § CARDINAL ) . It concludes that the NORP authorities have failed in their obligation under LAW No . CARDINAL to the LAW to ensure that any interference with an individual ’s right to leave his or her country is , from the outset and throughout its duration , justified and proportionate in the light of the circumstances . In view of this conclusion , the ORG does not consider it necessary to address the issues of whether the application of a measure restricting the freedom to leave the country on account of debts owed to private persons can be justified by the high amount of the debts in question or by their particular importance for the creditor , as , for example , in the case of a maintenance order .

Accordingly , there has been a violation of the applicant ’s right to freedom of movement , guaranteed by LAW No . CARDINAL .

Article CARDINAL of the ORG provides :

“ If the ORG finds that there has been a violation of the Convention or the Protocols thereto , and if the internal law of the High Contracting Party concerned allows only partial reparation to be made , the ORG shall , if necessary , afford just satisfaction to the injured party . ”

The applicant claimed ORG CARDINAL,CARDINAL in respect of pecuniary damage , which he linked to loss of earnings arising from the prohibition on leaving the territory of GPE . He alleged that had the branch of his company “ NORP ” OOD been able to develop its commercial activity in GPE , it would have made a profit of ORG DATE , or LAW for the period covered by the prohibition . He also considered that the sales contract for cosmetics and cleaning products , signed in DATE , could have earned him ORG CARDINAL . Finally , he requested payment of interest on these amounts , at the statutory rate , to run from the date on which the application was lodged with the ORG .

The applicant also claimed ORG CARDINAL in respect of non - pecuniary damage . He argued that , on account of the prohibition on leaving the national territory , he had been unable to meet his daughters after their departure for GPE , in spite of the fact that he had extensive visitation rights . Finally , he alleged that he had been unable to exercise his profession and that his reputation had been tarnished among his trading partners abroad .

The Government considered that the applicant ’s claims were illfounded .

The ORG does not perceive a sufficient causal link between the violation found and the alleged pecuniary damage . In particular , it considers that the applicant has not submitted convincing evidence that his presence was essential for the performance of the contract signed in DATE . Furthermore , it notes that the finding of a violation of a breach of the ORG ’s duty to examine the proportionality of the measure restricting the applicant ’s freedom of movement does not amount to a finding that the measure lacked any justification . Accordingly , the ORG dismisses the claim concerning pecuniary damage . It considers , however , that it is appropriate to award the applicant LAW in respect of non - pecuniary damage .

The applicant claimed ORG CARDINAL for the costs and expenses incurred before the ORG , of which ORG CARDINAL were for lawyer ’s fees and LAW were for postage , translation and certification of a document . With regard to the remuneration of his lawyer , he also claimed the difference between the sum of ORG CARDINAL,CARDINAL and the equivalent of PERCENT of the amounts that would be awarded to him in respect of pecuniary and nonpecuniary damage . He submitted a fee agreement and invoices with regard to the other costs .

The Government considered these amounts excessive .

The ORG reiterates that an applicant may recover his costs and expenses only in so far as they have been actually and necessarily incurred and are reasonable as to quantum . In the instant case , having regard to the documents in its possession and the above - mentioned criteria , the ORG considers it reasonable to award the applicant the aggregate sum of ORG CARDINAL .

The ORG considers it appropriate that the default interest should be based on the marginal lending rate of ORG , to which should be added CARDINAL percentage points .


Preliminary objection rejected (estoppel);No violation of Art. 10;Violation of Art. 2 (failure to protect life);Violation of Art. 2 (inadequacy of investigation);Violation of Art. 13;Violation of Art. 3;Failure to comply with obligations under Art. 34;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

The applicant is a former teacher and former head of the ORG branch of ORG , PERSON . On CARDINAL DATE the applicant made a statement to the ORG Söz newspaper , giving an account of a meeting which had taken place on CARDINAL DATE between the applicant and a delegation of PERSON and the ORG Director . The applicant stated that the teachers were verbally abused , harassed and in some cases assaulted by the police . This account was published in an article titled “ CARDINAL teachers detained in GPE ” .

On DATE ORG decided , as a penalty for the statement made to the newspaper without permission , to suspend the promotion of the applicant to a higher grade of teacher for DATE , pursuant to section CARDINAL/D - g of Law no . CARDINAL , which prohibited civil servants from giving information or giving statements to the press , news agencies , radio or television without authorisation .

NORP The decision was confirmed by ORG on DATE . The court noted that LAW no . CARDINAL prohibited public officials from making announcements or statements relating to their public - sector work to the press and that only the officials authorised by the minister could do so . While all citizens had the right to express their thoughts and opinions within the framework of the rights under the LAW , not all citizens had the same opportunity to exercise this right to the same degree . As stated in a decision of DATE ( DATE ) of ORG , ORG officials were required to exercise their freedom of expression in a more measured manner and with more care in their statements relating to their superiors and public officials . In this case , when the applicant expressed her thoughts and the negative aspects observed by her in the continuing arguments between teachers and police officers , she was criticising and accusing the administration . Accordingly , there was no contravention of the legislation in the decision to impose a disciplinary sanction on the applicant for the actions which were contrary to the special requirements of her service . Her application to annul the decision was unanimously rejected .

The applicant appealed to ORG , which on DATE sent the case back to ORG to revise only the severity of the penalty . It agreed that civil servants had to exercise their freedom of expression with greater care and sensitivity when making announcements about their superiors and public duties . Since the applicant had criticised the administration , which was in breach of LAW , it was appropriate to impose a disciplinary sanction but , in order to achieve a fair balance between the offence and the sentence , a lighter sentence should have been imposed .

On DATE ORG maintained its decision and the penalty . The applicant appealed again to ORG .

On DATE ORG observed that the prohibition in section CARDINAL of Law no . CARDINAL related to ORG officials not being allowed to give statements to the press relating to their own powers , duties and responsibilities . The applicant had expounded her personal opinion on current issues not relating to her duty , exercising her right of expression and communication to others , within the framework of the freedom of thought and opinion guaranteed by LAW . Since this did not fall within the scope of the aforementioned section , there was no question of any disciplinary sanction being imposed . Accordingly , the procedure by which the applicant had been punished by the suspension of DATE promotion in application of section QUANTITY was unlawful and the decision of ORG was not correct . ORG decision was consequently annulled .

On DATE ORG adopted the reasoning of ORG and annulled the disciplinary sanction imposed on the applicant .

The applicant 's husband , PERSON , was of NORP origin and also a teacher involved in FAC trade union . On DATE , at TIME , PERSON was shot dead on his way to work at a primary school . PERSON , who was accompanying him , was also killed . No classic autopsy was carried out . CARDINAL gendarmes arrived at the scene of the incident , allegedly having been notified by radio . They made no attempt to discover in which direction the perpetrators had fled . They took CARDINAL statement , from ORG , who had helped place PERSON body in a taxi to be taken to hospital . This was notwithstanding the crowd that had gathered at the scene according to ORG statement .

Prior to her husband 's killing , and following the incident at ORG , the applicant had received several threats over the telephone and had been harassed by the security forces . In the telephone calls , she was told : “ It is your turn , we are going to kill you too . ” She reported the threats to the public prosecutor but her complaints were ignored . Her husband had been detained by the police on several occasions prior to his death . When she was detained in DATE , the applicant claimed that members of the security forces told her that they had killed her husband .

NORP The public prosecutor opened a file ( no . CARDINAL/CARDINAL ) into the killing , classifying it as an “ unknown perpetrator ” killing . On DATE the prosecutor issued an indictment against PERSON , a student , for involvement in CARDINAL murders and a number of assaults . These included the killing of PERSON , but not that of PERSON . PERSON was alleged to have carried out activities for ORG . In his statement of DATE , PERSON told the public prosecutor that he was not a member of ORG and that the CARDINAL-page statement signed by him at the headquarters of the anti - terrorism branch of ORG had been obtained through torture and that he refuted its contents .

On DATE PERSON maintained his denials before ORG no . CARDINAL . On DATE evidence was received from CARDINAL of the victims of the assaults listed in the indictment that they did not recognise any of the defendants . On DATE the court ordered the release of PERSON , due to the lack of any evidence justifying his continued detention .

On DATE the court acquitted PERSON for lack of sufficient evidence to prove any of the charges .

The facts of this part of the case , in particular the events during the detention of the applicant , were disputed by the parties .

The ORG took oral evidence in respect of the applicant 's allegations of torture during police custody from CARDINAL to CARDINAL DATE and interference with the right of individual petition arising out of CARDINAL periods of detention DATE , CARDINAL to CARDINAL DATE and DATE . Commission delegates heard evidence from the applicant , her mother , PERSON ( head of the anti - terrorism branch at ORG ) , PERSON and PERSON ( officers from the anti - terrorism branch who interrogated the applicant during DATE ) , PERSON ( the doctor who signed the medical report on the applicant 's release from custody ) and Enver Atlı ( a former headmaster taken into custody with the applicant on DATE ) . The public prosecutor who had seen the applicant prior to her release on CARDINAL DATE had been called as a witness , but he died before the hearing took place .

On DATE , shortly after TIME , police officers came to the applicant 's home and carried out a search . The officers took the applicant away , with her anorak pulled over her head . After a visit to a doctor , she was taken to ORG , where she was held in custody at the headquarters of the anti - terrorism branch until her release on CARDINAL DATE .

During DATE in custody , the applicant was subjected to various forms of ill - treatment , including sexual abuse and psychological pressure . She was interrogated by police officers , who accused her of being involved with the ORG ( ORG of Kurdistan ) and questioned her about imminent elections and whether she was a candidate . She was also asked about her application to the Commission and told that this was the same as joining the ORG in the mountains . She thought she saw a piece of paper , which was her letter of authority sent to PERSON – a lawyer practising in GPE , who has been involved in many cases brought against GPE – with her application .

NORP Over the period of her detention , the applicant was exposed to the following treatment . She was generally blindfolded when taken out of her cell ; she was stripped naked on numerous occasions and , on one occasion , forced to walk a gauntlet , naked , between officers who touched her and abused her verbally ; photographs were taken of her naked ; on many occasions she was taken to a room where she was doused in hot and cold water , the cold water being hosed on her with such force that she could hardly stand ; she was subjected to electric shocks on several occasions , a wire being attached to her toe and once to a nipple ; there was an attempt to suspend her by her arms from the ceiling , which ended when a scar on her stomach was noticed ; she was struck on the chin by a blow which knocked her to the ground ; her cell was floodlit and loud music was played ; she was handcuffed to a door for a period of DATE and DATE and forced to listen to the sounds of other persons being ill - treated ; her hair was pulled and she was hit , including a blow to her foot with a stick . She was told that her children had been brought into detention and were being tortured .

On DATE the applicant signed a statement drawn up by the police , stating that she was a member of the ORG and implicating her in various propaganda activities conducted by the ORG . The statement included the information that she had made an application to the ORG about her husband 's murder .

On DATE the applicant and CARDINAL other detainees were taken by police officers to the emergency ward of ORG , where PERSON signed a report stating that they had not suffered any physical blows . She described the examination as involving the doctor asking them collectively in the presence of the police if anyone had any complaints or wanted a medical examination . She stated that she requested a medical examination and showed him the injuries on her head and toe . The applicant was then taken before a public prosecutor . She told him that she had been ill - treated , showing him some of her injuries , and that she had signed a statement under pressure . He ordered her release .

DATE after her release , the applicant sought treatment . She had a terrible pain in her jaw . An ear - nose - throat specialist arranged for an X - ray but refused to sign a report when the applicant told him that she had been in custody . Another X - ray was taken and treatment given at the university clinic . The applicant believed that her jaw had been broken and submitted PERSON to ORG during her trial on charges relating to the ORG . These X - rays were later made available to ORG . It was agreed by the parties that they did not disclose any fracture .

Following this period of detention , the applicant had a number of problems with her health . She provided the Commission with information and prescriptions relating , inter alia , to eczema on her ear , a respiratory infection and pains in her leg . On DATE she went to ORG , in connection with the psychological problems she had been experiencing since this time . Her symptoms included loss of memory , trembling of the hands , indecision , pain and numbness in parts of her body and insomnia . A psychological examination had disclosed manifest anxiety , pessimism , inability to stand , slight impairment of attention and concentration and lack of self - confidence . Chronic post - traumatic stress disorder was diagnosed and medication ( an antidepressant ( fluoxetin ) and an anxiolitic ) was prescribed . The applicant returned for further consultations on DATE , and DATE and DATE . On the last occasion , her complaints had diminished considerably and she was advised to continue the medication for DATE .

In reaching its findings , the ORG accepted the evidence of the applicant , assessing her as a lucid and convincing witness who gave the impression of being honest and credible . Her evidence was supported by that of her mother who gave evidence as to the terrible state the applicant was in on her release from custody and by the report from ORG of ORG concerning her psychological symptoms . It found the evidence of the police officers to be evasive , inconsistent and unreliable . It also found that the evidence of PERSON was unreliable , observing that the examinations of detainees in the busy emergency ward appeared to be undertaken with reluctance and were carried out cursorily , without any concern for complaints about ill - treatment .

On DATE the applicant was apprehended by the police along with a friend and colleague , Enver Atlı . They were taken to a doctor and then to ORG , where she was stripped and searched . She was blindfolded and questioned about the ill - treatment she had been subjected to in DATE . It was mentioned that she had complained at the NORP level . She was left in a cell where it was extremely cold . Enver Atlı was also blindfolded during questioning by officers when he was asked about his relations with the applicant and whether she was a member of the ORG . They were released at TIME on DATE . The release record of that date indicated that they had both been detained for investigation about membership of and activities for the ORG but that the examination established that they were not involved .

The Government alleged that the applicant had been detained because of the forgery of a document . However , the ORG found that there was no evidence to support this assertion . There was insufficient material to support a conclusion that she was taken into custody because of her application to the ORG . It noted , however , the lack of any concrete elements to justify her detention in respect of allegations of ORG involvement , which gave the incident the appearance of a “ fishing expedition ” .

The applicant was summoned to give a statement to the public prosecutor . Although he did not wish to see her until DATE , police took her to ORG early in the morning on DATE . She remained sleeping on a sofa until a senior officer allowed her to go home in the afternoon . She returned at TIME with her mother on DATE . They were kept waiting in a locked room until the afternoon , when she was questioned by the prosecutor about a publication of ORG .

On DATE the ORG public prosecutor issued a decision of non - prosecution against CARDINAL officers , PERSON and PERSON , in respect of an allegation that the applicant had been tortured in custody and that her jaw had been broken . The decision referred to the defendants ' denial of the charges and to the doctor 's report that the applicant bore no signs of blows on her release . Due to the absence of evidence , it was decided not to pursue the investigation .

The Government have since provided further information . On CARDINAL DATE , in a decision of non - jurisdiction , the ORG public prosecutor referred to the allegations made by the applicant that she had been tortured during interrogation . As he had no jurisdiction , he transferred the case to ORG .

The contents of the investigation file concerning the death of the applicant 's husband were provided to the ORG . Further documents concerning the proceedings against PERSON were provided to the ORG .

The applicant lodged with the ORG a copy of the so - called GPE report , produced at the request of the Prime Minister by Mr Kutlu Savaş , Vice - President of ORG within ORG . After receiving the report in DATE , the Prime Minister made it available to the public , although CARDINAL pages and certain annexes were withheld .

The introduction states that the report was not based on a judicial investigation and did not constitute a formal investigative report . It was intended for information purposes and purported to do no more than describe certain events which had occurred mainly in south - east GPE and which tended to confirm the existence of unlawful dealings between political figures , government institutions and clandestine groups .

The report analyses a series of events , such as murders carried out under orders , the killings of well - known figures or supporters of the NORP and deliberate acts by a group of “ informants ” supposedly serving the ORG , and concludes that there is a connection between the fight to eradicate terrorism in the region and the underground relations that have been formed as a result , particularly in the drug - trafficking sphere . The report made reference to a certain PERSON , also known as PERSON or “ LOC ” , detailing his involvement in unlawful acts in the south - east and his links with MİT ( the NORP intelligence service ) :

“ ... Whilst the character of PERSON , and the fact that he along with the group of confessors [ ] he gathered around himself , is the perpetrator of offences such as extortion , seizure by force , assault on homes , rape , robbery , murder , torture , kidnapping , etc . , were known , it is more difficult to explain the collaboration of the public authorities with this individual . It is possible that a respected organisation such as ORG may use a lowly individual ... it is not an acceptable practice that ORG should have used LOC several times ... LOC , who carried out activities in GPE under the name of ORG , in GPE under the name of ORG and used the name PERSON , is an individual whose activities and presence were known both by the police and MİT ... As a result of the ORG 's silence the field is left open to the gangs ... [ p. CARDINAL ] .

... PERSON was also associated with GPE , an organisation within the gendarmerie , which used large numbers of protectors and confessors [ p. CARDINAL ] .

In his confession to ORG , ... PERSON ... had stated that PERSON [ ] [ p. CARDINAL ] would say from time to time that he had planned and procured the murder of PERSON [ ] and other partisans from the mafia and the ORG who had been killed in the same way ... The murder of ... PERSON [ ] had also been planned and carried out by PERSON [ p. CARDINAL ] .

All the relevant ORG bodies were aware of these activities and operations . ... When the characteristics of the individuals killed in the operations in question are examined , the difference between those NORP supporters who were killed in the region in which a state of emergency had been declared and those who were not lay in the financial strength the latter presented in economic terms . These factors also operated in the murder of PERSON , a smuggler and pro - ORG activist . They equally applied to PERSON , ORG and ORG . The sole disagreement we have with what was done relates to the form of the procedure and its results . It has been established that there was regret at the murder of PERSON , even among those who approved of all the incidents . It is said that PERSON was not involved in any armed action , that he was more concerned with the philosophy of the matter and that the effect created by his murder exceeded his own real influence and that the decision to murder him was a mistake . ( Information about these people is to be found in DATE [ ] ) . Other journalists have also been murdered [ p. CARDINAL ] [ ] . ”

NORP The report concludes with numerous recommendations , such as improving coordination and communication between the different branches of the security , police and intelligence departments ; identifying and dismissing security - force personnel implicated in illegal activities ; limiting the use of confessors ; reducing the number of village guards ; terminating the use of ORG outside the south - east region and incorporating it into the police outside that area ; opening investigations into various incidents ; taking steps to suppress gang and drug - smuggling activities ; and recommending that the results of ORG inquiry be forwarded to the appropriate authorities for the relevant proceedings to be undertaken .

The applicant provided this DATE report into extra - judicial or “ unknown perpetrator ” killings by a parliamentary investigation commission of ORG . The report referred to CARDINAL unsolved killings , of which CARDINAL involved journalists . It commented on the public lack of confidence in the authorities in the south - east region and referred to information that ORG had a camp in the Batman region where they received political and military training and assistance from the security forces . It concluded that there was a lack of accountability in the region and that some groups with official roles might be implicated in the killings .

The principles and procedures relating to liability for acts contrary to the law may be summarised as follows .

Under LAW all forms of homicide ( Articles DATE ) and attempted homicide ( Articles CARDINAL - CARDINAL ) constitute criminal offences . The authorities ' obligations in respect of conducting a preliminary investigation into acts or omissions capable of constituting such offences that have been brought to their attention are governed by ORG CARDINAL to CARDINAL of LAW . Offences may be reported to the authorities or the security forces as well as to public prosecutors ' offices . The complaint may be made in writing or orally . If it is made orally , the authority must make a record of it ( LAW .

If there is evidence to suggest that a death is not due to natural causes , members of the security forces who have been informed of that fact are required to advise the public prosecutor or a criminal court judge ( Article CARDINAL ) . By Article CARDINAL of LAW , any public official who fails to report to the police or a public prosecutor 's office an offence of which he has become aware in the exercise of his duties is liable to imprisonment .

A public prosecutor who is informed by any means whatsoever of a situation that gives rise to the suspicion that an offence has been committed is obliged to investigate the facts in order to decide whether or not there should be a prosecution ( LAW ) .

In the case of alleged terrorist offences , the public prosecutor is deprived of jurisdiction in favour of a separate system of national security prosecutors and courts established throughout GPE .

If the suspected offender is a civil servant and if the offence was committed during the performance of his duties , the preliminary investigation of the case is governed by the Law of DATE on the prosecution of civil servants , which restricts the public prosecutor 's jurisdiction ratione personae at that stage of the proceedings . In such cases it is for the relevant local administrative council ( for the district or province , depending on the suspect 's status ) to conduct the preliminary investigation and , consequently , to decide whether to prosecute . Once a decision to prosecute has been taken , it is for the public prosecutor to investigate the case .

An appeal to ORG lies against a decision of the council . If a decision not to prosecute is taken , the case is automatically referred to that court .

By virtue of DATE , paragraph ( i ) , of Decree no . CARDINAL of DATE on the authority of the governor of a state of emergency region , the DATE PERSON ( see paragraph CARDINAL above ) also applies to members of the security forces who come under the governor 's authority .

If the suspect is a member of the armed forces , the applicable law is determined by the nature of the offence . Thus , if it is a “ military offence ” under LAW ( Law no . CARDINAL ) , the criminal proceedings are in principle conducted in accordance with PERSON no . CARDINAL on the establishment of courts martial and their rules of procedure . Where a member of the armed forces has been accused of an ordinary offence , it is normally the provisions of LAW which apply ( see LAW and sections LAW no . CARDINAL ) .

The Military Criminal Code makes it a military offence for a member of the armed forces to endanger a person 's life by disobeying an order ( LAW ) . In such cases civilian complainants may lodge their complaints with the authorities referred to in LAW ( see paragraph CARDINAL above ) or with the offender 's superior .

Under LAW of PERSON no . CARDINAL on administrative procedure , anyone who sustains damage as a result of an act by the authorities may , within DATE after the alleged act was committed , claim compensation from them . If the claim is rejected in whole or in part or if no reply is received within DATE , the victim may bring administrative proceedings .

Article CARDINAL § § CARDINAL and CARDINAL of the LAW provides :

“ All acts or decisions of the authorities are subject to judicial review ...

The authorities shall be liable to make reparation for all damage caused by their acts or measures . ”

That provision establishes the ORG 's strict liability , which comes into play if it is shown that in the circumstances of a particular case the ORG has failed in its obligation to maintain public order , ensure public safety or protect people 's lives or property , without it being necessary to show a tortious act attributable to the authorities . Under these rules , the authorities may therefore be held liable to compensate anyone who has sustained loss as a result of acts committed by unidentified persons .

DATE of Decree no . CARDINAL of DATE , the last sentence of which was inspired by the provision mentioned above ( see paragraph DATE ) , provides :

“ No criminal , financial or legal liability may be asserted against ... the governor of a state of emergency region or by provincial governors in that region in respect of decisions taken , or acts performed , by them in the exercise of the powers conferred on them by this decree , and no application shall be made to any judicial authority to that end . This is without prejudice to the rights of individuals to claim reparation from the ORG for damage which they have been caused without justification . ”

Under LAW , anyone who suffers damage as a result of an illegal or tortious act may bring an action for damages ( Articles CARDINAL - CARDINAL ) and non - pecuniary loss ( Article CARDINAL ) . The civil courts are not bound by either the findings or the verdict of the criminal court on the issue of the defendant 's guilt ( Article CARDINAL ) .

However , under LAW no . CARDINAL on ORG employees , anyone who has sustained loss as a result of an act done in the performance of duties governed by public law may , in principle , only bring an action against the authority by whom the civil servant concerned is employed and not directly against the civil servant ( see LAW ) . That is not , however , an absolute rule . When an act is found to be illegal or tortious and , consequently , is no longer an “ administrative ” act or deed , the civil courts may allow a claim for damages to be made against the official concerned , without prejudice to the victim 's right to bring an action against the authority on the basis of its joint liability as the official 's employer ( LAW ) .

ORG for the Prevention of Torture ( CPT ) has carried out seven visits to GPE . The first CARDINAL visits , in DATE and DATE , were ad hoc visits considered necessary in light of the considerable number of reports received from a variety of sources , containing allegations of torture or other forms of ill - treatment of persons deprived of their liberty , in particular , those held in police custody . A third periodic visit took place at DATE . Further visits took place in DATE , DATE and DATE and DATE . The ORG 's reports on these visits , save that of DATE , have not been made public , such publication requiring the consent of the ORG concerned , which has not been forthcoming . The ORG has issued CARDINAL public statements concerning its visits to GPE .

In its public statement adopted on DATE , the ORG concluded that torture and other forms of severe ill - treatment were important characteristics of police custody . On its first visit in DATE , the following types of ill - treatment were constantly alleged , namely , “ NORP hanging ” , electric shocks , beating of the soles of the feet ( falaka ) , hosing with pressurised cold water and incarceration in very small , dark , unventilated cells . Its medical examinations disclosed clear medical signs consistent with very recent torture and other severe ill - treatment of both a physical and psychological nature . Specifically , it found that officers of the anti - terrorism branch of the GPE police frequently resorted to torture and/or other forms of severe ill - treatment , both physical and psychological .

On its second visit in DATE , it found no progress had been made in eliminating torture and ill - treatment by the police . Many persons complained of similar types of ill - treatment DATE an increasing number of allegations were heard of forcible penetration of bodily orifices with a stick or truncheon . Once again , a number of the persons making such claims were found on examination to display marks or conditions consistent with their allegations . Torture and other forms of severe ill - treatment continued unabated at the headquarters of the anti - terrorism branch of the LOC police . On its third visit , from DATE to DATE , the ORG delegation was inundated with allegations of torture and ill - treatment . Numerous persons examined by its doctors displayed marks or conditions consistent with their allegations . It listed a number of these cases . On this visit , the ORG had visited ORG , where a prisoner at FAC displayed haematomas on the soles of his feet and a series of vertical purple stripes ( QUANTITY long by QUANTITY wide ) across the upper part of his back , consistent with his allegation that he had recently been subjected to falaka and beaten on the back with a truncheon while in police custody . At the headquarters of GPE and ORG , it found equipment that could be used for torture and the presence of which had no other credible explanation . The ORG concluded in its statement that “ the practice of torture and other forms of severe ill - treatment of persons in police custody remains widespread in GPE ” .

In its second public statement , issued on DATE , the ORG noted that some progress had been made over DATE . However , its findings after its visit in DATE demonstrated that torture and other forms of ill - treatment were still important characteristics of police custody . In the course of visits in DATE , ORG delegations once again found clear evidence of the practice of torture and other forms of severe ill - treatment by the police . It referred to its most recent visit in DATE to police establishments in GPE , ORG and GPE , when it also went to CARDINAL prisons in order to interview certain persons who had very recently been in police custody in GPE and GPE . A considerable number of persons examined by the delegation 's forensic doctors displayed marks or conditions consistent with their allegations of recent ill - treatment by the police and , in particular , of beating of the soles of the feet , blows to the palms of the hands and suspension by the arms . It noted the cases of QUANTITY persons who had been very recently detained at the headquarters of the anti - terrorism branch of ORG and which ranked among the most flagrant examples of torture encountered by ORG delegations in GPE . They showed signs of prolonged suspension by the arms , with impairments in motor function and sensation which , in QUANTITY persons , who had lost the use of both arms , threatened to be irreversible . It concluded that resort to torture and other forms of severe ill - treatment remained a common occurrence in police establishments in GPE .

The ORG underlined the importance of the preventive role of doctors :

“ Particular reference should be made to the work of doctors appointed by the ORG to carry out forensic tasks , a matter to which the ORG has given considerable attention in the course of its dialogue with the NORP authorities . The present system of detained persons being routinely examined by a forensic doctor at the end of their period of police custody is , in principle , a significant safeguard against ill - treatment . However , certain conditions must be met : the forensic doctor must enjoy formal and de facto independence , have been provided with specialised training and been allocated a mandate which is sufficiently broad in scope . If these conditions are not met DATE as is frequently the case – the present system can have the perverse effect of rendering it all the more difficult to combat torture and ill - treatment .

A series of circulars have been issued by ORG on this subject ; in particular , a ORG of DATE subsequently endorsed in the Minister of the ORG 's instructions of DATE sets out the required contents of forensic certificates drawn up following the detention of persons detained by law enforcement agencies . Despite this , the great majority of forensic certificates seen by the ORG over DATE have not met the requirements of that circular .

Measures need to be taken to ensure that there is full compliance with all the above - mentioned circulars and , more generally , that doctors called upon to perform forensic tasks can carry out their work free from any interference . Further the necessary resources should be made available in order to allow the training programme for doctors called upon to perform forensic tasks – recently devised by ORG – to be implemented throughout GPE without delay . ”

The ORG again stressed the need for public prosecutors to react expeditiously and effectively when confronted by complaints of torture and ill - treatment and the need for the reduction of maximum periods of police custody .

The ORG repeated in this report , inter alia , its concerns about the forensic examination of persons in police custody , emphasising that examination of persons in custody by a doctor can be a significant safeguard against ill - treatment , provided the doctors concerned enjoy formal and de facto independence , have a mandate which is sufficiently broad in scope and have been provided with specialised training . It had found , however , that the standard forensic medical form set out in ORG circular of DATE was not used in many forensic services , the doctors recording their findings on a piece of paper devoid of headings , omitting to record the allegations of the detained person and failing to draw conclusions . It recalled that it had previously stressed that it was essential for forensic certificates drawn up after examination of a detained person to contain an account of the relevant statements of the detainee , an account of the objective medical findings based on a thorough medical examination and the doctor 's conclusions in light of those CARDINAL elements , which should include an assessment of the degree of consistency between any allegations made and the objective medical findings .

It expressed the hope that generalised use of the standard forensic medical form would put an end to the collective forensic examination of groups of detained persons , an undesirable practice of which it had found some evidence during its visit . It had also noted that certain forensic examinations were conducted in the presence of the police officers who had brought the detained person and that the doctor handed an open copy of the report to these police officers . It stressed that examinations should always be conducted out of the hearing range and out of sight of the police officers , unless the doctor requested otherwise in a particular case . It welcomed the steps taken to ensure that the forensic reports be forwarded in sealed envelopes to the public prosecutor and the head of the police department concerned .


Violation of Art. 8;Not necessary to examine Art. 12;Non-pecuniary damage - financial award;Costs and expenses partial award

Alvina Gyulumyan;András Baka;Antonella Mularoni;Christos Rozakis;Corneliu Bîrsan;Egbert Myjer;Françoise Tulkens;Giovanni Bonello;Ireneu Cabral Barreto;Isabelle Berro-Lefèvre;Javier Borrego Borrego;John Hedigan;Josep Casadevall;Karel Jungwiert;Khanlar Hajiyev;Lech Garlicki;Luzius Wildhaber;Nicolas Bratza;Peer Lorenzen;Rait Maruste;Snejana Botoucharova;Stanislav Pavlovschi

The applicants were born in DATE and DATE respectively . The first applicant is in prison and the second applicant lives in Hull .

In DATE the first applicant was convicted of murder ( kicking a drunken man to death ) and sentenced to life imprisonment with a tariff of DATE . His earliest expected release date is DATE . He has no children .

In DATE he met the second applicant , while she was also imprisoned , through a prison pen - pal network . She has since been released . In DATE the applicants married . The second applicant already had CARDINAL children from other relationships .

NORP Since the applicants wished to have a child , in DATE the first applicant applied for facilities for artificial insemination . In DATE the second applicant joined this application . They relied on the length of their relationship and the fact that , given the first applicant ’s earliest release date and the second applicant ’s age , it was unlikely that they would be able to have a child together without the use of artificial insemination facilities .

In a letter dated CARDINAL DATE the Secretary of ORG refused their application . He first set out his general policy ( “ the Policy ” ) :

“ Requests for artificial insemination by prisoners are carefully considered on individual merit and will only be granted in exceptional circumstances . In reaching decisions particular attention is given to the following general considerations :

– whether the provision of artificial insemination facilities is the only means by which conception is likely to occur

– whether the prisoner ’s expected day of release is neither so near that delay would not be excessive nor so distant that he / she would be unable to assume the responsibilities of a parent

– whether both parties want the procedure and the medical authorities both inside and outside the prison are satisfied that the couple are medically fit to proceed with artificial insemination

– whether the couple were in a well established and stable relationship prior to imprisonment which is likely to subsist after the prisoner ’s release

– whether there is any evidence to suggest that the couple ’s domestic circumstances and the arrangements for the welfare of the child are satisfactory , including the length of time for which the child might expect to be without a father or mother

– whether having regard to the prisoner ’s history , antecedents and other relevant factors there is evidence to suggest that it would not be in the public interest to provide artificial insemination facilities in a particular case . ”

He then gave his reasons for refusal in the present case :

“ ... the Home Secretary has had particular regard to the likely age of your wife at the time that you will become eligible for release . Your wife will be DATE at the earliest possible date of release and therefore the likelihood of her being able to conceive naturally is small . It is noted that PERSON has CARDINAL children from an earlier relationship . In the light of your wife ’s age , the Minister has looked with very great care at both you and your wife ’s circumstances , ...

The Minister has noted that you and your wife are in full agreement about your wish to conceive artificially . He also recognises the commitment which you and your wife have shown to one another . However , he notes that your relationship was established while you were in prison and has therefore yet to be tested in the normal environment of DATE life . A reasoned and objective assessment can not be made as to whether your relationship will subsist after your release .

Further he is concerned that there seems to be insufficient provision in place to provide independently for the material welfare of any child which may be conceived . In addition , there seems to be little in the way of an immediate support network in place for the mother and any child which may be conceived . It also remains a matter of deep concern that any child which might be conceived would be without the presence of a father for an important part of his or her childhood DATE .

While recognising the progress which you have made in addressing your offending behaviour , the constructive use that you have made of your time in prison in preparation for your release and your good prison behaviour , the Minister nevertheless notes the violent circumstances of the crime for which you were sentenced to life imprisonment . It is considered that there would be legitimate public concern that the punitive and deterrent elements of your sentence of imprisonment were being circumvented if you were allowed to father a child by artificial insemination while in prison . ”

The applicants sought leave to apply for judicial review of the Secretary of ORG ’s decision . On DATE the ORG refused leave on the papers . The applicants renewed their application and on DATE leave was again refused after an oral hearing . On DATE the applicants introduced an application to this ORG and it was declared inadmissible on DATE on the basis that they had failed to exhaust domestic remedies ( application no . CARDINAL ) . The applicants then applied to ORG for leave to appeal .

On DATE their application was unanimously rejected by ORG . ORG relied in principle on the judgment of ORG in R ( PERSON ) v. Secretary of ORG for ORG [ DATE ] CARDINAL WLR CARDINAL . He pointed to the similarity of the arguments put by the applicants in the present case and in the PERSON case . ORG relied on the conclusion of Lord PERSON , Master of the Rolls , in the PERSON case ( see paragraphs CARDINAL - CARDINAL below ) and commented :

“ ... Lord PERSON clearly had in mind , and he set it out in the course of his judgment , the provisions of LAW setting out various matters that may justify interference with the right to respect for private and family life , including the protection of health or morals and the protection of the rights and freedom of others . It seems to me that concern , not only for the public attitude to the exercise by prisoners of certain rights in prison which they would take for granted outside , and concern for the rights of a putative child in the upbringing it would receive depending on the circumstances and the length of the imprisonment involved , are highly relevant circumstances for the purposes of LAW

Accordingly , in my view , it is not open to [ the applicants ] to seek to re - open the validity of the Secretary of ORG ’s policy which this court has held in PERSON is rational and otherwise lawful . As Lord PERSON made clear in his judgment in that case , although the starting point of the policy is that deprivation of facilities for artificial insemination may prevent conception altogether , the finishing point is whether there are exceptional circumstances for not applying the policy ... ”

He then noted that on occasions the Secretary of ORG had “ dis - applied ” the Policy when the circumstances had merited it : he referred to a letter from the ORG Solicitor to the applicants which apparently demonstrated this fact and pointed out that counsel for the Secretary of ORG had informed the court that there had been other such instances .

Auld LJ then applied the Policy to the present case :

“ To the extent that [ the applicants have ] suggested that [ the ] Secretary of ORG has irrationally misapplied his own policy to the circumstances , or has otherwise acted disproportionately in applying it , I would reject the suggestion . There is no basis for saying that the Secretary of ORG ’s approach can be equated , as [ the applicants ] suggested , with the extinction of a fundamental right . It was a weighing of the starting point of the policy against the other considerations for which the policy itself provided , an exercise of discretion and proportionality in respect of which , in my view , the Secretary of ORG can not be faulted on the circumstances as presented to him . ”

The other judges also relied on the judgment in PERSON . PERSON said the following :

“ The case of PERSON is also clear authority that considerations and potential consequences of public interest over and above a narrow view of the requirements of good order and security in prison can play a role in a decision whether or not to permit such artificial insemination ... I note that , in addition to the NORP authorities specifically mentioned in paragraph CARDINAL by Lord PERSON , the Commission , in its decision in GPE v. the GPE [ no . CARDINAL/CARDINAL , ORG ’s report of CARDINAL DATE , PERSON , pp . DATE , § § DATE ] , also recognised the potential relevance of more general considerations of public interest . ”

On DATE the first applicant was transferred to the open side of another prison as a Category D prisoner . In principle , he was eligible for unescorted home leave after DATE should he retain his Category D status ( Rule CARDINAL of the Prison Rules DATE , as implemented by LAW “ Temporary Release for Life Sentence Prisoners ” – of Prison Service Order CARDINAL ) .

NORP The Secretary of ORG is empowered to make rules for the management of prisons by section CARDINAL of the Prison Act DATE , the relevant parts of which provide as follows :

“ The Secretary of ORG may make rules for the regulation and management of prisons ... and for the classification , treatment , employment , discipline and control of persons required to be detained therein ... ”

The relevant rules are the Prison Rules DATE ( SI DATE No . CARDINAL ) . Rule CARDINAL provides as follows :

“ Outside Contacts

( CARDINAL ) Special attention shall be paid to the maintenance of such relationships between a prisoner and his family as are desirable in the best interests of both .

( CARDINAL ) A prisoner shall be encouraged and assisted to establish and maintain such relations with persons and agencies outside prison as may , in the opinion of the governor , best promote the interests of his family and his own social rehabilitation . ”

The Policy was challenged by a Mr PERSON , a prisoner serving a life sentence for murder . He was DATE of age at the time his case came before ORG with a minimum of CARDINAL years’ imprisonment to serve . His wife was DATE . At his earliest release she would have been CARDINAL . He and his wife had been refused artificial insemination facilities : it was considered that there was nothing exceptional about their case .

They sought leave to apply for judicial review of the Policy itself , rather than its application to their case , arguing that it was an unjustified interference with their LAW . They distinguished the Policy from that concerning conjugal visits : the latter gave rise to pragmatic ( security ) concerns whereas artificial insemination did not . The government argued that the Policy was justified in that ( a ) it was an explicit consequence of imprisonment that prisoners should not have the opportunity to found a family ; ( b ) there would likely be serious and justified public concern if prisoners continued to have the opportunity to conceive children while in prison ; and ( c ) it was undesirable , as a general rule , for children to be brought up in single - parent families . ORG refused leave and the applicants appealed .

ORG ( Lord PERSON delivering the main judgment ) noted that the Secretary of ORG ’s decision pre - dated the incorporation of the Convention into LANGUAGE law and continued :

“ It is , however , his contention that NORP domestic law has at all times accorded with the LAW . Nor has he challenged the appellant ’s case that the requirements of the ORG provide a touchstone for judging the rationality of his decision and the policy pursuant to which it was reached . This is a sensible approach for what matters to the appellant is the extent of his rights DATE and the Secretary of ORG is also principally concerned with whether his policy complies with the provisions of the ORG , which now forms part of our law . In the light of this approach I propose first to consider the GPE jurisprudence , then the relevant NORP domestic law before turning to consider whether the decision of the Secretary of ORG is in conflict with either . ”

Having examined relevant Commission jurisprudence ( no . CARDINAL/CARDINAL , Commission decision of CARDINAL DATE , ORG and Reports ( DR ) CARDINAL , p. CARDINAL ; no . CARDINAL/CARDINAL , Commission decision of DATE , PERSON , p. CARDINAL ; PERSON v. GPE , no . DATE , ORG ’s report of CARDINAL DATE , PERSON , p. CARDINAL ; PERSON v. GPE , no . ORG report of DATE , PERSON , p. CARDINAL ; and E.L.H. and P.B.H. v. GPE , nos . CARDINAL and DATE , Commission decision of DATE , PERSON , p. CARDINAL ) , Lord PERSON summarised CARDINAL Convention principles he considered thereby established :

“ ( i ) The qualifications on the right to respect for family life that are recognised by Article PERSON ) apply equally to the LAW .

( ii ) Imprisonment is incompatible with the exercise of conjugal rights and consequently involves an interference with the right to respect for family life under LAW and with the right to found a family under LAW .

( iii ) This restriction is ordinarily justifiable under the provisions of Article PERSON ) .

( iv ) In exceptional circumstances it may be necessary to relax the imposition of detention in order to avoid a disproportionate interference with a human right .

( v ) There is no case which indicates that a prisoner is entitled to assert the right to found a family by the provision of semen for the purpose of artificially inseminating his wife . ”

Lord PERSON went on to approve the reasons given to justify the restriction of artificial insemination facilities to exceptional circumstances .

As to the first justification , he agreed that the deprivation of the right to conceive was part and parcel of imprisonment and , indeed , that that statement did no more than restate the Policy in that it indicated that it was a “ deliberate policy that the deprivation of liberty should ordinarily deprive the prisoner of the opportunity to beget children ” .

On the second justification , he considered that there would likely be serious and justified public concern if prisoners continued to have the opportunity to conceive children while in prison . Lord PERSON agreed that public perception was a legitimate element of penal policy :

“ GPE sanctions are imposed , in part , to exact retribution for wrongdoing . If there were no system of penal sanctions , members of the public would be likely to take the law into their own hands . In my judgment it is legitimate to have regard to public perception when considering the characteristics of a penal system . ... A policy which accorded to prisoners in general the right to beget children by artificial insemination would , I believe , raise difficult ethical questions and give rise to legitimate public concern . ... When considering the question of whether , in the ordinary course , prisoners should be accorded the facility to beget children while imprisoned I consider it legitimate to have regard to all the consequences of that particular policy option . ”

As regards the third justification which concerned the alleged disadvantage of single - parent families , he commented :

“ I consider it legitimate , and indeed desirable , that the ORG should consider the implications of children being brought up in those circumstances when deciding whether or not to have a general policy of facilitating the artificial insemination of the wives of prisoners or of wives who are themselves prisoners . ”

Lord PERSON then concluded :

“ For those reasons [ the ORG ] failed to make out [ the ] case that the [ Policy ] ... is irrational . [ The ORG ] accepted that there were in this case no exceptional circumstances , and [ they were ] right to do so . It follows that the question of whether each of the CARDINAL general considerations set out in [ the Secretary of ORG ’s ] letter is one to which it is rational to have regard , when looking for exceptional circumstances , does not arise . I would simply observe that it seems to me rational that the normal starting point should be a need to demonstrate that , if facilities for artificial insemination are not provided , the founding of a family may not merely be delayed , but prevented altogether .

For these reasons ... the refusal to permit the appellant the facilities to provide semen for the artificial insemination of his wife was neither in breach of the LAW , unlawful nor irrational . It follows that I would dismiss the appeal . ”

Responsibility for making artificial insemination arrangements is with the health - care department in the relevant prison in consultation with the local primary care trust . Since the level of health - care provision varies from prison to prison , it will therefore be a matter for local decision as to whether the collection of sperm would be overseen by staff at the prison or whether it would be necessary for an outside professional to attend for this purpose . The prisoner would be expected to meet any costs incurred .

Criminologists have referred to the various functions traditionally assigned to punishment , including retribution , prevention , protection of the public and rehabilitation . However , in DATE there has been a trend towards placing more emphasis on rehabilitation , as demonstrated notably by ORG legal instruments . While rehabilitation was recognised as a means of preventing recidivism , more recently and more positively it constitutes rather the idea of re - socialisation through the fostering of personal responsibility . This objective is reinforced by the development of the “ progression principle ” : in the course of serving a sentence , a prisoner should move progressively through the prison system thereby moving from DATE of a sentence , when the emphasis may be on punishment and retribution , to the latter stages , when the emphasis should be on preparation for release .

Article CARDINAL(CARDINAL ) of LAW ( “ the ORG ” ) provides that the “ penitentiary system shall comprise treatment of prisoners the essential aim of which shall be their reformation and social rehabilitation ” . The General Comment of ORG on Article CARDINAL further states that “ no penitentiary system should be only retributory ; it should essentially seek the reformation and social rehabilitation of the prisoner ” .

The United Nations Standard Minimum Rules for the Treatment of Prisoners ( DATE ) contains specific provisions on sentenced prisoners , including the following guiding principles :

“ CARDINAL . Imprisonment and other measures which result in cutting off an offender from the outside world are afflictive by the very fact of taking from the person the right of self - determination by depriving him of his liberty . Therefore the prison system shall not , except as incidental to justifiable segregation or the maintenance of discipline , aggravate the suffering inherent in such a situation .

The purpose and justification of a sentence of imprisonment or a similar measure deprivative of liberty is ultimately to protect society against crime . This end can only be achieved if the period of imprisonment is used to ensure , so far as possible , that upon his return to society the offender is not only willing but able to lead a law - abiding and self - supporting life .

To this end , the institution should utilise all the remedial , educational , moral , spiritual and other forces and forms of assistance which are appropriate and available , and should seek to apply them according to the individual treatment needs of the prisoners . ”

ORG are recommendations of ORG to member ORG as to the minimum standards to be applied in prisons . States are encouraged to be guided in legislation and policies by those rules and to ensure wide dissemination of the Rules to their judicial authorities as well as to prison staff and inmates .

The DATE version of ORG ( “ the DATE Rules ” ) notes , as its third basic principle , that :

“ The purposes of the treatment of persons in custody shall be such as to sustain their health and self - respect and , so far as the length of sentence permits , to develop their sense of responsibility and encourage those attitudes and skills that will assist them to return to society with the best chance of leading law - abiding and self - supporting lives after their release . ”

The latest version of those Rules adopted in DATE ( “ the CARDINAL Rules ” ) replaces this above - cited principle with CARDINAL principles :

“ Rule CARDINAL : Persons deprived of their liberty retain all rights that are not lawfully taken away by the decision sentencing them or remanding them in custody .

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

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

The commentary on the CARDINAL Rules ( prepared by ORG – “ the ORG ” ) noted that Rule CARDINAL emphasises that the loss of the right to liberty should not lead to an assumption that prisoners automatically lose other political , civil , social , economic and cultural rights : in fact restrictions should be as few as possible . Rule CARDINAL , the commentary observes , underlines the positive aspects of normalisation recognising that , while life in prison can never be the same as life in a free society , active steps should be taken to make conditions in prison as close to normal life as possible . The commentary further states that Rule CARDINAL “ recognises that prisoners , both untried and sentenced , will eventually return to the community and that prison life has to be organised with this in mind ” .

The first section of Part DATE is entitled “ Objective of the regime for sentenced prisoners ” and provides , inter alia :

“ CARDINAL.CARDINAL NORP In addition to the rules that apply to all prisoners , the regime for sentenced prisoners shall be designed to enable them to lead a responsible and crime - free life .

CARDINAL Imprisonment is by the deprivation of liberty a punishment in itself and therefore the regime for sentenced prisoners shall not aggravate the suffering inherent in imprisonment . ”

In these respects , the ORG commentary explains that Rule CARDINAL :

“ ... states the objectives of the regime for prisoners in simple , positive terms . The emphasis is on measures and programmes for sentenced prisoners that will encourage and develop individual responsibility rather than focussing narrowly on the prevention of recidivism . ...

The new Rule is in line with the requirements of key international instruments including LAW ORG ] , ... However , unlike the ORG , the formulation here deliberately avoids the use of the term , “ rehabilitation ” , which carries with it the connotation of forced treatment . Instead , it highlights the importance of providing sentenced prisoners , who often come from socially deprived backgrounds , the opportunity to develop in a way that will enable them to choose to lead law - abiding lives . In this regard Rule CARDINAL follows the same approach as Rule CARDINAL of ORG for the Treatment of Prisoners . ”

Rule CARDINAL of the CARDINAL Rules provides that a systematic programme of work shall seek to contribute to meeting the objective of the prison regime . Rule CARDINAL provides that a systematic programme of education , with the objective of improving ORG overall level of education , as well as the prospects of leading a responsible and crime - free life , shall be a key part of regimes for sentenced prisoners . Finally , Rule CARDINAL requires that the release of sentenced prisoners should be accompanied by special programmes enabling them to make the transition to a law - abiding life in the community .

The reason for the evolution towards the CARDINAL Rules can be understood through CARDINAL Committee of Ministers recommendations , both of which address the rehabilitative dimension of prison sentences .

The preamble to Recommendation ( CARDINAL)CARDINAL on the management by prison administrations of life - sentence and other long - term prisoners provides that :

“ ... the enforcement of custodial sentences requires striking a balance between the objectives of ensuring security , good order and discipline in penal institutions , on the one hand , and providing prisoners with decent living conditions , active regimes and constructive preparations for release , on the other ; ”

The aims of the management of long - term prisoners in paragraph CARDINAL of the Recommendation included the following :

“ – to ensure that prisons are safe and secure places for these prisoners ... ;

– to counteract the damaging effects of life and long - term imprisonment ;

– to increase and improve the possibilities of these prisoners to be successfully resettled and to lead a law - abiding life following their release . ”

The recommendation also outlined CARDINAL linked principles ( paragraphs CARDINAL ) for the management of long - term prisoners :

– account to be taken of the personal characteristics of prisoners ( individualisation principle ) ;

– prison life to be arranged so as to approximate as closely as possible to the realities of life in the community ( normalisation principle ) ;

– the opportunity to be accorded to exercise personal responsibility in DATE prison life ( responsibility principle ) ;

– a clear distinction should be made between the risks posed by life and long - term prisoners to themselves , to the external community , to other prisoners and to those working or visiting the prison ( security and safety principle ) ;

– prisoners should not be segregated on the basis of their sentence ( nonsegregation principle ) ; and

– the planning of an individual prisoner ’s long - term sentence should aim at securing progressive movement through the prison system ( progression principle ) .

The ORG also specifies ( at paragraph CARDINAL ) use of the progression principle to ensure progressive movement through the prison system “ from more to less restrictive conditions with , ideally , a final phase spent under open conditions , preferably in the community ” . There should also be participation in prison activities that “ increase the chances of a successful resettlement after release ” and conditions and supervision measures that are “ conducive to a law - abiding life and adjustment in the community after conditional release ” .

The second relevant ORG of ORG recommendation is Recommendation ( CARDINAL)CARDINAL on conditional release ( parole ) . The fifth paragraph of the preamble considers that “ research has shown that detention often has adverse effects and fails to rehabilitate offenders ” . The ORG outlines ( paragraph CARDINAL) the following measures to reduce recidivism , by the imposition of individualised conditions such as :

“ – the payment of compensation or the making of reparation to victims ;

– entering into treatment for drug or alcohol misuse or any other treatable condition manifestly associated with the commission of crime ;

– working or following some other approved occupational activity , for instance , education or vocational training ;

– participation in personal development programmes ; and

– a prohibition on residing in , or visiting , certain places . ”