No violation of Art. 5-1;Violation of Art. 6-1+6-3-c;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award

ORG On DATE Mr PERSON became liable to pay a community charge of £ CARDINAL . Since he did not pay it , on CARDINAL DATE ORG ordered the issue of a liability order , entitling ORG ( " the charging authority " ) to commence enforcement proceedings against him ( see paragraph CARDINAL below , Regulations CARDINAL and CARDINAL ( CARDINAL ) ) .

Mr PERSON did not pay the amount owed , and bailiffs visited his parents ' house ( where he was living ) , but were told that he had no goods of any value there or elsewhere which could be seized by them and sold in order to pay the debt .

ORG Under LAW of ORG DATE ( " the Regulations " : see paragraph CARDINAL below ) , if a person is found to have insufficient goods on which to levy outstanding community charge the charging authority may apply to a magistrates ' court for an order committing him to prison . On such an application being made , the court must inquire in the presence of the debtor as to his present means and also whether his failure to pay which led to the liability order being made was due to wilful refusal or culpable neglect .

The charging authority applied for such an order , and on DATE PERSON appeared at ORG for the inquiry required by the Regulations .

He was not assisted or represented by a lawyer , although he was eligible for " Green Form " legal advice and assistance before the hearing ( see paragraph CARDINAL below ) , and the magistrates could have made an order for Assistance by Way of Representation ( " ABWOR " ) if they had thought it necessary ( see paragraph CARDINAL below ) .

ORG The magistrates found that PERSON , who had CARDINAL " O " level General Certificates of Secondary Education , had started a ORG in DATE , but had left it in DATE and had not worked since . He had applied for income support , but had been turned down because it is not payable to those who are voluntarily unemployed , and he had no personal assets or income .

On the basis of this evidence , the magistrates concluded that his failure to pay the community charge was due to his culpable neglect , " as he clearly had the potential to earn money to discharge his obligation to pay " . Accordingly , they decided that he ought to be sent to prison for DATE unless he paid what was owing .

PERSON was taken to GPE prison on DATE .

ORG On DATE a solicitor went on the record as representing Mr PERSON and lodged a notice of appeal by way of case stated ( see paragraph CARDINAL below ) and an application for bail pending appeal ( see paragraph CARDINAL below ) . Legal aid was obtained for the appeal , but not for the bail application , because it is not available for such proceedings . In the event , the solicitor appeared without payment before the magistrates on DATE to apply for bail , but he was unsuccessful .

On DATE Mr PERSON 's solicitor lodged an application for leave to apply for judicial review and for bail in ORG . He was obliged to ask for judicial review , despite the fact that he had already lodged an appeal by way of case stated , because otherwise he could not have applied for bail in ORG until the magistrates had stated a case ( see paragraph CARDINAL below ) . Bail was granted on DATE and PERSON was thus released from prison , having served DATE .

ORG The ORG heard the appeal by way of case stated and the application for judicial review together on CARDINAL and CARDINAL DATE ( GPE v. PERSON , ex parte PERSON , DATE , unreported ) . Mr PERSON was represented and legally aided . The court noted that it had been necessary to apply for judicial review in order to get bail , but that the case stated procedure was more appropriate . Accordingly no order was made on the judicial review application .

ORG Mr Justice PERSON in ORG held that the magistrates had been mistaken in concluding that PERSON failure to pay the community charge had been due to culpable neglect :

" In my view this finding was wrong on the evidence available to the justices . In certain circumstances a failure on the part of the debtor to work and put himself in funds to pay the community charge might constitute culpable neglect . In my judgment , however , before such a finding could be sustained , at the very least there would have to be clear evidence that gainful employment , for which he was fit , was on offer to the debtor and that he had rejected or refused that offer . There was no such evidence in this case . In my judgment , the justices ' finding of culpable neglect can not be sustained on the evidence adduced before them . "

ORG In addition , he found that the decision to commit PERSON to prison would have been wrong even if there had been evidence of culpable neglect , because he did not have any means with which to pay the debt at the time of the hearing before the magistrates , and because " [ s]uch an order is only to be made if payment can be made and there is no other way of inducing the [ debtor ] to do so " . In the circumstances it was incumbent upon them to consider the alternatives to immediate detention provided for by the Regulations : they could have suspended the term of imprisonment subject to such conditions as they thought fit , or refused to issue a warrant , since the local authority could have renewed their application at a later date if PERSON PERSON 's circumstances had changed ( see paragraph CARDINAL below ) .

Mr PERSON was not able to apply for compensation in respect of the time he spent in prison , because he was unable to show bad faith on the part of the magistrates , as was required by section CARDINAL of ORG ( see paragraph CARDINAL below ) .

ORG The relevant subordinate legislation is ORG DATE ( ORG ) ( " the Regulations " ) .

The relevant provisions of LAW ( " application for a liability order " ) are as follows :

" ( CARDINAL ) ORG If an amount which has fallen due ... is wholly or partly unpaid ... the charging authority may ... apply to a magistrates ' court for an order against the person by whom it is payable .

( CARDINAL ) ORG The court shall make the order if it is satisfied that the sum has become payable by the defendant and has not been paid . "

Regulation CARDINAL ( CARDINAL ) provides for the seizure and sale of a debtor 's property ( " levying of distress " ) :

" Where a liability order has been made the authority which applied for the order may levy the appropriate amount by distress and sale of goods of the debtor against whom the order was made . "

Regulation CARDINAL is concerned with the committal to prison of a debtor , and provides , so far as is relevant :

" ( CARDINAL ) ORG Where a charging authority has sought to levy an amount by distress under LAW , the debtor is an individual , and it appears to the authority that no ( or insufficient ) goods of the debtor can be found on which to levy the amount , the authority may apply to a magistrates ' court for the issue of a warrant committing the debtor to prison .

( CARDINAL ) ORG On such application being made the court shall ( in the debtor 's presence ) inquire as to his means and inquire whether the failure to pay which led to the liability order concerned being made against him was due to his wilful refusal or culpable neglect .

( CARDINAL ) ORG If ( and only if ) the court is of the opinion that his failure was due to his wilful refusal or culpable neglect it may if it thinks fit -

( a ) issue a warrant of commitment against the debtor , or

( b ) fix a term of imprisonment and postpone the issue of the warrant until such time and on such conditions ( if any ) as the court thinks just .

( CARDINAL ) ORG The order in the warrant shall be that the debtor be imprisoned for a time specified in the warrant which shall not exceed DATE , unless the amount stated in the warrant is sooner paid ... "

The relevant part of LAW provides :

( CARDINAL ) Where an application under regulation CARDINAL has been made but no warrant is issued or term of imprisonment fixed , the application may be renewed ... on the ground that the circumstances of the debtor have changed . "

ORG In GPE v. ORG , ex parte PERSON ( DATE , unreported ) Mr Justice PERSON said in ORG that " The proceedings under LAW are plainly legal proceedings other than criminal proceedings . They are proceedings for the recovery of an unpaid tax . " However , in GPE v. Hebburn Justices , ex parte PERSON ( CARDINAL DATE , unreported ) , Mr Justice PERSON in ORG held that although the initial obligation to pay community charge was a civil one , magistrates " who have reached the point of committal are entertaining a criminal process " .

ORG By virtue of LAW party to proceedings before a magistrates ' court may " question the proceeding on the ground that it is wrong in law or is in excess of jurisdiction by applying to the justices composing the court to state a case for the opinion of ORG on the question of law or jurisdiction involved ... " . This is known as the " case stated " procedure .

ORG Under LAW of LAW , magistrates may grant bail to a party who applies to them to state a case ; but if they refuse to do so , in cases categorised as " civil " under the domestic law , ORG has no jurisdiction to grant bail until it is seized of some substantive proceedings to which the grant of bail can be ancillary .

ORG Acts performed pursuant to an order made by a magistrates ' court which is subsequently set aside by a superior court are not themselves inherently unlawful . It is at the discretion of the higher court whether these collateral acts are also invalid : PERSON v. Deputy Governor of FAC , ex parte GPE [ DATE ] CARDINAL Appeal Cases CARDINAL , ORG ( per Lord Justice PERSON in ORG ) ; GPE and ORG v. ORG [ DATE ] CARDINAL Weekly Law Reports CARDINAL , CARDINALC-CARDINALC ( per Lord PERSON , Lord Chancellor , in ORG ) ; PERSON v. Panel on Take - overs and Mergers , ex parte ORG [ DATE ] FAC CARDINAL , CARDINAL - C ( per Sir PERSON , Master of the Rolls ) .

ORG In LANGUAGE law , orders of a magistrates ' court which are in excess of jurisdiction are void from the outset , whereas orders made within jurisdiction remain valid until set aside by a superior court . It is only in respect of the former type of error that a court can be held civilly liable in damages ( under section CARDINAL of ORG DATE , which replaced section CARDINAL of the Justices of the Peace Act CARDINAL - see paragraphs QUANTITY below ) .

ORG The appropriate test for whether an order of a magistrates ' court is void for lack of jurisdiction is that set out by ORG in ORG v. PERSON [ DATE ] Appeal Cases CARDINAL . In that case magistrates had made an order sending a CARDINAL-year - old boy to a training school after a hearing at which he was not legally represented , had not applied for legal aid and had not been informed of his right so to do . The order was quashed on judicial review on the ground that , by virtue of LAW ) Order DATE , magistrates were not permitted to pass a custodial sentence for the first time on a juvenile who was not legally represented , unless he had applied for legal aid and been refused on grounds of means or had been informed of his right to apply for it but had refused or neglected to do so .

The boy then applied for damages for false imprisonment against the magistrates . Since the case was decided prior to the enactment of ORG DATE and at a time when it was the law that magistrates were liable in damages for false imprisonment if they acted in excess of jurisdiction ( see paragraph CARDINAL below ) , ORG was required to decide the jurisdictional question .

In its judgment , a magistrates ' court acted in excess of jurisdiction in CARDINAL circumstances only : ( CARDINAL ) if it acted without having jurisdiction over the cause , ( CARDINAL ) if it exercised its powers in a procedural manner that involved a gross and obvious irregularity , or ( CARDINAL ) if it made an order that had no proper foundation in law because of a failure to observe a statutory condition precedent . The instant case fell within the third limb of the rule : the magistrates were liable in damages because they had not observed the requirements of LAW .

During the course of his judgment speech , Lord PERSON commented ( at page CARDINAL E - F ) , on the jurisdiction of magistrates in conducting a criminal trial :

" ... once justices have duly entered upon a summary trial of a matter within their jurisdiction , only something quite exceptional occurring in the course of their proceeding to a determination can oust their jurisdiction ... [ A]n error ( whether of fact or law ) in deciding a collateral issue on which jurisdiction depends will not do so . Nor will the absence of any evidence to support a conviction ... "

ORG The final limb of the rule formulated by ORG in ORG v. PERSON ( that is , that magistrates exceed their jurisdiction when they make an order which has no foundation in law because of a failure to observe a statutory condition precedent ) was applied by ORG in NORP v. ORG , ex parte PERSON [ DATE ] CARDINAL ORG CARDINAL , a case concerning rates ( the predecessor to the community charge ) . Again , the issue was whether magistrates had acted in excess of jurisdiction and were therefore liable in damages for false imprisonment .

The plaintiff had been unable to pay all of the rates for which he became liable in DATE , and in DATE he failed to follow his accountant 's advice to close his business and to go bankrupt . Applying legislation similar to LAW of ORG , the magistrates found that his failure to follow the accountant 's advice constituted culpable neglect and they committed him to prison . ORG held that no causal connection had been established between the failure to follow advice in DATE and the failure to pay the rates in DATE , and that the magistrates had not properly entered into the inquiry ( as to whether the failure to pay was due to culpable neglect ) required by the legislation as a condition precedent of the warrant of commitment . They were therefore acting in excess of jurisdiction and were liable in damages .

The CARDINAL ORG judges expressed their findings in slightly different terms . Lord Justice PERSON observed that " they never carried out the inquiry required [ by the law ] " ; Lord Justice PERSON found that " some inquiry about the applicant 's finances was made " , but that " a clear and crucial distinction can be drawn between the inquiry required by the statute and the inquiry which was in fact carried out . The justices never examined the question whether the failure to pay was due to culpable neglect " ; and Sir PERSON ( who dissented from the majority decision ) said : " ... it is quite clear that the justices carried out an inquiry into means carefully and in detail ... It is equally plain that they misdirected themselves completely ... They ... failed to realise that the question they had to decide was whether the applicant 's failure to pay his rates was ` due either to his wilful refusal or to his culpable neglect ' " ( see pp . CARDINAL B , CARDINAL ORG G and CARDINAL E ) .

ORG Magistrates enjoy a statutory immunity from civil liability in certain circumstances . Before the coming into force of section CARDINAL of ORG DATE on DATE , this immunity was provided for by sections CARDINAL and CARDINAL of the Justices of the Peace Act DATE . In brief , a magistrate was liable in damages for acts done by him in his official capacity if it could be proved either ( CARDINAL ) that the act was done maliciously and without reasonable and probable cause or ( CARDINAL ) that it was performed outside or in excess of jurisdiction ( see paragraph CARDINAL above for the meaning of the latter expression ) .

ORG The position under LAW DATE is now that an action lies against a magistrate only if it can be proved that he acted both in bad faith and in excess of jurisdiction :

" An action shall lie against any justice of the peace ... in respect of any act or omission of his -

( a ) in the purported execution of his duty -

( i ) ORG as such a justice ; ...

( b ) with respect to any matter which is not within his jurisdiction , if , but only if , it is proved that he acted in bad faith . "

ORG The legal - aid scheme does not provide for full representation before magistrates for proceedings for committal to prison for non - payment of the community charge . The " Green Form " scheme provides TIME ' worth of advice and assistance from a solicitor ( the time limit can be extended ) , including preparation for a court case , but it does not provide for representation .

Assistance by Way of Representation ( " ORG " ) enables a magistrates ' court , in certain circumstances , to appoint a solicitor who happens to be within the court precincts to represent a party who would not otherwise be represented . Regulation CARDINAL ( CARDINAL ) ( b ) of ORG Regulations DATE provides that ORG may be given : ORG

" at a hearing in any proceedings in a magistrates ' court to a party who is not receiving and has not been refused representation in connection with those proceedings , where the court -

( i ) ORG is satisfied that the hearing should proceed on DATE ;

( ii ) ORG is satisfied that that party would not otherwise be represented ; and

( iii ) ORG requests a solicitor who is within the precincts of the court for purposes other than the provision of ORG in accordance with this sub - paragraph , or approves a proposal from such a solicitor , that he provide that party with ORG ... "


Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect)

Dmitry Dedov;Erik Møse;Isabelle Berro-Lefèvre;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Ksenija Turković

The applicant was born in DATE . After his release from detention in DATE the applicant resided in the town of PERSON .

The applicant arrived in GPE from GPE in DATE or DATE . He was arrested on DATE in the town of PERSON in relation to criminal proceedings against him ( see paragraph CARDINAL below ) .

During his admission to NORP detention centre no . CARDINAL in DATE the applicant had a check - up and was questioned about his past illnesses . According to the documents submitted by the ORG , since DATE the applicant had been suffering from pulmonary tuberculosis and had received treatment in GPE . According to the applicant , in DATE and DATE he had pneumonia and had no pulmonary tuberculosis before his arrest in DATE .

The applicant had a chest fluorography examination in the detention centre and was examined by a chest physician who prescribed treatment ( such as ethambutol and BCARDINAL vitamin ) in relation to his tuberculosis . On DATE a blood sample from the applicant was submitted for HIV testing ( an “ enzyme - linked immunosorbent assay ” ) . An additional similar test and a confirmatory test ( “ western blot ” ) were carried out on CARDINAL and DATE respectively .

The case file contains a document dated DATE which appears to be the record of the HIV - related initial physical examination ( involving , inter alia , vital signs , lymph nodes , skin , thorax and lungs ) . The applicant ’s weight was QUANTITY . The reference to the HIV stage is not legible . The next check up was scheduled for DATE . The ORG also submitted the applicant ’s “ epicrisis ” record for DATE , which indicates HIV stage CARDINALБ under the domestic classification ( see paragraph CARDINAL below ) . It is indicated in the record that during DATE the applicant did not request any treatment or medication . Another document entitled “ Plan for treatment in DATE ” indicated that the applicant was to be examined in DATE . This document did not specify any treatment , including HIV - related medication .

It can be seen from the typed copy of the applicant ’s medical file that on several occasions in DATE and DATE he was examined by a chest physician who maintained his medication in relation to tuberculosis .

After the closure of the criminal proceedings against him ( see paragraph CARDINAL below ) , in DATE the applicant was transferred to prison no . CARDINAL in the NORP region . Subsequently , he also spent periods of time in prison no . CARDINAL , as well as in the psychiatric and other units of the hospital for detainees ( DATE , DATE , DATE and DATE and DATE ) . The applicant was treated , inter alia , for tuberculosis , gonorrhoea , haemorrhoids , hepatitis C , a psychiatric condition , and in relation to acts of self - mutilation .

NORP In particular , in DATE the applicant was admitted to tuberculosis hospital no . QUANTITY in relation to the progression of his infection with the hepatitis C virus . He had a number of blood tests , such as a full blood count ( including leukocytes , erythrocytes , and lymphocytes ) , a urine test , a chest fluorography , an X - ray and an abdominal ultrasound scan , and was examined by a chest physician and a neurologist . It appears that , although scheduled , a consultation by an infectious disease specialist was not provided . It is indicated in CARDINAL of the documents submitted by the Government that the applicant ’s weight dropped to QUANTITY in DATE . However , it can be seen from the record of a check - up done on DATE that his weight was then QUANTITY . This record mentions HIV stage CARDINAL or CARDINAL ( not clearly legible ) . The next check - up was scheduled for DATE .

The Government submitted a handwritten medical document ( which appears to relate to DATE ) bearing the stamp of prison no . CARDINAL and indicating HIV stage CARDINAL

It appears that in DATE the applicant was examined by an infectious disease specialist who prescribed laboratory testing for bilirubin and some laboratory tests in relation to liver function . The record of a check - up of the applicant of DATE indicates HIV stage CARDINALБ. The next check - up was scheduled for DATE .

NORP In DATE the applicant complained that he was not being provided with adequate medical treatment in relation to his diseases , in particular as regards his HIV infection . The PERSON prosecutor ’s office in charge of the supervision of prisons examined the applicant ’s complaint and stated that the applicant had been provided with medical care free of charge , and that he had been regularly admitted to a medical facility and had consultations by infectious disease specialists . The prosecutor ’s office also mentioned that no funds had been allocated to prison no . CARDINAL for out - patient treatment of HIV - positive detainees in DATE and thus the relevant medication had not been available there .

In DATE the applicant was again hospitalised and his discharge certificate refers to HIV stage CARDINAL . In DATE he had a periodic check - up ; the record indicates HIV stage CARDINAL ( corrected from “ CARDINAL ” ) .

In DATE the applicant complained about the issue of medical care to ORG for the Execution of Sentences . This authority stated in reply that an infectious disease specialist had concluded that antiretroviral therapy ( ART ) was not necessary . Another similar complaint was examined in DATE by the PERSON prosecutor ’s office in charge of the supervision of prisons . Dismissing the applicant ’s complaint , this authority mentioned that prison hospital no . CARDINAL had facilities for carrying out an immunological assessment , should it be prescribed for the applicant . So far there had been no indications for such an assessment .

In DATE ORG for the Execution of Sentences examined and dismissed the applicant ’s further complaint relating to his HIV treatment . They stated that the applicant had received the necessary testing and medication , as well as consultations by specialist doctors , including an infectious disease specialist . They indicated that a decision on immunological assessment had to be taken by a medical professional . The applicant ’s illnesses and their staging had not , at the relevant time , required ART .

DATE and DATE the applicant was kept in hospital no . CARDINAL in the NORP region , on account , in particular , of the aggravation of his pulmonary tuberculosis . According to the Government , in DATE the applicant failed to comply with unspecified recommendations made by the regional centre for the prevention of and fight against AIDS and infectious diseases ( “ the AIDS centre ” ) .

NORP The applicant had a check up in DATE ; the record indicates HIV stage DATE In DATE he underwent an immunological assessment . It appears that he started a highly active antiretroviral therapy ( ORG ) regimen in DATE . In DATE the regimen was adjusted .

The applicant sought early conditional release . By a judgment of CARDINAL DATE ORG of GPE granted his application and ordered his release , considering that his continued detention was not necessary for the purposes of his “ correction ” . The applicant was released soon thereafter . The court ordered him to report to the supervising authority and not to change his place of residence without prior notice to that authority .

According to the applicant , the administration of the detention facility told him that he had DATE to leave GPE or he would be deported .

According to the Government , in DATE and DATE the applicant attended the AIDS centre , where he confirmed that he was taking medication .

On DATE , rejecting the applicant ’s plea of self - defence , ORG convicted the applicant of causing injuries to CARDINAL person and causing fatal injuries to another person . The court sentenced the applicant to DATE and DATE of imprisonment . On DATE ORG upheld the judgment . The applicant made submissions through a videoconferencing facility from the remand centre .

The applicant served his sentence of imprisonment from DATE , when he was released ( see paragraphs CARDINAL and CARDINAL above ) .

By Decree no . CARDINAL of DATE ORG adopted Guidelines relating to ORG ( section CARDINAL ) and Dispensary Supervision ( section CARDINAL ) . The LAW state as follows .

There is a clear link between the illness ’s progress and the reduction of CDCARDINAL lymphocytes , the latter process being the main feature of HIV pathogenesis ( point CARDINAL . ) . Staging of HIV should be determined depending on clinical and other relevant considerations listed in the Guidelines ( points CARDINAL . and CARDINAL . ) . An HIV - positive person should be subjected to an initial examination confirming the HIV diagnosis and determining the stage of the illness and any concomitant illnesses . The initial examination should include , inter alia , HIV serological testing ( an enzyme - linked immunosorbent assay test and a western blot test ) and a CDCARDINAL cell count ( point CARDINAL . of the Guidelines ) . Subsequent examinations should be carried out in accordance with the gravity of the patient ’s state of health , or on a periodic basis . A subsequent examination at HIV stage CARDINAL or CARDINAL should be carried out in DATE for a CDCARDINAL cell count of below CARDINAL , and in DATE for a CDCARDINAL cell count of above CARDINAL or if unknown .

Basic therapies include ORG and prophylaxis to prevent secondary diseases . Antiretroviral therapy should be prescribed at stages CARDINAL , CARDINAL , CARDINAL and CARDINAL ( under the NORP classification ) during periods of clinical activity and with regard to the clinical data ( point CARDINAL.CARDINAL.CARDINAL.CARDINAL . of the Guidelines ) . As to periods of remission , sustaining ORG should be provided , with regard to clinical and immunological assessment . Depending on the CDCARDINAL level , the therapy should be constant or administered in DATE periods with DATE interruptions . If the CDCARDINAL level is not known , no sustaining therapy should be provided in certain situations or at stage CARDINALA.

Federal Law no CARDINAL-FZ on ORG in GPE provided , in DATE version , that the ORG guaranteed the availability of the relevant examinations for detecting HIV infection ; diagnosis and treatment ; and provision of free medical care to HIV - positive NORP citizens ( section CARDINAL of the Law ) .

In DATE ORG ) published its LAW . Guidelines for a public health approach . ” They read as follows :

“ WHO recommends that , in resource - limited settings , HIV - infected adults and adolescents should start ORG therapy when the infection has been confirmed and CARDINAL of the following conditions is present .

* Clinically advanced HIV disease :

-WHO Stage IV HIV disease , irrespective of the CDCARDINAL cell count ;

-WHO Stage III disease with consideration of using CDCARDINAL cell counts < CARDINAL/mmCARDINAL to assist decision - making .

* WHO Stage I or II HIV disease with PERSON cell counts < CARDINAL/mmCARDINAL ...

... The treatment of patients with WHO Stage IV disease ( clinical AIDS ) should not be dependent on a CDCARDINAL cell count determination . However , where available , this test can be helpful in categorizing patients with Stage III conditions with respect to their need for immediate therapy . For example , pulmonary GPE can occur at any CDCARDINAL count level and , if the CDCARDINAL cell count level is well maintained ( i.e. > CARDINAL/mmCARDINAL ) , it is reasonable to defer therapy and continue to monitor the patient . For Stage III conditions a threshold of ORG has been chosen as the level below which immune deficiency is clearly present such that patients are eligible for treatment when their clinical condition portends rapid clinical progression ... For patients with Stage I or Stage II HIV disease the presence of a CDCARDINAL cell count < CARDINAL is an indication for treatment .

In cases where CDCARDINAL cell counts can not be assessed the presence of a total lymphocyte count of CARDINAL or below can be used as a substitute indication for treatment in the presence of symptomatic HIV disease . While the total lymphocyte count correlates relatively poorly with the CDCARDINAL cell count in asymptomatic persons , in combination with clinical staging it is a useful marker of prognosis and survival . An assessment of viral load ( e.g. using plasma HIV-CARDINAL RNA levels ) is not considered necessary before starting therapy . Because of the cost and complexity of viral load testing , WHO does not currently recommend its routine use in order to assist with decisions on when to start therapy in severely resource - constrained settings . It is hoped , however , that increasingly affordable methods of determining viral load will become available so that this adjunct to treatment monitoring can be more widely employed .

It should be noted that the current WHO Staging System for HIV Infection and Disease for Adults and Adolescents was developed DATE and has consequent limitations . Adaptations at the level of national programmes may therefore be appropriate . Nevertheless , it remains a useful tool for assisting in defining parameters for initiating therapy in resource - limited settings and thus has continued to be applied in this revision . ”

Under these Guidelines , if CDCARDINAL testing was , at the time , not available , it was recommended that ORG be offered to patients with : ( i ) WHO Stage IV disease , irrespective of the total lymphocyte count ; ( ii ) WHO Stage III disease , irrespective of the total lymphocyte count , the recommendation to start ORG in all patients with stage III disease without reference to total lymphocyte counts reflecting , in the ORG ’s opinion , the consensus of expert opinion ; and ( iii ) WHO Stage II disease with a total lymphocyte count PERSON . A total lymphocyte count of ≤ CARDINAL/mmCARDINAL could be substituted for the CDCARDINAL count when the latter was unavailable and HIV - related symptoms existed . It was not useful in the asymptomatic patient . Thus , in the absence of CDCARDINAL cell testing , asymptomatic HIV - infected patients ( WHO Stage I ) should not be treated because there was currently no other reliable marker available in severely resource - constrained settings .

In DATE the ORG also published “ HIV / AIDS Treatment and Care . WHO Protocols for countries of ORG ” . The Protocols provide that the initial evaluation of an HIV positive patient must , inter alia , include routine laboratory assessments ( haemoglobin , white blood cell count and differential , urinalysis , liver function tests , creatinine ) and a CDCARDINAL cell count . ART should be started at ( i ) stage IV irrespective of CDCARDINAL cell count ; ( ii ) stage III disease if symptoms present ( including , but not restricted to , chronic diarrhoea of unknown aetiology , prolonged fever of unknown aetiology , pulmonary tuberculosis , recurrent invasive bacterial infections , or recurrent / persistent mucosal candidiasis ) , with consideration given to using CDCARDINAL cell counts < CARDINAL/mmCARDINAL to assist decision making . A CDCARDINAL count is advisable to assist with determining the need for immediate therapy . For example , pulmonary GPE may occur at any CDCARDINAL level and other conditions may be mimicked by non - HIV aetiologies ( for example , chronic diarrhoea , prolonged fever ) ; ( iii ) stage I or II disease with CDCARDINAL cell counts = CARDINAL . The precise CDCARDINAL level above CARDINAL at which ORG treatment should be started is not established . ART is recommended for all patients with GPE with a CDCARDINAL count < CARDINAL cells / mmCARDINAL and should be considered for patients with CDCARDINAL < CARDINAL cells / mmCARDINAL .

In DATE the ORG issued revised guidelines : “ Antiretroviral therapy for HIV infection in adults and adolescents . Recommendation for a public health approach . ” ( with previous updates from DATE ) . They read as follows :

“ In resource - limited settings the decision to initiate ORG in adults and adolescents relies on clinical and immunological assessment . In order to facilitate the rapid scale - up of ART programmes with a view to achieving universal access to this therapy , WHO emphasizes the importance of using clinical parameters in deciding when to initiate it . However , it is recognized that the value of clinical staging in deciding when to initiate and monitor ORG is improved by additional information on baseline and subsequent ( longitudinal ) CDCARDINAL cell counts . While WHO continues to advocate wider availability of affordable point - of - care CDCARDINAL cell count testing , the lack of a CDCARDINAL count should not delay the initiation of ART if the patient in question is clinically eligible . WHO encourages national programmes to increase access to CDCARDINAL measurement technologies ...

Clinical staging is intended for use where HIV infection has been confirmed by HIV antibody testing . It should form part of the baseline assessment ( first visit ) on entry into a care and treatment programme and is used to guide decisions on when to start co - trimoxazole prophylaxis and when to start and switch ART in situations where CDCARDINAL testing is not available ...

ART results in improvement in clinical status and brings about effective reversal of the clinical stage in patients with symptomatic disease . However , the value of clinical staging in monitoring the efficacy of ART , defining ART failure and determining when to switch ORG is less clear . Studies are urgently needed to address the use of clinical criteria ( clinical stage on treatment ) in deciding when to switch LAW in the absence of CDCARDINAL cell counts or viral load testing .

The optimum time to commence ORG is before patients become unwell or present with their first opportunistic infection . Immunological monitoring ( CDCARDINAL testing ) is the ideal way to approach this situation . A baseline CDCARDINAL cell count not only guides the decision on when to initiate ORG but is also essential if CDCARDINAL counts are to be used to monitor ART ...

The benchmark threshold marking a substantially increased risk of clinical disease progression is a CDCARDINAL cell count of QUANTITY . Although it is never too late to initiate ART , patients should preferably begin the therapy before the CDCARDINAL cell count drops to or CARDINAL cells / mmCARDINAL [ A - III ] . The optimum time to initiate ORG with a CDCARDINAL cell count of QUANTITY is unknown .

Patients with CDCARDINAL cell counts in this range require regular clinical and immunological evaluation .

The treatment of patients with WHO clinical stage CARDINAL disease should not depend on a CDCARDINAL cell count determination : all such patients should initiate ART [ A - III ] . For WHO clinical stage CARDINAL conditions , a threshold of QUANTITY has been identified as a level below which functional immune deficiency is present and ORG should be considered . This level also conforms to what is indicated in other consensus guideline documents . QUANTITY counts can be helpful in categorizing patients with stage CARDINAL conditions in respect of their need for immediate therapy . For example , pulmonary tuberculosis or severe bacterial infections can occur at any CDCARDINAL count level and it is reasonable to delay ORG and continue to monitor patients with CDCARDINAL cell counts QUANTITY . However , the initiation of ART is recommended for all HIV - infected individuals with pulmonary GPE and CDCARDINAL counts QUANTITY ... and also for patients with severe bacterial infections who have CDCARDINAL counts below this value . ”

According to the WHO Clinical Protocols on HIV / AIDS Treatment and Care , adopted in DATE , the core component of treating HIV - positive persons is the provision of ORG , including ORG , combining CARDINAL or more drugs . The initial evaluation of a patient should include confirmation of HIV infection status with the potential time of infection established , if possible ; a detailed personal , family and medical history ; a physical examination ; laboratory and other examinations ; specialist examinations , as appropriate ; and clinical and immunological staging . Clinical staging ( stage CARDINAL or DATE ) and CDCARDINAL counts are the best primary markers and viral load the secondary marker for deciding whether to start ORG .

In DATE the ORG issued a revised and updated version of the Guidelines “ Antiretroviral therapy for HIV infection in adults and adolescents . Recommendation for a public health approach . ” The revised text indicates that all adolescents and adults with HIV infection and CDCARDINAL counts of or CARDINAL cells / mmCARDINAL should start ART , regardless of the presence or absence of clinical symptoms . Those with severe or advanced clinical disease ( WHO clinical stage CARDINAL or CARDINAL ) should start ART irrespective of their CDCARDINAL cell count . All patients should have access to CDCARDINAL cell - count testing to optimise pre - ART care and ORG management . Viral - load testing is recommended to confirm suspected treatment failure . Irrespective of CDCARDINAL cell counts , patients co - infected with HIV and tuberculosis should be started on ORG as soon as possible after starting ORG treatment .

The United Nations Guidelines on HIV / AIDS and Human Rights , under the heading “ Freedom from Cruel , Inhuman or Degrading Treatment or Punishment ” state that denial to prisoners of access to HIV - related health care can constitute cruel , inhuman or degrading treatment , whereas prisoners suffering from AIDS should be considered for early release and given proper treatment outside prison .

The relevant extracts from the CARDINALrd ORG [ ORG ( CARDINAL ) CARDINAL ] of ORG for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment ( “ the ORG ” ) read as follows :

A prison health care service should be able to provide medical treatment and nursing care , as well as appropriate diets , physiotherapy , rehabilitation or any other necessary special facility , in conditions comparable to those enjoyed by patients in the outside community . Provision in terms of medical , nursing and technical staff , as well as LOC , installations and equipment , should be geared accordingly .

There should be appropriate supervision of the pharmacy and of the distribution of medicines . Further , the preparation of medicines should always be entrusted to qualified staff ( pharmacist / nurse , etc . ) .

DATE . A medical file should be compiled for each patient , containing diagnostic information as well as an ongoing record of the patient ’s evolution and of any special examinations he has undergone . In the event of a transfer , the file should be forwarded to the doctors in the receiving establishment .

Further , DATE registers should be kept by health care teams , in which particular incidents relating to the patients should be mentioned . Such registers are useful in that they provide an overall view of the health care situation in the prison , at the same time as highlighting specific problems which may arise .

The smooth operation of a health care service presupposes that doctors and nursing staff are able to meet regularly and to form a working team under the authority of a senior doctor in charge of the service . ”


Violation of Art. 8;Not necessary to examine Art. 14+8;Just satisfaction reserved

Mr. PERSON , who is DATE , is a shipping clerk resident in GPE , GPE .

Mr. PERSON is a homosexual and his complaints are directed primarily against the existence in GPE of laws which have the effect of making certain homosexual acts between consenting adult males criminal offences .

The relevant provisions currently in force in GPE are contained in the Offences against LAW ( " LAW " ) , LAW DATE ( " LAW " ) and the common law .

Under sections CARDINAL and CARDINAL of LAW , committing and attempting to commit buggery are made offences punishable with maximum sentences of life imprisonment and DATE imprisonment , respectively . Buggery consists of sexual intercourse per anum by a man with a man or a woman , or per anum or per vaginam by a man or a woman with an animal .

By LAW of LAW , it is an offence , punishable with a maximum of CARDINAL years’ imprisonment , for any male person , in public or in private , to commit an act of " gross indecency " with another male . " PERSON indecency " is not statutorily defined but relates to any act involving sexual indecency between male persons ; according to the evidence submitted to ORG ( see paragraph CARDINAL below ) , it usually takes the form of mutual masturbation , inter - crural contact or oral - genital contact . At common law , an attempt to commit an offence is itself an offence and , accordingly , it is an offence to attempt to commit an act proscribed by LAW . An attempt is in theory punishable in GPE by an unlimited sentence ( but as to this , see paragraph CARDINAL below ) .

Consent is no defence to any of these offences and no distinction regarding age is made in the text of the Acts .

An account of how the law is applied in practice is given below at DATE .

Acts of homosexuality between females are not , and have never been , criminal offences , although the offence of indecent assault may be committed by CARDINAL woman on another under the age of DATE .

As regards heterosexual relations , it is an offence , subject to certain exceptions , for a man to have sexual intercourse with a girl under DATE . Until DATE the age of consent of a girl to sexual intercourse was CARDINAL in both GPE and GPE and in GPE , but by legislation introduced in DATE of consent was increased to CARDINAL in GPE . While in relation to the corresponding offence in GPE and GPE it is a defence for a man under DATE to show that he believed with reasonable cause the girl to be over DATE , no such defence is available under GPE law .

DATE Acts were passed by ORG . When enacted , they applied to GPE and GPE , to all GPE , then unpartitioned and an integral part of GPE , and also , in the case of LAW , to GPE .

In GPE and GPE the current law on male homosexual acts is contained in LAW DATE ( " LAW " ) as amended by LAW ( " LAW " ) .

LAW , an Act consolidating the existing statute law , made it an offence for any person to commit buggery with another person or an animal ( section CARDINAL ) and an offence for a man to commit an act of " gross indecency " with another man ( section CARDINAL ) .

LAW , which was introduced into ORG as a Private Member ’s PERSON , was passed to give effect to the recommendations concerning homosexuality made in DATE in the report of ORG established under the chairmanship of Sir PERSON ( ORG and " PERSON report " ) . ORG regarded the function of the criminal law in this field as

" to preserve public order and decency , to protect the citizen from what is offensive or injurious , and to provide sufficient safeguards against exploitation and corruption of others , particularly those who are specially vulnerable because they are young , weak in body or mind , inexperienced , or in a state of special physical , official , or economic dependence " ,

but not

" to intervene in the private lives of citizens , or to seek to enforce any particular pattern of behaviour , further than is necessary to carry out the purposes we have outlined " .

ORG concluded that homosexual behaviour between consenting adults in private was part of the " realm of private morality and immorality which is , in brief and crude terms , not the law ’s business " and should no longer be criminal .

The DATE Act qualified sections CARDINAL and CARDINAL of the DATE Act by providing that , subject to certain exceptions concerning mental patients , members of the armed forces and merchant seamen , buggery and acts of gross indecency in private between consenting males aged DATE or over should not be criminal offences . It remains a crime to commit a homosexual act , of the kind referred to in these sections , with a person aged less than DATE in any circumstances .

The age of majority for certain purposes , including capacity to marry without parental consent and to enter into contractual relations , was reduced from CARDINAL to CARDINAL by LAW DATE . The voting age and the minimum age for jury service were likewise reduced to CARDINAL by ORG and LAW DATE , respectively .

In DATE , ORG rejected a PERSON aimed at reducing the age of consent for private homosexual act to CARDINAL . Subsequently , in a report published in DATE , a committee established by ORG , namely ORG , recommended that the minimum age for homosexual relations between males should be reduced to CARDINAL . A minority of CARDINAL members favoured a reduction to CARDINAL .

When the applicant lodged his complaint in DATE , the relevant law applicable was substantially similar to that currently in force in GPE . Section CARDINAL of the Sexual Offences ( GPE ) Act DATE , a consolidating provision re - enacting section CARDINAL of LAW , provided for the offence of gross indecency ; the offence of sodomy existed at common law . However , successive Lord Advocates had stated in ORG that their policy was not to prosecute in respect of acts which would not have been punishable if LAW had applied in GPE . ORG ( GPE ) Act DATE ( " LAW " ) formally brought NORP law into line with that of GPE and GPE . As in the case of LAW , the change in the law originated in amendments introduced in ORG by a Private Member .

Under an Act of ORG , ORG , a separate ORG for GPE was established with power to legislate on all matters devolved by that LAW , including criminal and social law . An executive known as the Government of GPE was also established with Ministers responsible for the different areas of the devolved powers . By convention , during the life of ORG ( DATE ) the ORG rarely , if ever , legislated for GPE in respect of the devolved matters - in particular social matters - falling within the former ORG ’s legislative competence .

In DATE , ORG was prorogued and GPE was made subject to " direct rule " from GPE ( see the judgment of DATE in the case of GPE v. GPE Series A no . DATE , pp . CARDINAL and CARDINAL , par . CARDINAL and DATE ) . Since that date , except for DATE when certain legislative and executive powers were devolved to ORG and Executive , legislation for GPE in all fields has been the responsibility of ORG . There are CARDINAL members of ORG , out of a total of CARDINAL , who represent constituencies in GPE .

Under the provisions currently in force , power is conferred on Her Majesty to legislate for GPE by ORG . Save where there are reasons of urgency , no recommendation may be made to Her Majesty to make an ORG under these provisions unless a draft of the LAW has been approved by ORG . It is the responsibility of the Government to prepare a draft Order and to lay it before ORG for approval . A draft can only be approved or rejected in toto by ORG , but not amended . The function of ORG in making an Order once it has been approved by ORG is purely formal . In practice , much legislation for GPE is effected in this form rather than by means of an Act of ORG .

No measures comparable to LAW were ever introduced into LOC Parliament either by the Government of GPE or by any Private Member .

In DATE , following the failure of GPE to work out a satisfactory form of devolved government for GPE , the then Secretary of ORG for GPE announced in ORG that ORG would thenceforth by looking closely at the need for legislation in fields which it had previously been thought appropriate to leave to a future devolved government , in particular with a view to bringing GPE law more closely into harmony with laws in other parts of the country . He cited homosexuality and divorce as possible areas for action . However , recognising the difficulties about such subjects in GPE , he indicated that he would welcome the views of the local people , including those of ORG ( " ORG " ) and of Members of ORG representing GPE constituencies .

ORG , which is an independent statutory body , was accordingly invited to consider the matter . As regards homosexual offences , ORG received evidence from a number of persons and organisations , religious and secular . No representations were made by ORG in GPE or by any of the CARDINAL GPE Members of ORG .

ORG published its report in DATE . ORG concluded that most people did not regard it as satisfactory to retain the existing differences in the law with regard to homosexuality and that few only would be strongly opposed to changes bringing GPE law into conformity with that in GPE and GPE . On the other hand , it did not consider that there would be support for legislation which went further , in particular by lowering the age of consent . Its recommendations were that the law of GPE should be brought into line with LAW , but that future amendments to LAW should not automatically apply to GPE .

On DATE , the ORG published a proposal for a draft Homosexual Offences ( GPE ) DATE , the effect of which would have been to bring GPE law on the matter broadly into line with that of GPE and GPE . In particular , homosexual acts in private between CARDINAL consenting male adults over DATE would no longer have been punishable .

In a foreword to the proposal , the responsible Minister stated that " the Government had always recognised that homosexuality is an issue about which some people in GPE hold strong conscientious or religious opinions " . He summarised the main arguments for and against reform as follows :

" In brief , there are CARDINAL differing viewpoints . CARDINAL , based on an interpretation of religious principles , holds that homosexual acts under any circumstances are immoral and that the criminal law should be used , by treating them as crimes , to enforce moral behaviour . The other view distinguishes between , on the one hand that area of private morality within which a homosexual individual can ( as a matter of civil liberty ) exercise his private right of conscience and , on the other hand , the area of public concern where the ORG ought and must use the law for the protection of society and in particular for the protection of children , those who are mentally retarded and others who are incapable of valid personal consent .

I have during my discussions with religious and other groups heard both these viewpoints expressed with sincerity and I understand the convictions that underlie both points of view . There are in addition other considerations which must be taken into account . For example it has been pointed out that the present law is difficult to enforce , that fear of exposure can make a homosexual particularly vulnerable to blackmail and that this fear of exposure can cause unhappiness not only for the homosexual himself but also for his family and friends .

While recognising these differing viewpoints I believe we should not overlook the common ground . Most people will agree that the young must be given special protection ; and most people will also agree that law should be capable of being enforced . Moreover those who are against reform have compassion and respect for individual rights just as much as those in favour of reform have concern for the welfare of society . For the individuals in society , as for Government , there is thus a difficult balance of judgment to be arrived at . "

Public comment on the proposed amendment to the law was invited .

The numerous comments received by the Government in response to their invitation , during and after the formal period of consultation , revealed a substantial division of opinion . On a simple count of heads , there was a large majority of individuals and institutions against the proposal for a draft Order .

Those opposed to reform included a number of senior judges , ORG , ORG and other organisations , generally of a religious character and in some cases engaged in youth activities . A petition to " Save GPE from Sodomy " organised by ORG led by Mr. PERSON , a Member of ORG , collected CARDINAL signatures . The strongest opposition came from certain religious groups . In particular , ORG saw the proposal as an invitation to NORP society to change radically its moral code in a manner liable to bring about more serious problems than anything attributable to the present law . ORG argued that such a change in the law would lead to a further decline in moral standards and to a climate of moral laxity which would endanger and put undesirable pressures on those most vulnerable , namely the young . Similarly , ORG in GPE , whilst understanding the arguments for the change , made the point that the removal from the purview of the criminal law of private homosexual acts between consenting adult males might be taken by the public as an implicit licence if not approval for such practices and as a change in public policy towards a further relaxation of moral standards .

The strongest support for change came from organisations representing homosexuals and social work agencies . They claimed that the existing law was unnecessary and that it created hardship and distress for a substantial minority of persons affected by it . It was urged that the sphere of morality should be kept distinct from that of the criminal law and that considerations of the personal freedom of the individual should in such matters be paramount . For its part , ORG accepted that homosexual acts in private between consenting adults aged DATE and over should be removed from the realm of criminal offence , but in amplification commented that this did not mean that the ORG considered homosexuality to be an acceptable norm .

Press reports indicated that most of the political formations had expressed favourable views . However , none of the CARDINAL GPE Members of ORG publicly supported the proposed reform and several of them openly opposed it . An opinion poll conducted in GPE in DATE indicated that the people interviewed were evenly divided on the global question of the desirability of reforming the law on divorce and homosexuality so as to bring it into line with that of GPE and GPE .

On DATE , the then Secretary of ORG for GPE , in announcing to ORG that the Government did not intend to pursue the proposed reform , stated :

" Consultation showed that strong views are held in GPE , both for and against in the existing law . Although it is not possible to say with certainty what is the feeling of the majority of people in the province , it is clear that is substantial body of opinion there ( embracing a wide range of religious as well as political opinion ) is opposed to the proposed change ... [ T]he Government have [ also ] taken into account ... the fact that legislation on an issue such as the one dealt with in the draft order has traditionally been a matter for the initiative of a Private Member rather than for Government . At present , therefore , the Government propose to take no further action ... , but we would be prepared to reconsider the matter if there were any developments in the future which were relevant . "

In its DATE report for DATE , ORG reiterated its view that law should be reformed . It believed that there was a danger that the volume of opposition might be exaggerated .

Since ORG was prorogued in DATE ( see paragraph CARDINAL above ) , there has been no initiative of any kind for legislation to amend DATE Acts from any of the mainstream political organisations or movements in GPE .

In accordance with the general law , anyone , including a private person , may bring a prosecution for a homosexual offence , subject to the Director of Public Prosecutions’ power to assume the conduct of the proceedings and , if he thinks fit , discontinue them . The evidence as to prosecutions for homosexual offences DATE reveals that none has been brought by a private person during that time .

During the period from DATE there were CARDINAL prosecutions for homosexual offences in GPE . The large majority of these cases involved minors that is persons DATE ; a few involved persons DATE or mental patients or prisoners . So far as the Government are aware from investigation of the records , no one was prosecuted in GPE during the period in question for an act which would clearly not have been an offence if committed in GPE or GPE . There is , however , no stated policy not to prosecute in respect of such acts . As was explained to ORG , instructions operative within the office of ORG reserve the decision on whether to prosecute in each individual case to the Director personally , in consultation with the Attorney General , the sole criterion being whether , on all the facts and circumstances of that case , a prosecution would be in the public interest .

According to the Government , the maximum sentences prescribed by DATE Acts are appropriate only for the most grave instances of the relevant offence and in practice no court would ever contemplate imposing the maximum sentence for offences committed between consenting parties , whether in private or in public . Furthermore , although liable to an unlimited sentence , a man convicted of an attempt to commit gross indecency would in practice never receive a sentence greater than that appropriate if the offence had been completed ; in general , the sentence would be significantly less . In all cases of homosexual offences the actual penalty imposed will depend on the particular circumstances .

The applicant has , on his own evidence , been consciously homosexual from DATE . For some time he and others have been conducting a campaign aimed at bringing the law in GPE into line with that in force in GPE and GPE and , if possible , achieving a minimum age of consent lower than DATE .

On DATE , the police went to Mr. PERSON ’s address to execute a warrant under LAW DATE . During the search of the house a quantity of cannabis was found which subsequently led to another person being charged with drug offences . Personal papers , including correspondence and diaries , belonging to the applicant in which were described homosexual activities were also found and seized . As a result , he was asked to go to a police station where for CARDINAL he was questioned , on the basis of these papers , about his sexual life . The police investigation file was sent to ORG . It was considered with a view to instituting proceedings for the offence of gross indecency between males . The Director , in consultation with the Attorney General , decided that it would not be in the public interest for proceedings to be brought . Mr. PERSON was so informed in DATE and his papers , with annotations marked over them , were returned to him .


The applicant , PERSON Bompard , is a NORP national who was born in DATE and lives in GPE . She was represented before the ORG by PERSON , a lawyer practising in GPE . The respondent Government were represented by their Agent , PERSON , Director of ORG at ORG .

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

The applicant is a member of the NORP electorate . On CARDINAL and DATE parliamentary elections were held in GPE .

The applicant , together with a number of others , lodged an application with ORG to have the elections declared null and void . She relied on LAW of LAW , under which electoral boundaries must be reviewed according to population changes after the second national population census following the previous boundary review ( see “ Relevant domestic law and practice ” below ) . The applicant alleged that the last electoral boundary review dated back to DATE . Since that time there had been CARDINAL national censuses but , contrary to the provisions of electoral law , there had been no review of constituency boundaries according to population changes prior to the parliamentary elections of CARDINAL and DATE . The applicant considered that , in the light of the statistics from the DATE and DATE censuses , it was apparent that the constituencies , whose boundaries had been drawn up in DATE , were unequal and differed significantly in terms of population . She contended in particular that such population differences infringed the principle of equal suffrage .

In a decision of DATE , ORG dismissed the application on the ground that the matter raised fell within its power to review the constitutionality of Acts ( LAW ) and did not constitute an electoral dispute ( LAW ) , but that the matter had not been referred to it for such a review . It observed in particular :

“ ... In seeking the annulment of the elections held on DATE and DATE in the above - mentioned constituencies , the applicants contended that the current distribution of parliamentary seats between constituencies did not have ‘ an essentially demographic basis’ , in breach of the principle of equal suffrage .

Whilst it was incumbent upon the legislature , under LAW and the Citizen of DATE , taken together with ORG and CARDINAL of the LAW , to change constituency boundaries in order to take into account , whenever necessary , any population changes that may have occurred since the entry into force of LAW ( Law no . CARDINAL - CARDINAL ) of CARDINAL DATE , it is not for ORG , when ruling , as in the present case , under LAW rather than LAW , to review the constitutionality of the legislative provisions contained in Table no . CARDINAL annexed to LAW of LAW . Accordingly , the single complaint submitted by the applicants must be dismissed . ”

Article CARDINAL

“ National sovereignty belongs to the people , who shall exercise it through their representatives and by means of referendum .

No section of the people nor any individual may arrogate to itself , or to himself , the exercise thereof .

Suffrage may be direct or indirect as provided by LAW . It shall always be universal , equal and secret .

All NORP citizens of either sex who have reached the age of majority and who enjoy civil and political rights may vote under the conditions to be determined by law . ”

Article CARDINAL

“ The Constitutional Council shall rule on the proper conduct of the election of deputies and senators in disputed cases . ”

Article CARDINAL

“ Institutional Acts , before their promulgation , and the rules of procedure of parliamentary chambers , before their entry into force , must be referred to ORG , which shall rule on their conformity with LAW .

To the same end , Acts of ORG may be referred to ORG , before their promulgation , by the President of the Republic , the Prime Minister , the President of ORG , the President of the ORG , or CARDINAL deputies or CARDINAL senators . ”

Article L. CARDINAL ( Law no . CARDINAL - CARDINAL of DATE , section CARDINAL , ORG of DATE )

“ Constituencies shall be determined in accordance with Table no . CARDINAL annexed to this Code .

Constituency boundaries shall be reviewed , according to population changes , after the second national population census following the previous boundary review . ”

Section CARDINAL

“ Electoral boundaries can not be redrawn within DATE prior to the normal date on which the chambers concerned are to be re - elected . ”

“ ... LAW that has been referred to ORG for review provides as follows : ‘ Within DATE following the publication of this LAW , the government shall be authorised to draw up , by ordinance , Table no . CARDINAL annexed to LAW . The number of constituencies created in each département shall be set out in the table annexed to LAW . Save in the case of départements whose territory includes islands or enclaves , constituencies shall consist of contiguous areas . In addition , with the exception of constituencies to be created in the cities of GPE , ORG and GPE and in départements which include CARDINAL or more cantons not consisting of a contiguous area , or of which the population , according to the last national population census of DATE , exceeds CARDINAL , the constituency boundary shall follow the cantonal boundary . Population discrepancies between constituencies shall be permitted in order to accommodate public - interest imperatives , but in no event may the population of a constituency differ by PERCENT from the average population of constituencies in the same ORG

As to the complaint relating to the principle of equal suffrage :

... The parties making the referral argued that LAW had infringed the principle of equal suffrage as enshrined in LAW . LAW referred , in its second paragraph , to a table annexed to the text of the LAW by which it was established that each département was required to return CARDINAL deputies to ORG ; this , they contended , had entailed very significant discrepancies in representation . The infringement of the principle of equal suffrage had been aggravated by the fact that within any given département the population of a constituency could vary , upwards or downwards , by PERCENT of the average constituency population . Such a considerable variation could not be justified by public - interest imperatives , especially as in départements where CARDINAL or more cantons had a population of CARDINAL the electoral boundaries did not even have to follow cantonal boundaries . The discrepancies in representation authorised by the law were , in their submission , excessive in view of the nature of the election .

... Under the first paragraph of LAW , the Republic ‘ shall ensure the equality of all citizens before the law , without distinction of origin , race or religion’ ; LAW provides , in its first paragraph , that ‘ national sovereignty belongs to the people , who shall exercise it through their representatives and by means of referendum’ , and , in its third paragraph , that suffrage ‘ shall always be universal , equal and ORG . The second paragraph of LAW provides : ‘ The deputies to ORG shall be elected by direct suffrage.’ DATE the Declaration on the Rights of Man and the Citizen proclaims that the law ‘ must be the same for all , whether it protects or punishes . All citizens , being equal in the eyes of the law , are equally eligible to all dignities and to all public positions and occupations , according to their abilities , and without distinction except that of their virtues and talents.’

... It transpires from those provisions that ORG , whose members are returned by direct universal suffrage , must be elected on an essentially demographic basis ; whilst the legislature may take account of public - interest imperatives as a result of which that fundamental rule carries less weight , it can do so only to a limited extent .

... In stipulating that each département should be represented by CARDINAL deputies , the legislature sought to ensure that a close relationship would be maintained between the elected representative for a constituency and his or her constituents . Having regard , firstly , to the distribution of the population throughout NORP territory as recorded in the most recent national census to date , and , secondly , to the very limited number of départements for which the choice thus made gives the electorate a more favourable degree of representation , the provisions of section CARDINAL(CARDINAL ) of the LAW are not , per se , contrary to LAW . They do imply , however , that any resulting inequalities of representation may not be significantly increased by the application of the rules governing the fixing of electoral boundaries within any given département .

... As regards the fixing of electoral boundaries within any given département , section CARDINAL(CARDINAL ) of the LAW authorises the government , acting by ordinance , to vary the size of a constituency electorate , upwards or downwards , by PERCENT of the average electorate in the département , the legislature ’s intention being to allow public - interest imperatives to be accommodated . As is apparent from section CARDINAL(CARDINAL ) , the permitted margin reflects the need for constituency boundaries to follow cantonal boundaries . In the course of parliamentary debate the government explained that a further purpose of such discrepancy in representation was , in cases where cantonal boundaries were not followed , to take account of the ‘ natural realities constituted by certain geographical entities’ and ‘ the unity between them’ .

... Whilst per se the derogations from the principle of equal suffrage can not be attributed , in each case , to a manifest error of judgment , they may in the aggregate lead to the creation of situations where that principle is breached . Consequently , the provisions of section CARDINAL(CARDINAL ) and ( CARDINAL ) of the Act must be construed as follows : it should be considered , firstly , that the possibility of not following cantonal boundaries in départements where CARDINAL or more cantons do not have contiguous territory or have a population of CARDINAL can only apply to the cantons in question ; secondly , the application of the maximum variance provided for in section CARDINAL(CARDINAL ) must be reserved for exceptional and duly substantiated cases ; further , that possibility may be used only to a limited extent and must be based , in each individual case , on specific public - interest imperatives ; lastly , the fixing of constituency boundaries must never be carried out arbitrarily . Any other interpretation would be unconstitutional .

Strictly subject to the interpretation set out above , LAW , authorising the government to fix parliamentary constituency boundaries by ordinance , is not contrary to the LAW . ”

“ ... ORG , whose members are returned by direct universal suffrage , must be elected on an essentially demographic basis . Whilst the legislature may take account of public - interest imperatives as a result of which that fundamental rule carries less weight , it can do so only to a limited extent and according to specific imperatives .

... It transpires from the LAW under review that , save where geographically impossible , constituencies consist of contiguous territories . Cantonal boundaries have generally been followed . The territory of non - contiguous cantons and of cantons with a population of over CARDINAL has been split into more than CARDINAL constituency only in a limited number of cases . The discrepancy between the size of any given constituency electorate and the average electorate in the same département is not excessively disproportionate .

... However , the deputies who made the first referral argued that the fixing of boundaries as provided for in the LAW , whilst not fundamentally open to criticism from a demographic point of view , was nevertheless arbitrary .

... Regardless of the pertinence of certain criticisms by the deputies who made the first referral against the fixing of electoral boundaries as provided for in the LAW , it does not appear , as matters stand , and taking into account the variety and complexity of local situations that may give rise to different solutions whilst abiding by the same demographic rule , that the choices made by the legislature are in manifest breach of constitutional requirements .

... LAW is not unconstitutional . ”

“ Having completed its review of disputes arising from the last parliamentary elections , the ORG has the following observations to make , indicating the changes that it finds desirable in CARDINAL areas .

( I ) As regards the general conditions in which the elections were held :

From the experience of the DATE elections it can be concluded that legislative improvements should be enacted .

The first matter is the fixing of electoral boundaries . The current boundaries are the result of LAW ( Law no . CARDINAL - CARDINAL ) of CARDINAL DATE . They were based on the results of the national census of DATE . Since then CARDINAL national censuses , carried out in DATE and DATE , have revealed representation discrepancies that are somewhat at odds with the provisions of LAW taken together with ORG and CARDINAL of the LAW . It is thus incumbent upon the legislature to modify those boundaries , as it is apparently preparing to do for the forthcoming elections to the ORG . ”


The applicants , PERSON , PERSON and their CARDINAL daughters are nationals of GPE and GPE , and were born in DATE , DATE , CARDINAL , DATE and DATE respectively . They are currently in GPE . They were represented before the ORG by Mr PERSON , a lawyer practising in GPE .

The applicants are ethnic NORP from the province of GPE in GPE and GPE . In DATE the first applicant travelled to GPE and applied for asylum . This request was refused and he was deported to GPE in DATE .

On DATE the first applicant again came to GPE and , on DATE , he submitted an application for asylum and a residence permit to ORG ( Migrationsverket ) . On DATE the second applicant joined her husband in GPE and , DATE , she also joined his application for asylum and a residence permit . Before ORG , they stated that , upon arrival in his home country in DATE , the first applicant had been detained TIME by the border police and had been instructed to report to the police in GPE . He had done so with the result that he had been detained there for DATE and questioned about the activities of NORP in GPE . DATE , the police had showed up at his home and had questioned him and all the members of his family about the activities of NORP in the neighbourhood . Subsequently , the police had on repeated occasions passed by the applicants’ home and questioned the first applicant . In DATE he had been contacted by a lawyer who had informed him that he was suspected of having connections with the ORG ( PERSON DATE ORG ) . Although the police had never accused him of this , the first applicant had decided to return to GPE to avoid more problems . In DATE the police had come to the applicants’ home and had asked the second applicant about her husband ’s whereabouts . They had , again , showed up in DATE at which time they had taken the second applicant to the police station and questioned her . She had been released after TIME but the police had threatened to imprison her if her husband did not show up within DATE . For these reasons , the second applicant had travelled illegally to GPE .

On DATE ORG refused the ORG request for asylum . It considered that the harassment of which they had been the victims in their home country had been of a general character but not of a serious kind , and that they had not shown that they would be of special interest to the national authorities if they were to be returned to GPE . Thus , they could not be granted asylum . Moreover , the applicants had presented no grounds on which they could be granted residence permits on humanitarian grounds .

The applicants appealed to ORG ( Utlänningsnämnden ) , adding to their claims that , due to the deteriorating situation in GPE , it would be impossible to enforce the deportation order against them .

On DATE ORG granted the applicants temporary residence permits for DATE , as of the date of the decision , due to the very unstable situation in GPE at that time .

Upon the expiry of their temporary residence permits , the applicants renewed their request for asylum and residence permits to stay in GPE . On DATE ORG rejected the request and , on DATE , ORG upheld ORG decision in full and ordered the applicants to leave GPE within DATE from the date of the decision .

To avoid having to return to GPE , the applicants travelled to GPE and applied for asylum there . However , in accordance with LAW , they were sent back to GPE in DATE and , once again , lodged a new application for asylum and residence permits with ORG . They stated that there was nothing left for them to return to in GPE as they would have nowhere to live and unemployment was very high . Moreover , they claimed that since they had not been in GPE since DATE and their CARDINAL children were born in GPE , it would be inhuman to send them back . Furthermore , the second applicant was depressed and anxious , and she received medication for these problems .

On DATE ORG rejected the application . It first noted that the applicants had only invoked humanitarian grounds and they had not claimed that they would risk persecution in their home country . Thus , ORG found that they were not in need of protection in GPE , and stated that they could not be granted residence permits only because their financial situation would be difficult in GPE . Moreover , it noted that the CARDINAL children were very young and did not have a strong connection to GPE and that the second applicant ’s mental health was not so poor that the family could be granted leave to stay based on these grounds .

The applicants appealed against the decision to ORG , maintaining their earlier claims and adding that the first applicant was in poor mental health , suffering from anxiety and depression , and the second applicant ’s poor mental health had deteriorated further . On DATE ORG upheld ORG decision and reasoning in full and ordered the applicants to leave GPE within DATE from the date of the decision .

The applicants remained illegally in GPE and lodged a new application for residence permits with ORG , claiming that since they had been outside of GPE for DATE it would be inhuman to send them back , in particular since their children were born in GPE . Thus , it would not be in the best interests of the children to deport them to a , for them , completely foreign country . Moreover , they alleged that the situation in GPE was unstable and that they were in need of protection in GPE .

On DATE ORG rejected the application . It first observed that it had already considered the applicants claims in its earlier decision and found no reason to change it . Moreover , it stressed that it was the applicants’ own choice to have been away from GPE for DATE since , in spite of several negative decisions from the NORP immigration authorities , they had remained illegally in GPE .

The applicants lodged yet another new application for residence permits on humanitarian grounds , relying on the second applicant ’s deteriorating mental health . She had been diagnosed as suffering from ORG and depression , and she had entertained thoughts of committing suicide .

On DATE ORG also rejected this application , finding that the second applicant’

On DATE ORG rejected yet another application lodged by the applicants as they had invoked no new circumstances .

The applicants submitted CARDINAL medical certificates . The first , dated DATE , had been issued by PERSON , a psychologist , and the second certificate , dated DATE , had been issued by ORG , a chief physician .

The certificates stated that the second applicant suffered from ORG ( PTSD ) with recurring depressive instances , including suicidal thoughts , due to which she had been admitted to a psychiatric clinic on CARDINAL occasions ( the certificates did not specify the dates ) . Her poor mental health was the consequence of traumatic experiences in her home country and of the long , insecure waiting in GPE . She was very afraid of returning to GPE .

As concerned the CARDINAL children , it was observed that they only knew life in GPE and had integrated into NORP society . However , they had developed aggressive behaviour , suffered from nightmares and were afraid of sudden noises . According to the certificates , a deportation to GPE , where the children had never been , could cause them to develop identity problems of a serious nature .

No information was provided as to the first applicant ’s state of health .

On DATE the applicants requested the ORG to indicate to ORG under Rule CARDINAL of ORG a suspension of their deportation to the province of GPE in GPE and GPE .

On DATE the President of the Section to which the case had been allocated decided to apply Rule CARDINAL . He further decided to request ORG to submit a recent , independent assessment of the physical and mental health of the second applicant .

On DATE the Government informed the ORG that , on DATE , ORG , following the ORG ’s request , had decided to stay the deportation of the applicants until further notice .

On DATE the Government provided the ORG with a medical report concerning the second applicant , dated DATE , by PERSON , doctor in psychiatry and psychosomatics and chief physician at the psychiatric clinic of ORG . The report was based on the medical documents available in the case and on a personal examination of the second applicant by the physician . The report stated that the second applicant had suffered from anxiety and sleeplessness already in her home country and that her mental health had deteriorated in DATE when she had been informed that her father and brother had been found in a mass grave in GPE . It had triggered a panic attack and she had been committed to closed psychiatric care DATE , diagnosed as suffering from an adjustment disorder . Following a rejection of CARDINAL of their applications for asylum by ORG , she had had a crisis reaction and again been committed to closed psychiatric care DATE . DATE , DATE , she was again taken into care and treated for depression . Since then she had taken medication to treat her anxiety and sleeplessness and , periodically , anti - depressants . During the personal examination of the second applicant , she had told the physician that she and the children mostly lived with her sister - in - law and her family because the first and second applicants had problems in their relationship . Moreover , she had stated that she only had sporadic contact with the health services and that , from time to time , she would get suicidal thoughts but that she had to live for the sake of her children .

According to the physician , the second applicant appeared tired and dejected but she showed no signs of being psychotic and had no physical health problems . He considered that she suffered DATE of anxiety , depression and nightmares which emanated from traumatic experiences in her home country , together with the protracted insecurity of her present situation and her complicated relationship with her husband . Her depressive symptoms appeared to have become chronic but she did not show any suicidal tendencies . The physician found that the second applicant ’s poor mental health was not so serious that , in itself , it could justify granting her leave to stay in GPE on medical grounds . However , he considered that the family ’s situation as a whole , and in particular the children ’s vulnerability , had to be taken into account before deciding to deport them to their home country . He concluded that the second applicant ’s state of health was not an impediment to the enforcement of the deportation order .


Mr PERSON , a district council employee , lives in PERSON ( GPE ) .

On DATE ORG promoted the applicant with effect from DATE , but postponed the corresponding pecuniary advantages until DATE .

On DATE Mr PERSON applied to ORG ( “ the ORG ” ) seeking the backdating of his promotion as regards the pecuniary advantages also , payment of the difference in salary and annulment of the decision in issue .

On an unspecified date the applicant asked for the case to be set down for hearing .

In a judgment of DATE , the text of which was deposited with the registry on CARDINAL DATE , the ORG gave judgment against the applicant . It held that his claim was ill - founded , as throughout the period in question his work had consisted of the duties associated with the post he had held prior to being promoted .


Violation of Art. 8;Violation of Art. 13;Violation of P7-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - award

Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva

The first applicant , Mr PERSON , born in DATE , settled in GPE in DATE . Soon after that he met the second applicant , born in DATE . Their first daughter , the third applicant , was born on DATE . The first and second applicants married on DATE . Their second daughter , the fourth applicant , was born on DATE . On an unspecified date Mr PERSON was granted a permanent residence permit in GPE . He learned NORP and started his own business . He owns a hotel and a restaurant in GPE .

On DATE the head of ORG ordered the expulsion of Mr PERSON . He also deprived him of the right to reside in GPE and excluded him from NORP territory for a period of DATE . The order , which was based on sections DATE and CARDINAL ) of the DATE LAW ( see paragraph CARDINAL below ) , relied on

“ the reasons set out in proposal no . M-CARDINAL/CARDINAL.CARDINAL.CARDINAL and the fact that [ Mr PERSON 's ] presence in the country represent[ed ] a serious threat to national security ” .

No factual grounds were given . It was indicated in the order that it was immediately enforceable , as provided for in section LANGUAGE of LAW ( see paragraph CARDINAL below ) .

On DATE Mr PERSON was detained . On DATE he was deported to GPE . Subsequently he settled in GPE , GPE , where his wife and daughters visit him .

Once abroad , Mr PERSON retained a lawyer who lodged with ORG an application for judicial review of the expulsion order of CARDINAL DATE . He argued that no reasons had been given for the order and that the relevant factual circumstances had not been duly established . Furthermore , he pointed out that he had a family in GPE .

In the course of the ensuing proceedings the ORG accepted in evidence the classified proposal referred to in the impugned order ( see paragraph CARDINAL above ) . The proposal apparently stated that PERSON PERSON was suspected of affiliation to extremist groups and trafficking in human beings . It is unclear whether Mr PERSON 's representative was also given an opportunity to familiarise himself with the document .

The Sofia City Court gave judgment on DATE . Relying on the ORG 's judgment in the case of PERSON v. GPE ( no . CARDINAL , DATE ) , it found that the bar to judicial review set out in section CARDINAL ) of LAW ( see paragraph CARDINAL below ) was contrary to LAW and was thus to be disregarded .

Examining Mr PERSON 's application on the merits , ORG found that the order of CARDINAL DATE was lawful as it had been issued by a competent authority and in accordance with the law . Referring to different legal provisions relating to national security , it continued as follows :

“ As can be seen from the text of proposal no . M-CARDINAL/CARDINAL.CARDINAL.CARDINAL , the measures imposed [ on Mr PERSON ] by virtue of the disputed order are aimed at the prevention of unlawful activity , as described in [ the provisions on national security ] , namely affiliation of PERSON to extremist groups and participation in organised trafficking in human beings into countries of ORG . The data related to these activities have been collected lawfully , by operational means within the competence of ORG . ”

Lastly , the Sofia City Court found that it was not necessary to examine Mr PERSON 's arguments relating to his family life in GPE . It held :

“ In view of the issues raised in the present case , the arguments set out in [ Mr PERSON 's ] application referring to his lawful residence in the country and his being married to a NORP citizen are irrelevant . The administrative measures [ at issue ] are not of a punitive character , but aim at the prevention of the alien 's unlawful activity described above . Collecting objective data related to unlawful activity suffices to justify the [ impugned ] order . The administrative body was competent to assess in each specific case the extent to which the country 's security was threatened and the effectiveness of the measures to be applied ” .

On an unspecified date Mr PERSON appealed against ORG judgment . He argued that he had been unable to understand which actions on his part had been deemed to threaten national security and that the conclusions about his alleged unlawful activity set out in the proposal of CARDINAL DATE had no evidentiary value as they needed themselves to be proven . Once again , he pointed out that he had a family in GPE .

In a final judgment of DATE ORG dismissed the appeal and upheld ORG judgment . It found that the data relating to the first applicant 's alleged unlawful activity had been collected in accordance with the law and that the impugned expulsion order had been “ reasonably related to the facts set out in the proposal ” . It held that

“ the burden to disprove these facts rested on [ Mr PERSON ] who has not presented evidence in support of his arguments ” .

Furthermore , ORG found that PERSON PERSON had been able effectively to challenge the impugned order as he had been represented by counsel in the judicial proceedings . The measures against him had been based on grounds of national security , which necessitated “ certain restrictions of the possibilities to defend oneself ” .

ORG examined the first applicant 's arguments about his right to family life and dismissed them . It noted that the right to family life was protected under LAW ; however , under paragraph CARDINAL of Article CARDINAL it was acceptable to interfere with a person 's right to family life in the interests of national security . Furthermore , it held :

“ The right to respect for one 's family life is not an absolute right , which always has to prevail ... The interference with the alien 's family life is the result of the coercive administrative measure [ which Mr PERSON ] has to endure in case the family does not settle in the country he has chosen to reside in after his expulsion from GPE . The coercive administrative measure prevents the person from exercising the unlawful activity which justified its imposition , and the separation itself , if it poses a problem for the family , can be resolved by the spouses ” .

The relevant domestic law and practice have been summarised in the ORG 's judgments in the cases of GPE and Others v. GPE ( no . CARDINAL , § § DATE , DATE ) and PERSON v. GPE ( no . CARDINAL/CARDINAL , § § DATE , CARDINAL DATE ) .


Mr PERSON , a civil servant employed by ORG , lives in GPE di GPE .

On CARDINAL DATE he instituted proceedings in ORG ( “ the ORG ” ) for judicial review of a decision of ORG ( PERSON ) assigning him , at the time when he was recruited to a permanent post , to a staff category lower than the one to which he considered himself to be entitled on the basis of the duties he had performed during the period when he was employed on a fixed - term contract .

On CARDINAL DATE the applicant asked for a date to be fixed for the hearing and for the case to be dealt with speedily . On DATE he filed a further application for the proceedings to be expedited .

In a judgment of CARDINAL DATE , deposited with the registry on CARDINAL DATE , the ORG gave judgment against the applicant .