Remainder inadmissible;Violations of Art. 3 (substantive aspect);Violation of Art. 6-1;Violation of Art. 34;Non-pecuniary damage - award

Anatoly Kovler;Christos Rozakis;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens

The applicant was born in DATE . He is now serving his sentence in LOC .

On DATE the applicant was arrested in PERSON on suspicion of robbery . He was allegedly beaten up by the police . At TIME he was put in a cell at the LOC police station .

The applicant stayed in the cell until TIME on DATE . The cell was not equipped with a bunk or a bench . The applicant remained handcuffed all the time . He was not given any food and was escorted to the toilet only once , in the morning .

NORP By letter of DATE , the head of the LOC police station of PERSON confirmed that the cells in the police station were not equipped with bunks or benches and that detainees were not provided with food .

On DATE the applicant was transported to the PERSON temporary detention facility .

A certificate issued on DATE by the doctor of the PERSON temporary detention facility indicates that the applicant was held in the facility from CARDINAL to DATE . A medical examination revealed a bruise on his right eye and abrasions on his face .

On DATE the applicant was transferred to remand centre no . IZ-CARDINAL/CARDINAL in GPE .

On DATE he was escorted to the prosecutor 's office , where he was questioned . After questioning he was transported to the PERSON Town temporary detention facility in GPE . On his way there the escorting officers allegedly beat him and urged him to confess . Once in the detention facility , the applicant signed a confession statement .

The applicant remained in the PERSON Town temporary detention facility until DATE . He was held in a solitary cell measuring CARDINAL sq . m. The cell was not equipped with a bunk or toilet facilities . The applicant was escorted to the toilet twice a day . He was given bread and tea CARDINAL times a day . The window allegedly had no glazing and it was extremely cold in the cell . A certificate issued by ORG indicates that the outside temperature in DATE ranged from CARDINAL C to - CARDINALº C.

On DATE the applicant was transported to remand centre no . ORG in GPE , where he remained for the entire duration of the criminal proceedings against him .

On DATE the applicant allegedly complained to the prosecutor 's office that he had been ill - treated by the police . He did not receive any reply . He did not produce copies of his complaints .

The trial started on DATE in ORG . It transpires from the trial record that on DATE the presiding judge PERSON chose by lot , from a list of QUANTITY names , CARDINAL lay judges and a substitute lay judge to examine the applicant 's case . The formation thus included the presiding judge PERSON , CARDINAL lay judges , PERSON , and a substitute lay judge , PERSON .

On DATE ORG convicted the applicant of several counts of armed robbery , murder and attempted murder of a policeman and sentenced him to life imprisonment . The applicant appealed , complaining , in particular , about the allegedly unlawful composition of the trial court .

On DATE PERSON , counsel for the applicant , asked the President of ORG for information about the appointment and terms of office of the lay judges PERSON and PERSON . On DATE a deputy President of ORG replied that all judges of ORG were competent to try criminal cases at first instance . He disclosed no details about the appointment procedure or terms of office of the lay judges .

On DATE ORG of GPE rejected the applicant 's request to allow the lawyer PERSON to act as his counsel , on the grounds that she was not a professional advocate and was not present at the appeal hearing . It was also noted that the applicant was represented by PERSON , counsel . The court then examined the applicant 's appeal and upheld the conviction . It held that no breach of the rules on the appointment of lay judges had been established .

On DATE counsel for the applicant applied to the President of ORG for permission to access copies of judgments delivered by ORG DATE , in order to verify whether the lay judges PERSON and PERSON . had participated in other criminal cases during DATE . She also asked the President whether the names of the lay judges had been drawn at random by lot as required by LAW .

By undated letter the President of ORG refused access to the court 's archives , stating that counsel could only study the applicant 's case file . PERSON had been appointed as lay judges in DATE , while PERSON . had been appointed in DATE . Their terms of office had been extended by presidential decrees . He further mentioned that the names of the lay judges had been drawn by lot , but refused to send a copy of the records .

On DATE the head of the secretariat of ORG informed counsel for the applicant that the list of lay judges for the courts of GPE had been complied in DATE . PERSON and PERSON . did not appear on the DATE lists .

On DATE the Presidium of ORG , acting on supervisory review , quashed the appeal judgment , finding that the applicant had not been notified of the date and time of the appeal hearing . It remitted the case to ORG for fresh examination on appeal .

On DATE ORG upheld the conviction on appeal . It held , in particular , that the lay judges PERSON had been appointed in DATE and that their term of office had been extended by presidential decrees . It concluded that the court 's composition had been lawful . The applicant was represented by CARDINAL lawyers of his choice .

The documents submitted by the Government show that on DATE the ORG selected CARDINAL lay judges to be assigned to ORG . The list mentioned PERSON . , but not PERSON By decisions of CARDINAL and CARDINAL DATE ORG determined the number of lay judges to be selected for each district court . No actual selection of lay judges was made .

From DATE to CARDINAL DATE the applicant was held in remand centre no . ORG in PERSON . On DATE he was transferred to a correctional colony in GPE .

According to a certificate of CARDINAL DATE issued by the remand centre management and produced by the Government , until DATE the applicant was held in communal cells . It was not possible to establish the number of inmates in each cell , as the remand centre registers for that period had been destroyed on expiry of the statutory storage time - limit . From DATE to CARDINAL DATE the applicant was held in solitary cells . Cell no . CARDINAL measured QUANTITY m , cell no . CARDINAL measured QUANTITY m , cell no . CARDINAL measured QUANTITY and cell no . CARDINAL measured QUANTITY

The Government submitted , relying on certificates dated DATE from the remand centre management , that all the cells were naturally illuminated and ventilated through the windows . The windows in all the cells were glazed . They had no blinds or other screens preventing the access of natural light . Moreover , all the cells were fitted with fluorescent lamps which functioned during DATE and at TIME . The cells were equipped with central heating and the average temperature inside was above QUANTITY in DATE and above DATE C in DATE .

It follows from the same certificates that all the cells had toilet facilities which were not separated from the living area by a partition as “ there was no such requirement under [ domestic law ] ” . It was , however , possible to screen the toilet facilities off by a curtain . The dining table and the beds were situated QUANTITY away from the toilet facilities . There were no insects or rodents in the remand centre , as all the cells were disinfected DATE . The applicant was allowed to take a shower once DATE and was provided at that time with clean bedding . He was also supplied with boiled drinking water and wholesome hot food CARDINAL times a day . He had an TIME daily walk . Occasionally the duration of the DATE walk was shortened to TIME . In reply to the applicant 's complaints , the warders responsible for that omission had been reprimanded . Pursuant to an order by the governor of the remand centre the applicant , who was considered dangerous , was handcuffed when taken to the exercise yard .

In addition to the certificates of CARDINAL DATE the Government also produced certain documents dating from the period of the applicant 's detention in remand centre no . ORG in support of their description of the conditions of the applicant 's detention . Hence , they submitted a letter of CARDINAL DATE addressed to a deputy prosecutor of ORG in which the chief sanitary inspector of penitentiary institutions stated that the applicant was currently held in cell no . CARDINAL . The cell measured QUANTITY . m , was illuminated artificially by fluorescent lamps and was equipped with central heating and sewerage facilities . The average temperature was CARDINAL to CARDINAL C and the humidity was “ subjectively normal ” . The cell was equipped with a bunk and the applicant was provided with bedding . The inspector added that the applicant had been previously held in cell no . CARDINAL , which measured QUANTITY . m and possessed the same characteristics .

The Government also submitted a decision of DATE by the governor of the remand centre ordering that the applicant be handcuffed every time he was let out of his cell , including when he was taken to the visitors ' room , the exercise yard or the shower room . He noted that the applicant had been sentenced to life imprisonment and had been registered as a person liable to escape , attack the warders and take hostages . Accordingly , his handcuffing was necessary to protect the warders and escorting officers .

According to numerous written statements from the warders , produced by the ORG , the conditions of the applicant 's detention were satisfactory . He was provided with sufficient food CARDINAL times a day . His cells were clean , warm and dry . CARDINAL of the warders , PERSON , stated that the applicant 's cell was one of the best in the remand centre . He continued :

“ DATE in DATE [ the applicant ] asked for a piece of material that he might use to insulate his window . The window was not glazed and it was covered by a blanket . In principle , that had no impact on the temperature in cell no . CARDINAL where [ the applicant ] was held . It was very warm in the cell ... [ the applicant ] was given a piece of polythene ...

[ The applicant ] always wears handcuffs on the way to the exercise yard , but in the yard the handcuffs are removed ... ”

Finally , without relying on any documents , the ORG submitted that CARDINAL of the solitary cells in which the applicant was held , cell no . CARDINAL , measured QUANTITY m. The windows in the remand centre were not covered with blinds , these having been removed before DATE . The toilet facilities were equipped with a flush system and were separated from the living area by a partition .

From DATE to DATE the applicant was held in various cells in buildings ORG . CARDINAL and CARDINAL in remand centre no . IZ-CARDINAL/CARDINAL . Each cell accommodated from CARDINAL to CARDINAL inmates . All the cells were overcrowded .

On DATE the applicant was placed in solitary cell no . CARDINAL . The cell measured QUANTITY m. It had concrete walls and floor . The window was covered with a metal screen with CARDINAL ventilation holes . The toilet was not separated from the living area . There was no hot running water in the cell .

On DATE the applicant was transferred to solitary cell no . CARDINAL , post CARDINAL , in the basement , where he remained until DATE . All his personal belongings , including warm clothes , were taken away from him and he was given dirty prison overalls . The cell was QUANTITY in width and QUANTITY in length . The walls were covered with mould , water was dripping from the ceiling and the floor was dirty with mud . There was no access to natural light or fresh air . There was no hot running water in the cell . The applicant , who was ill with arthritis , suffered as a result of the cold and the damp .

The applicant submitted photographs of cell no . CARDINAL confirming his description . The photographs show bare concrete walls , floor and ceiling , all with damp patches on them . The cell is equipped with a floor - level toilet with a rusty water pipe with a tap in place of a flush system . There is also a rusty sink alongside , with its outlet pipe leading to the toilet outlet . The toilet facilities are not separated from the living area . Other photographs show CARDINAL rusty CARDINAL - tier metal beds , CARDINAL of them covered with a dirty mattress , and a small metal shelf used as a dining table . There are CARDINAL small ventilation outlets immediately under the ceiling . There is apparently no window .

One of the photographs shows a door vent QUANTITY wide . According to the applicant , the food was handed to him through that vent . The food parcels from his wife that could not pass through the vent were not given to him .

From DATE the applicant stayed in solitary cell no . CARDINAL , post CARDINAL . It was stifling inside the cell as it had no window or ventilation device .

On DATE the applicant was transferred to solitary cell no . CARDINAL , post DATE , in the basement , where he remained until DATE . The cell measured QUANTITY in width and QUANTITY in length , that is , QUANTITY m. The dimensions of the window were QUANTITY by QUANTITY . It was covered with CARDINAL metal grilles placed behind CARDINAL another and blocking access to natural light . The window had no glazing and it was extremely cold in the cell during DATE . At the applicant 's request the warders gave him a piece of polythene to insulate the window . A certificate issued by a private meteorological company indicates that the outside temperature in DATE ranged from CARDINAL C to - CARDINAL C.

The applicant submitted photographs of cell no . CARDINAL confirming his description . The concrete walls of the cell are indeed covered with damp patches . There is no lavatory bowl ; instead , there is a hole in the floor at the corner of the cell . There is no sign of a flush or other washout system . The toilet is not separated from the living area . Next to the toilet , there is a rusty sink and a small dining table . A CARDINAL - tier metal bed is placed along the opposite wall . The only window is an aperture in a thick concrete wall with several metal bars placed behind one another .

Finally , according to the applicant , he was handcuffed every time he was let out of his cell and taken to the exercise yard . Given that on DATE the air temperature was below CARDINAL , the metal handcuffs hurt his hands . His DATE outdoor exercise was on many occasions curtailed to TIME instead of TIME prescribed by law .

The applicant submitted copies of his numerous complaints to the supervising prosecutor , together with the replies he received . Thus , on DATE and DATE , CARDINAL , DATE , DATE , DATE , and DATE the applicant and his counsel complained to the supervising prosecutor about the appalling conditions of the applicant 's detention in cells nos . CARDINAL and CARDINAL . In particular , the applicant complained that the cells were cold , dark and humid , and that his personal belongings had been taken away from him . In the complaint dated DATE the applicant also alleged that his DATE outdoor exercise had been shortened to TIME and that he was handcuffed while in the exercise yard .

On DATE the governor of remand centre no . IZ-CARDINAL/CARDINAL replied that the applicant 's cell measured QUANTITY m and that all the sanitary norms were met .

By letter of DATE the supervising prosecutor replied that the applicant 's conditions of detention were satisfactory and met the established norms . In particular , cell no . CARDINAL measured QUANTITY . m , while cell no . CARDINAL measured QUANTITY m. The cells were illuminated artificially . The temperature ranged CARDINAL and the humidity was “ subjectively normal ” . He conceded that the applicant 's personal belongings had been taken from him unlawfully , but noted that they had been returned to him on DATE . He also acknowledged that the applicant 's handcuffing on his way to the exercise yard had been unlawful and informed the applicant that the warders had been disciplined .

In DATE and DATE the applicant and his counsel lodged several more complaints with the supervising prosecutor . They alleged that it was very cold in cell no . CARDINAL as the window had no glazing . They also complained about the insufficient outdoor exercise allowed to the applicant and about his handcuffing while he was in the exercise yard . They further claimed that the amount of food was inadequate , that the applicant was not allowed to buy food in the facility 's shop and that food parcels from relatives were limited to QUANTITY . They complained that on several occasions the applicant had not been given any food during DATE and that sometimes the warders withheld food parcels brought by the applicant 's wife . Lastly , the applicant alleged that his personal television set had been taken away from him .

On DATE the governor of detention facility no . IZ-CARDINAL/CARDINAL replied that the applicant 's conditions of detention were satisfactory .

In reply to further complaints by the applicant , the supervising prosecutor acknowledged on DATE that the duration of his DATE outdoor exercise had been unlawfully restricted . However , he considered that it was necessary to handcuff the applicant when he was taken to the exercise yard , in order to protect the escorting officers . He also informed the applicant that owing to staff shortages it was not possible to provide him with hot food DATE .

On DATE the applicant complained to the supervising prosecutor that it was stifling inside his cell and that it was swarming with rats and mice . He further alleged that the toilet was not separated from the living area and that when using the toilet he was in full view of the warders , many of whom were women . It appears that the complaint remained without reply .

On DATE counsel for the applicant complained to the supervising prosecutor that on DATE a piece of polythene which he had been using to insulate the window had been taken away from him and that it was cold in his cell because the window had no glazing . The prosecutor of ORG requested an explanation from the head of the penitentiary department of LOC . In his letter of CARDINAL DATE the head of the penitentiary department stated that the windows in the remand centre were currently being glazed , and that therefore the inmates were not provided with polythene .

In DATE the applicant was diagnosed with arthritis .

On DATE and DATE he was examined by the doctor of remand centre no . IZ-CARDINAL/CARDINAL , who prescribed anti - inflammatory treatment for arthritis .

On DATE the applicant was taken to prison hospital TIME in GPE ( ORG ИК-CARDINAL ) for an examination . He was diagnosed with arthropathy ( a joint disease ) of the knee , ankle and wrist joints . On DATE he was discharged .

From DATE to DATE and from DATE the applicant underwent further examinations in prison hospital IK-CARDINAL . He was diagnosed with infectious allergic polyarthritis .

On DATE and DATE the applicant complained to the remand centre doctor of pain , swelling and stiffness in the joints of his upper and lower limbs . The doctor confirmed the previous diagnosis and prescribed anti - inflammatory pills for arthritis .

In DATE the applicant was examined by the remand centre doctor , who prescribed intra - muscular injections for DATE . The medical record states that CARDINAL injections were administered DATE .

On DATE the applicant again complained of pain and swelling in his arm , elbow , finger , knee and ankle joints . The remand centre doctor noted that the applicant 's disease was “ long - standing and persistent ” and referred him for examination to the prison hospital .

On DATE the applicant was admitted to prison hospital IK-CARDINAL , where he remained until DATE . He was diagnosed with rheumatoid arthritis and slow - progressing seronegative polyarthritis . The doctors recommended that the applicant stay away from cold and damp places , be examined by a rheumatologist and follow in - patient treatment .

On DATE the applicant was examined by PERSON , a rheumatologist from ORG . She recommended a high - calorie diet and avoidance of exposure to cold . She noted that it was unacceptable to restrict the applicant 's food intake . She also prescribed treatment . In particular , she recommended that the applicant should take anti - inflammatory pills and apply ointments on a continuous basis and should follow a DATE course of hepatoprotective treatment . Regular blood counts and X - ray testing should be performed . It was , however , premature to prescribe any disease - modifying drugs ( базисная терапия ) or hormone therapy . She concluded that further medical tests and constant medical supervision were necessary .

According to the applicant , he did not receive any treatment except analgesics ( painkillers ) and several injections because the medical unit at the remand centre did not have the necessary medication .

In reply to the complaints of insufficient medical assistance , the governor of remand centre no . IZ-CARDINAL/CARDINAL stated in writing on DATE that the applicant did not need in - patient treatment . As the applicant did not suffer from any serious diseases , his wife was not allowed to send him food parcels exceeding QUANTITY per month .

On DATE the applicant was examined by doctors from the medical department of ORG . They noted in the medical records that the applicant 's health was satisfactory and that he was receiving vitamins . The doctors also noted that further examinations in the prison hospital were necessary .

On DATE a deputy head of the medical department of ORG informed the applicant 's wife that the medical department had conducted an inquiry and established that the applicant was receiving sufficient and appropriate treatment for his disease .

On DATE the applicant 's wife complained to the medical department of ORG that the applicant was not receiving any medicine except painkillers . As a result of the insufficient treatment provided , his disease had progressed .

On DATE a deputy head of the medical department of ORG replied that the applicant 's state of health was satisfactory .

NORP In DATE the applicant underwent an X - ray examination .

DATE . On DATE the applicant was for a second time examined by the rheumatologist PERSON The applicant complained of persistent pains in his joints . PERSON noted stiffness and swelling of certain joints and limited movement of the right elbow joint and the left wrist joint . She further observed that her previous recommendations had not been followed and issued the same recommendations and prescriptions as before . She further prescribed local hormone injections once every DATE until the inflammation in the joints had lessened . Finally , she recommended that blood and urine tests should be performed DATE .

On an unspecified date ( the date indicated in the medical records is unreadable ) the applicant was examined by the remand centre doctor . He complained of weakness , loss of weight and aggravation of the pain in his joints . The doctor noted in the medical records that the applicant refused to take anti - inflammatory pills and insisted that he needed intra - articular injections . The doctor recommended that the applicant be taken to the prison hospital for an examination .

From DATE and from CARDINAL to CARDINAL DATE the applicant underwent an examination and followed treatment in prison hospital DATE .

NORP In reply to further complaints of inadequate treatment lodged by the applicant 's wife , the head of the medical department of ORG stated on DATE that the applicant 's state of health was satisfactory . He noted that the rheumatologist had recommended that the applicant take anti - inflammatory medicines , apply ointments and receive intra - articular injections . The applicant had refused to take the anti - inflammatory medicines prescribed to him . Intra - articular injections were not possible because there were no medical officers in the detention facility trained in administering them . The head of the medical department of ORG concluded that the applicant was receiving adequate and sufficient treatment .

On DATE PERSON , a rheumatologist from ORG no . CARDINAL , examined the applicant 's medical records and concluded that he was suffering from rheumatoid arthritis . The report continued as follows :

“ [ Rheumatoid arthritis ] is a serious disease causing marked pain in the joints and muscles and restricting the function of the affected joint . It is progressive and incurable . The disease requires constant anti - inflammatory treatment to lessen the pain and inflammation in the joints and muscles . It also requires specific treatment with disease - modifying drugs to slow down the process of destruction of the joints . [ The applicant ] has not received any disease - modifying drugs .

Owing to the destruction of the joint structures and muscle atrophy , this disease leads to disability within DATE of its onset , depending on the rate of progression .

In cases where other internal organs are affected by the disease ( this is possible in the absence of adequate treatment ) it may progress more rapidly .

The analysis of the submitted materials reveals that at present [ the applicant ] is affected by an active inflammation process which has resulted in loss of function in the joints .

I recommend an examination ... which is necessary in order to prescribe adequate treatment .

[ The applicant ] requires wholesome food rich in protein and vitamins . Damp and cold places are strongly contraindicated . ”

On an unspecified date the applicant lodged a civil claim against remand centre no . IZ-CARDINAL/CARDINAL , complaining about the allegedly insufficient medical assistance afforded to him .

On DATE ORG of PERSON noted that the applicant suffered from arthritis . The management of the remand centre had an obligation to organise a medical examination of the applicant in order to determine the gravity of his medical condition . It had however failed to do so . Moreover , given that arthritis was a serious disease requiring a high - calorie diet , it had been unlawful to limit food parcels from relatives to QUANTITY per month . However , the court rejected the applicant 's claim , finding that it was without substance as he was no longer being held in remand centre no . IZ-CARDINAL/CARDINAL .

On DATE the applicant was granted disability status .

DATE . The applicant appointed PERSON , a lawyer with ORG , to represent him before ORG and ORG . On DATE PERSON applied to the President of ORG for permission to visit the applicant . On DATE her request was refused . No reasons for the refusal were provided .

On DATE PERSON for a second time asked the President of ORG to issue her with a visitor 's permit . By letter of DATE a judge of ORG refused to admit PERSON as counsel for the applicant . He noted that at that stage of the proceedings the admission of counsel was within the competence of ORG .

In DATE PERSON lodged a new request for a visitor 's permit with the President of ORG . The request indicated that PERSON was the applicant 's representative before ORG . It appears that the request was not examined .

On DATE and CARDINAL DATE the applicant wrote to the President of ORG , informing him that he wanted to meet PERSON in order to prepare an application to ORG . On an unspecified date in DATE ORG issued PERSON with a visitor 's permit .

On DATE , DATE and DATE PERSON came to visit the applicant . However , the management of remand centre no . IZ-CARDINAL/CARDINAL refused to let her in . They did not give any reasons for the refusal .

NORP In reply to PERSON complaint , the penitentiary department of ORG informed her on DATE that she had not been appointed to represent the applicant in the criminal proceedings and that her legal status was unclear . Therefore , she was not allowed to visit the applicant .

By letter of CARDINAL DATE a deputy President of ORG informed the penitentiary department of GPE that the applicant 's conviction had become final and that the visitor 's permit issued to PERSON was no longer valid .

On DATE the GPE regional prosecutor 's office informed PERSON that she had been denied access to the applicant because she had not produced a judicial decision by which she had been admitted to act as counsel for the applicant .

The applicant challenged the refusals before ORG of PERSON . On DATE ORG found that PERSON had a power of attorney authorising her to represent the applicant 's interests before ORG and possessed a valid visitor 's permit issued by a competent court . It ordered the management of detention facility no . IZ-CARDINAL/CARDINAL to organise the applicant 's meetings with PERSON .

No meetings were organised . On DATE the bailiffs ' service discontinued the enforcement proceedings , finding that it was no longer possible to organise the meetings as the applicant had been transferred to a correctional colony .

The Code of Criminal Procedure of the NORP Federalist Socialist Republic ( PERSON of DATE , in force until DATE “ the old CCrP ” ) provided that criminal cases were tried at first instance by a single judge or by a bench consisting of a professional judge and CARDINAL lay judges . In their judicial capacity lay judges enjoyed the same rights as professional judges ( DATE ) .

By virtue of LAW of DATE ( in force until DATE , when the LAW of GPE was adopted ) , lay judges were elected during meetings of citizens at their place of work or residence for a term of DATE .

Under LAW of LAW of DATE on the ORG judicial system ( “ ORG ” ) ( the relevant provisions remained in force until DATE , date of the official publication of ORG on lay judges at the federal courts of general jurisdiction in GPE ) , lay judges at the regional courts were to be elected by ORG for a term of DATE .

On DATE the LAW of GPE was adopted . It does not provide for any procedure for the selection of lay judges .

Articles DATE and CARDINAL of the LAW list the powers of the President . They do not mention any power to appoint lay judges or to prolong their term of office .

Article CARDINAL provides that the President may issue decrees and orders . Decrees and orders of the President have binding force in the entire territory of GPE . They may not be contrary to the LAW or federal laws .

Part CARDINAL of LAW contains provisions aimed at preserving the continuity of the judiciary and other ORG bodies during the transitional period . In particular , paragraph CARDINAL establishes that until the adoption of a federal law setting out the procedure for the examination of cases by a jury , the previous procedure for examination of that category of cases by the courts should be preserved .

On DATE the acting President of GPE issued Decree no . CARDINAL , which read as follows :

“ Relying on DATE and paragraph CARDINAL of Part CARDINAL of the LAW of GPE , [ I ] order that :

The lay judges at the district ( town ) courts shall continue their service until the adoption of the relevant federal law .

NORP The executive authorities of the constituent elements of GPE shall , if necessary , organise by - elections of lay judges for the district ( town ) courts at general staff meetings , general meetings and gatherings of citizens at their places of residence . ”

On DATE ORG examined an application by PERSON . who submitted , in particular , that the presidential decree was incompatible with the LAW . ORG found that it had no competence to verify the compatibility of presidential decrees with the LAW at citizens ' request . It noted , however , that the procedure for examination of criminal cases by a judicial bench including lay judges was established by the old ORG and ORG . Those acts remained in force in accordance with paragraph CARDINAL of Part CARDINAL of the LAW . It was therefore necessary to preserve the system of lay judges for the time being .

On DATE LAW no . CARDINAL on the judicial system of GPE ( “ LAW ” ) entered into force . By virtue of LAW judicial authority in GPE was vested exclusively in courts comprising professional judges , jurors , lay judges and arbitration judges appointed or elected in accordance with the procedure laid down by federal law .

Section CARDINAL of the Judicial System Act provided that individuals could participate as jurors , lay judges and arbitration judges in the administration of justice in accordance with the procedure established by federal law .

Section CARDINAL established that lay judges elected to serve in the courts DATE should remain in office until the expiry of the term of office for which they had been elected .

On DATE the President of GPE issued Decree no . CARDINAL , which , in so far as relevant , read as follows :

“ Having regard to the [ fact ] that LAW on the judicial system of GPE has come into effect , for the purpose of ensuring the activities of the courts of general jurisdiction in GPE and for the judicial protection of the rights of individuals , and relying on LAW , [ I ] order that :

The lay judges at ... regional courts shall continue their service until the adoption of the federal law on the procedure for appointment ( election ) of lay judges . ”

On DATE ORG examined an application by a PERSON , who claimed that the presidential decree was incompatible with the LAW . ORG found that , in accordance with LAW , presidential decrees must not be contrary to the LAW or federal laws . The decree contested by PERSON prolonged the term of office of lay judges elected earlier . It did not establish any procedure for calling lay judges to sit in particular criminal cases which would differ from the procedure prescribed by federal law . In particular , it did not contain any provisions which would allow lay judges to be called for service on a regular basis and for periods surpassing DATE . The complaint was declared inadmissible .

On DATE the Federal Law on lay judges at the federal courts of general jurisdiction in GPE ( “ the LAW ” ) came into force . Under LAW ) of the LAW , lay judges were persons authorised to sit in civil and criminal cases as non - professional judges .

Section CARDINAL provided that lists of lay judges were to be compiled for every district court by local self - government bodies ; the lists were subject to confirmation by the regional legislature . The confirmed list was to be submitted to the relevant district court DATE before the expiry of the term of office of the lay judges on the previous list . The term of office of lay judges was DATE .

Section CARDINAL determined the procedure for the selection of lay judges at the regional courts . It provided that the President of the regional court was to draw names at random from the overall list of lay judges assigned to the district courts situated on the territory of that region . The number of lay judges assigned to every professional judge should be CARDINAL times as many as the number needed for a hearing . From the list of lay judges assigned to him the professional judge was to select CARDINAL lay judges by lot to sit in a particular case .

Under the terms of section CARDINAL , lay judges could only be called for service in a regional court once a year , for the entire duration of the court proceedings in a particular case .

ORG . The ORG of ORG of GPE issued on DATE a Regulation on the procedure for the selection of lay judges . The Regulation provided that the President of a district court should draw at random from the general list of lay judges CARDINAL names for each judge . The random selection could be made by any method ( for example by random computer selection , or by manual selection of each fifth name for CARDINAL judge , each seventh name for another judge , etc . ) . The lay judges for a particular case were to be drawn by lot by the judge to whom the case had been assigned . Each court was obliged to keep records of all random selections and drawings by lot .

The Regulation further referred to section CARDINAL of LAW and LAW and provided that , given that no lists of lay judges had been compiled by the date of the entry into force of LAW , the acting lay judges should remain in office until the submission of new lists of lay judges to the courts .

Under the decree of the acting President of GPE issued on DATE , lay judges serving in the courts of general jurisdiction were authorised to remain in office until the courts received the new lists of judges confirmed by the regional legislatures .

On DATE ORG examined an application by a PERSON , who submitted , in particular , that the presidential decree was incompatible with the LAW . ORG found that it had no competence to verify the compatibility of presidential decrees with the LAW at citizens ' request .

On DATE the Code of Criminal Procedure of GPE ( Law no . CARDINAL-FZ of DATE “ the new CCrP ” ) entered into force . It abolished the system of lay judges as from DATE .

On DATE the President of GPE issued Decree no . CARDINAL , by which , referring to the entry into force of LAW , he declared his Decrees no . CARDINAL of DATE , no . CARDINAL of DATE and no . CARDINAL of DATE to be no longer in force .

The new ORG provides that advocates authorised by a bar association are admitted to act as counsel in criminal proceedings . At the defendant 's request the judge may admit a close relative or any other person to act as counsel ( Article CARDINAL ) . Counsel may visit the suspect or the accused in private and in confidence . The frequency or duration of the visits may not be limited ( Articles CARDINAL § CARDINAL ( CARDINAL ) and CARDINAL § CARDINAL ( CARDINAL ) ) .

Federal Law no . CARDINAL of DATE on the detention of persons suspected or accused of criminal offences ( “ the LAW ” ) provides that a suspect or an accused is entitled to receive visits from his counsel from the moment he or she is arrested . Visits are conducted in private and in confidence . Their duration or frequency may be limited only in those cases established by LAW . Counsel may visit a detainee on presentation of his or her bar certificate and a mandate to represent the accused 's interests issued by the bar association ( ордер юридической консультации ) . It is prohibited to require any other documents . If a non - advocate has been admitted to act as counsel , visits are permitted on presentation of the relevant court decision and an identity card ( section CARDINAL ) .

The Standard Minimum Rules for the Treatment of Prisoners , adopted by ORG on ORG and the Treatment of Offenders , held in GPE in DATE , and approved by ORG by its resolution CARDINAL C ( XXIV ) of DATE and CARDINAL ( LXII ) of CARDINAL DATE , provide , in particular , as follows :

“ CARDINAL . All accommodation provided for the use of prisoners and in particular all sleeping accommodation shall meet all requirements of health , due regard being paid to climatic conditions and particularly to cubic content of air , minimum floor space , lighting , heating and ventilation .

In all places where prisoners are required to live or work ,

( a ) The windows shall be large enough to enable the prisoners to read or work by natural light , and shall be so constructed that they can allow the entrance of fresh air whether or not there is artificial ventilation ;

( b ) Artificial light shall be provided sufficient for the prisoners to read or work without injury to eyesight .

The sanitary installations shall be adequate to enable every prisoner to comply with the needs of nature when necessary and in a clean and decent manner .

Adequate bathing and shower installations shall be provided so that every prisoner may be enabled and required to have a bath or shower , at a temperature suitable to the climate , as frequently as necessary for general hygiene according to DATE and geographical region , but at least once a week in a temperate climate .

All pans of an institution regularly used by prisoners shall be properly maintained and kept scrupulously clean at all times .

Prisoners shall be required to keep their persons clean , and to this end they shall be provided with water and with such toilet articles as are necessary for health and cleanliness .

Every prisoner shall , in accordance with local or national standards , be provided with a separate bed , and with separate and sufficient bedding which shall be clean when issued , kept in good order and changed often enough to ensure its cleanliness .

( CARDINAL ) Every prisoner shall be provided by the administration at the usual TIME with food of nutritional value adequate for health and strength , of wholesome quality and well prepared and served .

( CARDINAL ) Drinking water shall be available to every prisoner whenever he needs it .

( CARDINAL ) Every prisoner who is not employed in outdoor work shall have TIME of suitable exercise in the open air DATE if the weather permits .

The relevant extracts from the General Reports prepared by ORG for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment ( ORG ) read as follows :

“ CARDINAL . A satisfactory programme of activities ( work , education , sport , etc . ) is of crucial importance for the well - being of prisoners . ... [ P]risoners can not simply be left to languish for DATE , possibly DATE , locked up in their cells , and this regardless of how good material conditions might be within the cells . The ORG considers that one should aim at ensuring that prisoners in remand establishments are able to spend a reasonable part of DATE ( TIME or more ) outside their cells , engaged in purposeful activity of a varied nature ...

Specific mention should be made of outdoor exercise . The requirement that prisoners be allowed TIME of exercise in the open air every day is widely accepted as a basic safeguard ... It is also axiomatic that outdoor exercise facilities should be reasonably spacious ...

Ready access to proper toilet facilities and the maintenance of good standards of hygiene are essential components of a humane environment . ”

“ CARDINAL . A prison 's health care service should at least be able to provide regular out - patient consultations and emergency treatment ( of course , in addition there may often be a hospital - type unit with beds ) . ... Further , prison doctors should be able to call upon the services of specialists .

Out - patient treatment should be supervised , as appropriate , by health care staff ; in many cases it is not sufficient for the provision of follow - up care to depend upon the initiative being taken by the prisoner .

The direct support of a fully - equipped hospital service should be available , in either a civil or prison hospital .

Whenever prisoners need to be hospitalised or examined by a specialist in a hospital , they should be transported with the promptness and in the manner required by their state of health .

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 . ”

“ CARDINAL . The ORG frequently encounters devices , such as metal shutters , slats , or plates fitted to cell windows , which deprive prisoners of access to natural light and prevent fresh air from entering the accommodation . They are a particularly common feature of establishments holding pre - trial prisoners . The ORG fully accepts that specific security measures designed to prevent the risk of collusion and/or criminal activities may well be required in respect of certain prisoners . However , the imposition of measures of this kind should be the exception rather than the rule . This implies that the relevant authorities must examine the case of each prisoner in order to ascertain whether specific security measures are really justified in his / her case . Further , even when such measures are required , they should never involve depriving the prisoners concerned of natural light and fresh air . The latter are basic elements of life which every prisoner is entitled to enjoy ; moreover , the absence of these elements generates conditions favourable to the spread of diseases and in particular tuberculosis .

The ORG recognises that the delivery of decent living conditions in penitentiary establishments can be very costly and improvements are hampered in many countries by lack of funds . However , removing devices blocking the windows of prisoner accommodation ( and fitting , in those exceptional cases where this is necessary , alternative security devices of an appropriate design ) should not involve considerable investment and , at the same time , would be of great benefit for all concerned . ”


Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time)

Alvina Gyulumyan;Johannes Silvis;Kristina Pardalos

The applicant was born in DATE and lives in GPE .

On DATE she lodged a criminal complaint against her husband accusing him of stealing from their common household . A civil claim was joined to the complaint .

On DATE the prosecution brought the case to court on charges of theft between spouses .

On DATE the ORG convicted the defendant to DATE and CARDINAL months’ imprisonment and awarded the applicant CARDINAL NORP lei ( PERSON ) – around MONEY ( ORG ) – as pecuniary damage .

The judgment became final at first instance as no appeal had been filed against it .

Subsequently , the defendant appealed on points of law outside the statutory time - limit alleging that the first - instance court had not observed the guarantees of a fair trial in his respect . He claimed that he had been convicted in absentia and that he had not benefited from legal representation .

On DATE ORG allowed the appeal . It thus quashed the first - instance judgment and remitted the case to the lower court for re - trial .

On DATE the defendant was convicted to DATE imprisonment for breach of trust between spouses . The applicant was awarded PERSON CARDINAL ( around EUR CARDINAL ) as pecuniary damage . Both the defendant and the applicant appealed on points of law .

On DATE the applicant withdrew her complaint as well as her appeal on points of law .

On DATE the Galaţi ORG granted the motion of withdrawal of charges and thus terminated the criminal proceedings . The judgment became final .


Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses (domestic proceedings) - claim dismissed

The applicant was born in DATE and lives in GPE , GPE .

On DATE the ORG - operative “ PERSON ” lodged a compensation claim with ORG ( Sąd Rejonowy ) claiming the amount of CARDINAL old Polish zlotys from the applicant for unpaid interest on a loan .

On DATE and CARDINAL DATE the court held hearings . On DATE the ORG gave judgment . The applicant appealed .

On DATE ORG ( PERSON ) quashed the contested judgment and referred the case to the first - instance court .

On DATE ORG held a hearing .

On DATE the plaintiff increased the amount of the claim . Accordingly , the case had to be transmitted to ORG , which was now competent to examine it .

The court held hearings on the following dates : CARDINAL DATE , DATE , DATE , CARDINAL DATE , DATE and DATE .

On DATE an expert submitted his opinion to the court .

On DATE ORG gave judgment . The applicant appealed . On DATE the ORG ( Sąd Apelacyjny ) dismissed his appeal and upheld the first - instance judgment .

On DATE the applicant asked ORG to be served with a copy of the judgment . On DATE it was served on the applicant .

On DATE the applicant lodged a cassation appeal with ORG . On DATE ORG rejected his appeal , considering that the applicant had failed to satisfy the procedural requirements set out in NORP law .


ASHWORTH AND OTHERS v. THE UNITED KINGDOM

The applicants are NORP citizens , born in DATE , DATE , DATE and DATE respectively . They live near GPE aerodrome , GPE . They were represented before the ORG by Mr PERSON , a lawyer practising in GPE , GPE . The Government were represented by their agent , Mr PERSON , of ORG , GPE .

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

GPE aerodrome is a privately owned and operated aerodrome , most of which lies within FAC . CARDINAL full - time and CARDINAL part - time employees , of various companies , work there . Current activity at GPE comprises flights by fixed wing aircraft and helicopters , maintenance and testing , pilot training and aerobatics . The most common aircraft are the Piper CARDINAL and Cessna CARDINAL , which are QUANTITY light propeller aircraft with fixed undercarriages . The most common helicopters are ORG .

An Air Traffic Zone ( ORG ) is set aside exclusively for the safe operation of aircraft using the aerodrome . It extends for a radius of QUANTITY around the aerodrome , and it is only within the ORG that the aerodrome operator has supervision of the airspace and the aircraft within it . Pilots must advise the aerodrome of their entry into the ORG . Because of its proximity to ORG and FAC airports , the circuit height at GPE is limited to QUANTITY .

The aerodrome currently has CARDINAL runways , a QUANTITY asphalt runway which runs north - east / south - west , and a QUANTITY grass runway which runs north - west / south - east .

Helicopters have used the aerodrome since DATE . Most ( PERCENT ) of the large helicopter activities are commercial , and include training , maintenance and testing .

Aircraft flights are divided roughly equally between commercial and leisure purposes ; many flights in each category involve pilot training , with basic training most often carried out in fine weather .

Aerobatic flying takes place on average once a fortnight during DATE .

On DATE , the applicants’ lawyer wrote to the Secretary of ORG on behalf of ORG ( “ PERSON ” ) , an association with CARDINAL members . The lawyer formally requested that the Minister should exercise the powers given to him under LAW DATE ( “ the DATE LAW ) to specify ORG for the purposes of that section , and then have ORG re - licence the airfield taking into consideration the need to minimise so far as reasonably practicable any adverse effects on the environment and disturbance to the public .

On DATE , PERSON of ORG of ORG and the Regions ( “ DETR ” ) replied to the lawyer that he was not satisfied that specification or designation of GPE under either LAW ( for the purposes of LAW ) of LAW would be appropriate . He indicated that in reaching this view he had taken into account the aerodrome ’s procedures for noise mitigation including their implementation , and he indicated that the aerodrome had also been visited by officers from ORG of the DETR .

Mr PERSON further stated that he was not persuaded that there was significant or serious weakness in the environmental policies of the aerodrome or in their implementation . He concluded that the disturbance from aircraft at the aerodrome was not such as to justify specification under LAW . Mr Grindrod indicated that designation of GPE aerodrome under LAW of LAW for the purposes of LAW would not accord with ORG general policy that noise issues should so far as possible be resolved at local level . He stated that , given that he had seen no evidence to persuade him that GPE aerodrome was not being managed in an environmentally responsible manner , he did not consider that there was evidence of particular circumstances at GPE such as would justify the Secretary of ORG intervening to stipulate noise mitigation measures there as an exception to this general policy .

PERSON and PERSON : PERSON and PERSON moved to the current address in GPE , GPE , in DATE . Mr LOC died on DATE .

The Ashworths’ house is QUANTITY from the airfield perimeter fence , and the end of their garden is QUANTITY from the airfield . The part of the airfield which is closest to the Ashworths’ property was , until DATE , the area where most of the airfield - based helicopter activity , and all of the helicopter testing , including compass testing , took place . ORG testing involves a helicopter hovering QUANTITY above the ground for TIME . It was not unusual for a single helicopter to be operating continuously within the area of the airfield closest to the Ashworths’ property for TIME . Occasionally , CARDINAL helicopter is involved simultaneously .

PERSON and PERSON found that the noise generated by the operation of the airfield at GPE was not merely intrusive , but after a short time became absolutely intolerable . The applicants have submitted a report which includes the result of tests carried out by ORG in which they recorded the noise levels in the garden of the Ashworths’ house from DATE . The report indicates that TIME background noise levels without aviation activity are CARDINAL dB(A ) , which is a level typically found in a semi - rural location such as the area in which the property is located . It notes that it is generally accepted that noise excursions which give an PERSON reading of CARDINALdB(A ) or more above background may generate justifiable complaints , and states that this situation was frequently recorded at the Ashworths’ house . Further , the report states that individual GPE max . levels generated by both fixed - wing and helicopter aircraft were unexpectedly high , with typical GPE max . values of CARDINAL to CARDINAL dB(A ) for aircraft and helicopters were recorded , with some excursions in excess of CARDINAL dB(A ) . Finally , the report indicates that the audio recording revealed that helicopter activities lasted for TIME at a time , compared with fixed - wing flights which usually passed overhead in TIME .

The applicants contend that the level of noise in DATE is much greater than that recorded in DATE , which is DATE . Nevertheless , they contend that the results of the tests indicate that the level of noise experienced by the PERSON is such as to amount to a nuisance , and that it is only by virtue of the operation of the relevant legislation , and in particular LAW ) of LAW , that it is not actionable .

It is estimated that the value of the Ashworths’ property has been reduced by CARDINAL as a result of the existence of the airfield and activity at current levels .

Mr PERSON : Mr PERSON lives in ORG , GPE . He has lived at his present address since DATE . He lives with his wife .

Mr PERSON ’s property is QUANTITY from GPE . He estimates that on average , CARDINAL aircraft passes his property TIME . The maximum height of the aircraft is QUANTITY due to the proximity of GPE aerodrome . If the wind is blowing towards Mr PERSON ’s property , he finds the noise from take - off makes conversation in the garden , and therefore social use of the garden , impossible .

Aircraft on circuit usually pass slightly to the airfield side of Mr ORG ’s property , causing a serious and repetitive intrusion into their home and family life .

PERSON : PERSON has lived with her husband at her present address in GPE , GPE , since DATE .

PERSON property is QUANTITY to the east of GPE . She complains that the noise from the aircraft engines is very intrusive and intimidating . PERSON and her husband noted the frequency of flights on DATE and DATE . Their notes indicate that they were often able to read the numbers on the aircraft with the naked eye . The notes show that during certain periods at DATE the frequency of flights close to the house reached CARDINAL every minute to CARDINAL - and - a - half minutes . PERSON states that during DATE , flights are less frequent . She complains that the aircraft fly low over her house and garden , and that they do not keep to the circuit prescribed by the aerodrome when taking off or landing , or practising approaches to landing .

PERSON works from home , and she is therefore adversely affected by the noise from the airfield during DATE as well as at DATE .

Mr Holyoake : PERSON Holyoake has lived with his wife and son at his present address in ORG , GPE , since DATE .

PERSON Holyoake complains of “ incredible ” noise resulting from low flying aircraft completing circuits of CARDINAL minutes’ duration on a regular basis . He states that often at DATE this results in an aircraft every CARDINAL or two minutes flying over his house and garden , which creates an impossible situation outside the house and can be heard inside the house . The maximum height of the aircraft flying from ORG and the circuit which they may take is limited by the proximity of GPE airfield . Aircraft flying from GPE often take a low flight path , which increases the noise at ground level . Mr Holyoake states that aircraft from ORG regularly fly well below QUANTITY ) and sometimes at CARDINAL this height . He complains that the position is exacerbated by the fact that aircraft use CARDINAL large oak trees in the grounds of his house , which is positioned on the top of a hill , as markers when they come in to land , and therefore continuously take this route when landing . Helicopters use the same circuit , and fly at lower heights . Mr Holyoake states that the resultant high noise and resonance levels have caused earaches and headaches , particularly after regular exposure when circuits are carried out .

Section CARDINAL of LAW DATE ( LAW ) provides for designation of aerodromes by the Secretary of ORG . Where an aerodrome has been designated under LAW ( CARDINAL ) , the management of the aerodrome is required to consult organisations representing the interests of local people ( amongst others ) “ with respect to any matter concerning the management or administration of the aerodrome which affects their interest ... ” . ORG , published in DATE , state that the aim of consultation is “ to provide an effective forum for the discussion of all matters concerning the development or operation of the aerodrome , which have an impact on ... people living and working in the surrounding area ” , and to “ provid[e ] an opportunity to reconcile any differences of view that may arise , and [ to resolve ] difficulties through agreed voluntary action ” .

GPE aerodrome has been designated under LAW .

Sections CARDINAL and CARDINAL of the DATE LAW specific noise and/or use control measures .

Where an aerodrome has been specified under LAW , ORG is under a duty “ to have regard to the need to minimise so far as reasonably practicable - ( a ) any adverse effects on the environment , and ( b ) any disturbance to the public , from noise , vibration , atmospheric pollution or any other cause attributable to the use of aircraft for the purpose of civil aviation ” .

No aerodromes have been specified under LAW , although the Secretary of ORG has indicated to FAC that he is “ minded ” to specify it .

Where the Secretary of ORG has designated aerodromes under Section CARDINAL of LAW , the operator of the aerodrome is required to comply with requirements set out in the notice relating to noise and vibration connected with the taking off or landing of aircraft .

Only the major GPE airports ( FAC , GPE and GPE ) have been designated under LAW .

Section CARDINAL of the DATE Act permits the Secretary of ORG to make grants towards the cost of sound - proofing buildings near an aerodrome which has been designated under that section .

Section CARDINAL of the DATE Act excludes civil liability in trespass or nuisance in respect of flights of aircraft over property provided that the provisions of ORG have been complied with .

The Rules of the Air Regulations CARDINAL made under LAW ( No . CARDINAL ) Order DATE apply to all pilots . They prohibit low flying ( generally , flying below a height of QUANTITY ( QUANTITY ) above the highest fixed object within QUANTITY of the aircraft or helicopter ( Rule CARDINAL(CARDINAL)(a ) ) , or QUANTITY ) to any person , vessel , vehicle or structure : Rule CARDINAL(CARDINAL)(e ) ) . However , the prohibition in Rule CARDINAL(CARDINAL)(e ) does not apply to aircraft which are taking off or landing ( Rule CARDINAL(CARDINAL)(d ) ) ; nor does it apply to practising approaches to landing at aerodromes ( Rule CARDINAL(CARDINAL)(a ) ) , as long as this is “ confined to the airspace customarily used by aircraft when landing or taking off in accordance with normal aviation practice at the aerodrome concerned ” ( Rule CARDINAL(CARDINAL)(b ) ) .

The general planning legislation in ORG DATE ( as amended ) is applicable to airports . Where planning consent is necessary , the local authority ( in the first place ) must determine the application in the light of Planning Policy Guidance issued by central Government . PERSON relates to Planning and Noise . Certain operational developments are excluded by ORG Order DATE from the need for planning permission , although even in those cases the local authority must be consulted . For certain types of development , such as applications to construct airports with a basic runway length of QUANTITY or more , environmental impact assessments must be submitted ( Town and Country Planning ( Environmental Impact Assessment)(England and GPE ( SI CARDINAL/CARDINAL ) .

In a ORG published in DATE , the ORG asked for comments on a number of proposals connected with the control of aircraft noise , including proposals to give aerodromes power to establish noise control arrangements , and proposals to compel aerodromes to prepare noise amelioration schemes . The conclusions drawn from the consultation paper , together with procedures arising from a proposed ORG Directive Com DATE ( CARDINAL ) , will be included in , or published with , a ORG which is expected to be published at DATE .

The current aerodrome rules at GPE date from DATE , and are set out in a document entitled “ ORG and Procedures ” , and in the “ GPE Rules ” .

The circuit applied at GPE follows a rectangular path around the aerodrome measuring QUANTITY . The height of circuit flying is QUANTITY , which is lower than some aerodromes , but enables aircraft to fly a smaller circuit than if they had to fly higher . The circuit is designed to be as small as practically possible to avoid flying over sensitive residential areas . CARDINAL aircraft are permitted to fly circuits at any CARDINAL time .

In connection with engine failure practice ( which involves throttling the engine back in the circuit and returning it to full power TIME ) , the rules draw attention to the fact that pilots can not be prosecuted for low flying whilst landing or taking off in according with normal aviation practice , but that they may commit an offence if they deliberately go QUANTITY to a person or structure .

Runways are available for use TIME in DATE , and TIME and TIME in DATE . Twin - engined aircraft are not permitted to carry out circuit training after TIME at DATE .

Helicopters are not allowed to carry out hover training or circuit training on DATE or after TIME on DATE , and are restricted to TIME hovering followed by a circuit .

The Government state that alleged breaches of the rules are investigated by the aerodrome management , and the pilot is asked to explain his or her actions . The disciplinary regime includes written warnings , fines , requests for further training to be undertaken , and banning from using the aerodrome . CARDINAL pilot has been banned in DATE .

The applicants complain under LAW that the noise caused by low flying aircraft including aerobatic activity , and helicopters , particularly training and maintenance , amounts to an interference with their right to respect for their private and family lives , and their homes , and that it can not be justified under LAW because ORG does not serve important national economic interests .

The applicants identify a legitimate aim which might be put forward in the case of a small , privately owned and operated aerodrome such as GPE , that of allowing “ innocent passage ” for aircraft across people ’s property . They contend that a balance should be struck between this and the interference with the rights guaranteed under LAW . They complain that the fact that a bar on actions for nuisance is imposed by LAW , and in particular by LAW ) thereof , that the bar applies regardless of the time of DATE or night when the noise is made , and regardless of the level or type of noise made , and that there are no effective alternative mechanisms in place to prevent noise nuisance , means that no balance has been struck , in breach of LAW .

The applicants further contend that the fact that the DATE LAW prevents them from bringing an action in nuisance , together with the fact that there is no other remedy available to them for breach of LAW , amounts to a violation of LAW .

Finally , the applicants contend that the level of noise generated by ORG has serious potential effects on the value of their properties . The PERSON contend that this is particularly so in their case , as the noise has become significantly worse since they purchased the house in DATE . The applicants contend that this amounts to a violation of LAW No . CARDINAL .


The applicants , Mr PERSON and PERSON , are apparently nationals of GPE and GPE ( formerly GPE ) , who were born in DATE and DATE respectively , and live in the GPE . They are represented before the ORG by Mr PERSON , a lawyer practising in GPE ( GPE ) .

The facts of the case , as apparent from public information and the documents submitted by the applicants , may be summarised as follows . The applicants are NORP . They have been living in the GPE apparently since DATE . They applied for asylum in DATE ; ultimately , the dismissal in DATE of their appeal made the rejection of their asylum requests final .

The first applicant has been suffering increasingly from psychotic decompensation ever since DATE .

On DATE the first applicant was found guilty by ORG ( arrondissementsrechtbank ) of rape and abduction and sentenced to DATE and CARDINAL months’ imprisonment , DATE of which were suspended . ORG reasoning included the following :

“ On DATE the accused , together with NORP , deprived a woman called PERSON of her freedom and raped her . The victim was blindfolded , tied up , kicked , beaten and a burning cigarette was held to her back . In addition to this violence , she was threatened by being told that she would be murdered and by saying , close to the victim : ‘ What do you think PERSON , should we let her live for the children or shall we murder her’ . Eventually the CARDINAL accused left the victim tied and blindfolded on a lavatory . ORG is of the opinion that a rape such as this may be counted as CARDINAL of the most serious crimes known to us . After all , not only did this rape constitute a serious interference with the victim ’s integrity , but in addition she was threatened in such a way that it is readily imaginable that she must have feared for her life during and after the rape .

In setting the sentence ORG takes into account the fact that it appears from , in particular , the statement of the victim PERSON that the accused has had a minor part in the crime , compared to that of the co - accused NORP It was in fact NORP who committed the major part of the violence against the victim and who threatened the victim with death in various ways .

In setting the sentence , ORG also takes into account the psychiatric report of PERSON dated DATE , in which PERSON reaches the conclusion that the accused , at the moment when the facts charged were committed , was suffering from retarded mental development in the form of illiteracy and mental disturbances in the form of character - neurotic disturbances , depression and periodic alcohol abuse , with its inhibition - reducing effect on the accused ’s behaviour in the criminal situation , and that the accused ’s accountability for the crimes is thereby diminished . ORG accepts this conclusion as established fact . ”

It seems that this judgment was never appealed against and that the first applicant served a term of imprisonment .

In DATE the first and second applicants lodged requests for residence permits for themselves and their underage children , citing “ humanitarian reasons or , in the alternative , medical treatment ” .

On DATE the competent domestic authority , the Deputy Minister of ORG , rejected the first applicant ’s request . A residence permit on humanitarian grounds was refused in view of the above conviction . A residence permit for the purpose of medical treatment was refused for the following reasons :

“ Aliens wishing to undergo medical treatment in the GPE may be granted admission for that purpose subject to certain conditions . Pursuant to the policy conducted in this respect , temporary residence for the purpose of medical treatment is normally granted only if the GPE are the most appropriate country ( het meest aangewezen land ) in which to undergo that medical treatment .

The fact of the GPE being the most appropriate country may follow from the nature of the condition , a particular specialist treatment [ available ] in this country , or other factors by reason of which treatment elsewhere of the person concerned is less appropriate .

For this reason the medical advisor of ORG Bureau Medische Advisering ) of ORG has been asked for advice .

It appears from the report of the medical advisor , given in this case on DATE by the medical advisor of ORG , the content of which is to be deemed repeated and included here , that the person concerned [ i.e. the applicant ] is suffering from a psychotic disturbance . The person concerned has been undergoing treatment since DATE by a social - psychiatric nurse under the supervision of a psychiatrist . Treatment consists of talk therapy and periodic medication administered by injection and is lasting in nature . It is apparent , however , that such treatment is possible also in GPE . Various hospitals have psychiatrists who can treat the complaints both on an inpatient basis and on an outpatient basis . These possibilities are being extended further with international aid . Although the medicine ORG is not available in GPE , alternative antipsychotic medication is .

If the current course of treatment is stopped , this will cause an acute medical emergency but , in view of the possibilities of treatment in the country of origin , this treatment need not be discontinued upon return . That being so the GPE are not considered to be the most appropriate country for undergoing this medical treatment . ”

In a simultaneous but separate decision , the Deputy Minister declared the first applicant an undesirable alien in view of his conviction , and decided that any objections that might be lodged against his decisions would not suspend the applicants’ deportation .

The applicants objected . At the same time , they lodged an application to the President of ORG of GPE for a stay of their deportation pending a decision on their objection . They relied on the length of time they had already been living in the GPE . They also alleged that they were integrated into GPE society : in particular , CARDINAL of their children had been born in that country and spoke no other language than NORP . Finally , they also drew attention to the first applicant ’s mental health . The first applicant was at that time being treated as an inpatient for psychiatric problems ; the treatment he required was unavailable in GPE . He submitted a written statement by the psychiatrist who was treating him , to the effect that stress and radical change in his situation such as would result from his removal to GPE would jeopardise the progress thus far made . ORG was also placed on a report published by ORG ) , dated DATE , according to which “ severe and chronic mental illness and psycho - social disorders ” could not be satisfactorily treated in GPE .

Following a hearing on DATE , the President of ORG gave his decision in the case on DATE ( transmitted to the applicants on DATE ) . Refusing to order a stay of deportation , he decided at the same time to dismiss the objections . As to the length of time already spent in the GPE , it was found that this had been caused by the legal remedies pursued by the applicants , so that they could not derive any rights from this period . In addition , there were contra - indications in respect of the first and second applicants .

His reasoning concerning the first applicant ’s request for residence rights on medical grounds included the following :

“ As regards the residence permit for medical treatment of the [ first applicant ] , the President is of the opinion that the defendant [ i.e. the Deputy Minister ] has undertaken sufficient investigations before arriving at a decision . In so doing the defendant ’s medical advisor has obtained information from the sector administering treatment ( behandelend sector ) . The conclusion of the medical advisor on the basis of this investigation is that treatment of the [ first applicant ’s ] psychiatric complaints consists of talk therapy and medication administered by periodic injection . In addition , it has appeared that this treatment is permanent in nature . Finally , the medical advisor expresses the view that treatment for the [ first applicant ] is available in GPE , as is alternative medication .

The President is of the opinion that , although medical treatment of the [ first applicant ] will be difficult in the country of origin , it is not impossible . The permanently psychiatric condition of the [ first applicant ] might well deteriorate even in the GPE . It can not be decisive , in considering the [ first applicant ’s ] request , that the [ first applicant ] would be worse off in his country of origin than in the GPE . ”

For the remainder , it was found that the first applicant had been declared an undesirable alien ; the objection lodged against this declaration had been out of time , and the declaration had therefore become unappealable . That being so , the first applicant was not entitled to rely on compelling reasons of a humanitarian nature .

On DATE the ORG representative informed the ORG that the first applicant was being treated as an inpatient in a psychiatric hospital in GPE , GPE .

In DATE or DATE a multidisciplinary task force was set up , with the support of ORG , to prepare a strategic plan for improving the mental health care situation in GPE which was reported to be dire . In DATE this task force published a report containing proposals for significant improvements . Among these were the downsizing of an existing psychiatric institution in ORG , replacing much of its capacity with community - based care and improving the remaining part of the institution , and increasing the number of psychiatrists and support staff . These goals were to be achieved by DATE . The plan was submitted to UNMIK for approval by DATE .

A report published in DATE by the non - governmental organisation ORG ( MDRI ) entitled Not on the Agenda : Human Rights of People with Mental Disabilities in GPE , mentioned that the ORG institution was to be refurbished . It was , however , highly critical of conditions there and in other closed institutions , including the mental ward of ORG , and denounced insufficient staffing and violence among the patients .

In DATE UNMIK reported that the detention centre in PERSON / PERSON had started to provide proper care for mentally handicapped prisoners .

In DATE MDRI reported in several press releases critical of current developments that the refurbishment and extension of the ORG institution , undertaken at the expense of decentralised community - based services , had been nearly completed , and that a group of mental patients would be transferred to an institution in GPE itself .


Alvina Gyulumyan;Corneliu Bîrsan;David Thór Björgvinsson;Egbert Myjer;Ineta Ziemele

The applicant was born in DATE and was serving a prison sentence in ORG prison at the time of his application to the ORG .

On DATE the applicant was taken into custody by police officers from the Anti - Terrorist Branch of ORG on suspicion of membership of an illegal organisation the ORG ( ORG Party ) . According to the arrest report , the applicant resisted the arrest and the police officers had to use force to apprehend him .

On DATE the applicant was brought before the investigating judge at ORG , where he denied the allegations against him . The judge ordered the applicant 's detention on remand .

On DATE the applicant was examined by a doctor at ORG who noted that there was a restriction in the functioning of the right shoulder and elbow .

On DATE a doctor from ORG drew up a report , according to which there were numerous ecchymoses and lesions on the various parts of the applicant 's body and there was a reduced functioning of the right arm .

In a further report dated DATE , it was concluded that the injuries on the applicant 's body rendered him unfit for work for DATE .

On CARDINAL DATE the public prosecutor at ORG filed a bill of indictment against the applicant , along with twentyseven other persons , charging him with membership of an illegal organisation under LAW .

On DATE the applicant maintained before ORG that his statements had been taken under torture while in police custody . At the end of the hearing , the court concluded that the applicant 's representative could file a complaint with the authorities about the applicant 's allegations of ill - treatment .

NORP On DATE the public prosecutor proposed to alter the charge against the applicant to treason against the integrity of the ORG , a capital offence under LAW .

DATE and DATE the first - instance court held DATE hearings . The applicant did not attend QUANTITY of them .

On DATE the applicant submitted his final defence submissions to the court . In his petition , the applicant denied the charges against him . Repeating his allegations of torture , the applicant maintained that he had been hung from his arms during his police custody .

On DATE , ORG found the applicant guilty as charged and sentenced him to the death penalty under LAW . The death penalty was commuted to a life sentence . In its judgment , the first - instance court did not list the applicant 's statements taken by the police as evidence , having regard to the doctors ' reports . It nevertheless convicted the applicant holding that other evidence corroborated his statements to the police .

The applicant appealed . In his petition , he maintained that the judgment of the first - instance court was based on his police statements which had been taken under torture .

On DATE ORG upheld the judgment of DATE .


The applicant , Mr PERSON , is a NORP national who was born in DATE and is currently detained in GPE .

On DATE ORG convicted the applicant of CARDINAL counts of rape and sentenced him to CARDINAL years’ imprisonment . Furthermore , the court ordered the applicant ’s placement in preventive detention pursuant to section CARDINAL of LAW ( see ‘ Relevant domestic law’ , below ) .

Since DATE the applicant , having served his full prison sentence , has been remanded in preventive detention .

In the course of proceedings for review of whether the further execution of the applicant ’s placement in preventive detention should be suspended on probation , the ORG summoned the applicant to a hearing on DATE .

By fax of CARDINAL DATE the applicant lodged a motion with the ORG to revoke the designation of his court - appointed defence counsel . He argued that following the counsel ’s visit in prison on DATE , there was no longer a relationship of trust between him and his counsel . He informed the court that he would not appear at the hearing scheduled for DATE as no proper defence had been set up . He further objected to the report submitted by expert ORG on the risk of his being recidivist as the expert had not been able to consult the complete case - files .

On DATE the president of the ORG dismissed the applicant ’s request to revoke the appointment of his counsel as illfounded . He argued that under section CARDINAL of the Code of Criminal Procedure ( CCP ) , it was possible to revoke the designation of an officially appointed defence counsel if the mutual trust between the defendant and the lawyer was seriously disturbed . However , the applicant failed to substantiate this since he had not given any reasons for his allegation that there was no longer a relationship of trust between him and his counsel .

On DATE the ORG refused to suspend the applicant ’s placement in detention on probation following a hearing on DATE . At the hearing the applicant ’s court - appointed defence counsel and the expert were present . As announced in his fax to the court , the applicant himself did not attend the hearing . Having regard to the report submitted by expert PERSON , ORG found that it could not be assumed that the applicant would not commit further offences if released from prison . It stated that the expert had convincingly argued that the applicant , as shown by his offence , was still dangerous for the public . Even though he had committed his last offence DATE , there were no signs that the applicant , who kept claiming to have been wrongfully convicted , was no longer likely to be recidivist .

On DATE the applicant received a copy of the decisions taken by the ORG and its president by post . ORG informed him that the decisions had been formally served on his defence counsel . Other than the letter to his counsel served on DATE , the letter to the applicant did not contain instructions about his available legal remedies ( Rechtsmittelbelehrung ) .

By submissions dated DATE , which reached ORG on DATE , the applicant lodged an appeal against the aforementioned decisions of the ORG and its president .

On DATE the ORG dismissed the applicant ’s appeal against ORG decision not to suspend his placement in preventive detention on probation as inadmissible . The court found that the applicant had not lodged his immediate appeal ( sofortige Beschwerde ) with ORG as prescribed by section CARDINAL § CARDINAL ORG ( see ‘ Relevant domestic law’ , below ) , but directly with ORG . ORG had not been obliged to forward the appeal to ORG , as it had already been lodged out of time when received by ORG . Pursuant to sections CARDINAL § CARDINAL and CARDINAL § CARDINAL ORG ( see ‘ Relevant domestic law’ , below ) , the applicant had to lodge his immediate appeal within DATE after ORG decision , including instructions about the available legal remedies , had been served on his lawyer on DATE . The applicant had , however , failed to lodge his appeal until DATE at the latest with the ORG .

ORG further dismissed the applicant ’s appeal against the refusal of the president of ORG to revoke the designation of his court - appointed defence counsel as ill - founded . Endorsing the reasons given by ORG , it argued that the applicant failed to substantiate that there were circumstances warranting the conclusion that the relationship of trust between him and his courtappointed lawyer was considerably and irrevocably disturbed to an extent which rendered the conduct of a proper defence impossible . In particular , it had been objectively justified for the defence counsel to refuse to lodge motions aimed at challenging the applicant ’s conviction in DATE . The lawfulness of this conviction was not at issue in the proceedings concerning the necessity of the applicant ’s continued placement in preventive detention .

On DATE the applicant filed a remonstrance ( Gegenvorstellung ) against the decision of ORG dated DATE dismissing his immediate appeal against ORG decision not to suspend his placement in preventive detention on probation . He complained that ORG letter of CARDINAL DATE to him had not contained instructions about the available legal remedies . He had not been in contact with his officially appointed counsel after CARDINAL DATE . He further argued that ORG had been obliged to give him an opportunity to supplement the reasons why there was no longer a relationship of trust with his lawyer .

On DATE the ORG , interpreting the applicant ’s remonstrance as a request for reinstatement of the proceedings ( Wiedereinsetzung in den vorigen Stand ) , dismissed this request . It found that the applicant had not substantiated that he had been prevented from observing the DATE time - limit for lodging an immediate appeal without fault of his own ( section CARDINAL ORG , see ‘ Relevant domestic law’ , below ) . Instructions about the available legal remedies were and had to be given solely to the applicant ’s lawyer , on whom ORG decision had been formally served ( sections ORG and LAW , see ‘ Relevant domestic law’ , below ) . There was no obligation under LAW to enclose such instructions also in the letter sent to the applicant ( section GPE CARDINAL ORG , see ‘ Relevant domestic law’ , below ) . In that letter , ORG had informed the applicant of the contents of ORG decision and of the fact that it had been served on his counsel . He should therefore have contacted his lawyer without undue delay in order to be informed about the further course of the proceedings or to mandate him to lodge an appeal .

On DATE the ORG rejected the applicant ’s further remonstrance against its decision of CARDINAL DATE .

On DATE and CARDINAL DATE the ORG dismissed the applicant ’s further requests for reinstatement of the proceedings .

On DATE , CARDINAL DATE and CARDINAL DATE the ORG rejected the applicant ’s further remonstrances .

On DATE the applicant lodged a complaint with ORG against the aforementioned decisions taken by ORG and ORG . He argued , in particular , that the failure to grant him access to ORG in order to complain about the refusal of the ORG to suspend his placement in preventive detention on probation had violated his right to a fair trial as guaranteed by LAW . ORG had notably failed to inform him about the available legal remedies against its decision of CARDINAL DATE . Moreover , his right to a fair hearing had been breached in that ORG had not revoked the designation of his court - appointed counsel without giving him an opportunity further to substantiate why there was no longer a relationship of trust between him and his counsel .

On DATE ORG , without giving reasons for its decision , refused to admit the applicant ’s constitutional complaint .

Decisions which are not taken in the presence of the person concerned shall be notified by service thereof ( section QUANTITY of Criminal Procedure – CCP ) .

The court - appointed defence counsel is considered authorized to accept service of documents on behalf of the defendant ( section CARDINALa § CARDINAL ORG ) . If a decision is served on counsel for the defence , the defendant shall be informed thereof ; at the same time he shall be provided informally with a copy of the decision ( section CARDINALa § CARDINAL ORG ) .

Upon notification of a decision the appeal against which is subject to a time - limit , the person concerned shall be given instructions about the options for contesting the decision and the prescribed time - limits and forms ( section ORG ) .

An appeal against a decision ( Beschwerde ) shall be lodged with the court which took the contested decision , either orally to be recorded by the court ’s registry or in writing ( section CARDINAL § CARDINAL ORG ) .

An immediate appeal ( sofortige Beschwerde ) shall be lodged within DATE ; the time - limit shall start running upon notification ( section CARDINAL ORG ) of the decision ( section CARDINAL § CARDINAL ORG ) .

Section CARDINAL provides that if a person was prevented from observing a time - limit without fault of his own , he shall be granted reinstatement of the proceedings ( Wiedereinsetzung in den vorigen Stand ) . Failure to observe the time - limit for lodging an appeal shall be considered as not due to his fault if the instructions pursuant to section ORG have not been given .

The sentencing court may , at the time of the offender ’s conviction , order his preventive detention in addition to his prison sentence if the offender is sentenced for an intentional offence to DATE imprisonment , has previously been convicted and detained ( for certain periods fixed by law ) and proved dangerous for the public ( section CARDINAL of LAW ) .

The court dealing with the execution of sentences may review at any time whether the further execution of the placement of a convicted person in preventive detention should be suspended on probation . It is obliged to do so DATE ( section CARDINAL of LAW ) .