Preliminary objection joined to merits and dismissed (non-exhaustion of domestic remedies);Violation of Art. 3 (substantive aspect);Violation of Art. 13;Remainder inadmissible;Non-pecuniary damage - award

Angelika Nußberger;Dean Spielmann;Elisabet Fura;Ganna Yudkivska;Karel Jungwiert;Mark Villiger

The applicants were born in DATE , DATE and DATE and live in GPE , GPE ob Savi and PERSON respectively .

The applicants served their sentence in the closed section of GPE prison , which is the third largest prison in GPE . It holds sentenced prisoners , remand prisoners and prisoners in administrative detention . It has an official capacity of CARDINAL inmates , which includes CARDINAL places designated for prisoners on remand , who by law must be held in a separate section of the prison . In principle there are CARDINAL types of cells in which the prisoners are held . Small cells measuring QUANTITY ( QUANTITY including the sanitary annex ) and normally containing CARDINAL sleeping places , and large cells measuring QUANTITY ( QUANTITY including the sanitary annex ) and normally containing CARDINAL sleeping places . The windows of the cells face either west or east . Remand prisoners are held on the ground floor , which contains QUANTITY small and CARDINAL large cells , and on the first floor , which has CARDINAL cells , including QUANTITY small and QUANTITY large cells . On the second floor , which contains CARDINAL cells , CARDINAL of which are large cells , both remand prisoners and sentenced prisoners are held . In the loft , which contains QUANTITY large cells , only sentenced prisoners seem to be held .

According to the ORG , plans for constructing a new prison to replace PERSON prison were in progress . However , completion depended on financial resources and no definite date could be given .

The applicant served his sentence in GPE prison in the period DATE and DATE . He was held in the following cells :

- DATE and CARDINAL DATE and DATE and DATE he was held in cell no . CARDINAL measuring QUANTITY . The cell contained CARDINAL sleeping places ( CARDINAL bunk beds ) . According to the applicant , CARDINAL prisoners were held in the cell in the period of his detention . The Government , however , submitted that the number varied DATE .

- DATE and CARDINAL DATE the applicant was held in cell no . CARDINAL measuring QUANTITY . The cell contained CARDINAL sleeping places ( CARDINAL bunk beds and a single bed ) . The number of prisoners held in this cell varied CARDINAL .

- DATE the applicant was held in cell no . CARDINAL measuring QUANTITY . The cell contained CARDINAL sleeping places ( CARDINAL bunk beds and a single bed ) . CARDINAL prisoners were held in this cell .

- DATE and DATE the applicant was held in cell no . CARDINAL measuring QUANTITY . The cell contained CARDINAL bunk bed and the applicant was alone in the cell as he had been placed under a high security regime ( see paragraph CARDINAL below ) , after attacking another inmate .

- DATE and CARDINAL DATE the applicant was held in cell no . CARDINAL measuring QUANTITY . The cell contained CARDINAL sleeping places ( CARDINAL bunk beds ) . According to the applicant , CARDINAL prisoners were held in the cell in the period of his detention . The Government , however , submitted that the number varied DATE .

Cells no . CARDINAL and CARDINAL had CARDINAL windows measuring QUANTITY each . Cell no . CARDINAL had CARDINAL such windows . Cell no . CARDINAL had CARDINAL window measuring QUANTITY and cell no . CARDINAL had CARDINAL windows measuring QUANTITY each .

In the period DATE and DATE the applicant was placed in a cell under a high security regime which implied that he could only have TIME of outdoor exercise and was not allowed to spend time in the recreation room . He ate his meals in the cell and was allowed to receive visits TIME a week and use the telephone TIME a week .

According to a personal plan set up on DATE it was anticipated that the applicant would enrol in a catering and hotel services training programme . However , there is no information in the file indicating if and when he attained this training course . According to the prison records the applicant was also involved in certain work activities in the period DATE and DATE ; however , there is no indication as to what kind of work this was and where it took place .

According to the prison records , the applicant had an opioid dependency and was undergoing methadone maintenance treatment during his detention . He had visited a general practitioner CARDINAL times . According to the Government the reasons for these visits related to common health problems such as flu and attempts to obtain anti - anxiety and sleeping medication and analgesics . In addition , the Government submitted that the applicant had had CARDINAL appointments at the psychiatric office , CARDINAL of which he had actually attended . The prison records , however , state that he underwent CARDINAL examinations at the psychiatric office . Likewise , the report given by the psychiatrist mentions CARDINAL sessions attended by the applicant in DATE and DATE and in DATE . The psychiatrist also mentioned in his report that the applicant refused to undergo urine testing and consultations in the period before DATE and in the period DATE .

The applicant served his sentence in the closed section of GPE prison in the period between DATE and CARDINAL DATE and DATE and DATE . In the period DATE and DATE the applicant was held in GPE prison , to which he was temporarily transferred further to a decision issued on DATE by the director - general of ORG hereinafter referred to as “ the General Administration ” ) . The latter decision was issued at the request of the governor of PERSON prison and cited overcrowding as grounds for transfer . On DATE the applicant was transferred back to PERSON prison , further to a court order , to serve another pending sentence of imprisonment .

The applicant ’s complaints relate to the conditions of detention in GPE prison only .

During his detention in GPE prison the applicant was held in the following cells :

- DATE and DATE the applicant was held in cell no . CARDINAL measuring QUANTITY . The cell contained CARDINAL sleeping places ( CARDINAL bunk bed ) and CARDINAL prisoners were held therein . It had CARDINAL windows measuring QUANTITY each .

- DATE the applicant was held in cell no . CARDINAL measuring QUANTITY . The cell contained CARDINAL sleeping places ( CARDINAL bunk beds ) . It had CARDINAL windows measuring QUANTITY each . According to the applicant , QUANTITY prisoners were held in the cell in the period of his detention . The Government , however , submitted that the number varied DATE .

- DATE and DATE the applicant was held in cell no . CARDINAL , in which the material conditions were the same as in cell no . CARDINAL ( see above ) .

- DATE the applicant was held in cell no . CARDINAL measuring QUANTITY . The cell contained CARDINAL sleeping places ( CARDINAL bunk beds and a single bed ) and , according to the Government , CARDINAL prisoners were held therein . It had CARDINAL windows measuring QUANTITY each .

- DATE and CARDINAL DATE the applicant was held in cell no . CARDINAL , in which the material conditions were the same as in cell no . CARDINAL ( see above ) .

- DATE the applicant was held in cell no . CARDINAL , in which the material conditions were the same as in cell no . CARDINAL ( see above ) .

- DATE and DATE the applicant was held in cell no . CARDINAL measuring QUANTITY . The cell had CARDINAL window measuring QUANTITY . The cell contained CARDINAL sleeping places ( CARDINAL bunk beds and a single bed ) . According to the Government , the number of prisoners held in this cell varied CARDINAL .

- DATE and DATE the applicant was held in cell no . DATE , measuring QUANTITY . The cell contained CARDINAL sleeping places ( CARDINAL bunk bed ) and CARDINAL inmates stayed therein . It had CARDINAL windows measuring QUANTITY each . The applicant was placed under a high security regime after he had attacked another inmate .

During the time the applicant spent under the high security regime , he could only have TIME of outdoor exercise per day and was not allowed to spend time in the recreation room . He ate his meals in the cell and was allowed to receive visits TIME a week and use the telephone TIME a week . On DATE the prison governor decided that the applicant ’s visits should be carried out behind a glass partition , since he had been suspected of receiving drugs from his visitors . This decision was entered into his personal plan and he was informed of the possibility to appeal against it to the director - general of ORG . The applicant did not appeal .

According to the prison records , the applicant had an opioid dependency and underwent methadone maintenance treatment during his imprisonment . He made CARDINAL request for consultation with a psychologist , which was also carried out . He had CARDINAL consultations with a psychiatrist and visited a general practitioner a number of times .

The applicant served his sentence in the closed section of GPE prison in the period DATE and DATE . On DATE he was transferred to PERSON prison , where he stayed until his conditional release on DATE . The transfer was made on the basis of a decision issued by the director - general of ORG at the request of the governor of GPE prison . The decision referred to amendment no . CARDINAL/CARDINAL ( see paragraph CARDINAL below ) and cited overcrowding as grounds for transfer .

During his detention in GPE prison the applicant was held in cells CARDINAL . CARDINAL and CARDINAL . Each cell measured QUANTITY and contained CARDINAL sleeping places ( CARDINAL bunk beds ) . It had CARDINAL windows measuring QUANTITY each . According to the applicant , QUANTITY prisoners were held in each of the cells in the period of his detention . The Government , however , submitted that the number varied DATE .

The applicant received CARDINAL visit during his detention , namely on DATE . On DATE the prison governor decided that the applicant ’s visit should be carried out behind a glass partition since he had been suspected of receiving drugs from his visitors . This decision was entered into his personal plan and he was informed of the possibility to appeal against it to the director - general of ORG . It was stated in the decision that the situation would be reviewed at DATE . The applicant did not appeal .

All the cells contained CARDINAL large and CARDINAL small table , a number of chairs depending on the number of beds and a set of cupboards for each of the detainees . The prisoners were free to open and close the windows .

The prisoners were allowed to bring in a small TV or , with the approval of the prison governor , radios or other electronic devices . In addition , they could borrow books from the prison library and read them in their cells .

The cells had no artificial ventilation . They were aired by opening the windows and , also , opening the doors in DATE when the detainees were out . During DATE , the detainees were also allowed to bring in ventilators , but they rarely did so . The cells were also equipped with functioning radiators , which the detainees were free to regulate .

According to the data provided by the ORG , the average temperature in the cells in the late afternoon ( TIME ) in DATE and DATE was CARDINAL oC , exceeding CARDINAL oC on DATE .

A sanitary annex measuring QUANTITY was attached to each of the large cells . As regards the smaller cell no . CARDINAL , a sanitary annex of QUANTITY was attached to it . The sanitary annex was a room with floor - to - ceiling walls and a door , equipped with CARDINAL basin with warm and cold water , a toilet , a drain and a mirror . It had a functioning artificial ventilation system .

The applicant had access to the shower room situated on the same floor and containing CARDINAL showers with partitions . According to the Government , the applicant could use the shower for TIME every day in accordance with the DATE schedule .

Detergents and products for personal hygiene were distributed to the prisoners on a DATE basis . Their bed linen was washed once DATE and they were given a clean blanket on arrival at the prison . Regular everyday cleaning and thorough DATE cleaning was carried out by the prisoners under the supervision of the prison staff .

In the closed section of the prison the cells were locked throughout DATE . The prisoners could leave the cell for the purpose of taking part in scheduled activities . The Government explained that out - of - cell time consisted of the following :

- The applicants could have their meal in the prison canteen for TIME CARDINAL times a day .

- Twice DATE the applicants could use the telephone booth , which was situated on the corridor .

- Every day TIME the applicants could visit the recreation room ( see paragraph CARDINAL below ) .

- Twice DATE they were allowed to visit the prison shop .

- Between TIME and TIME and on DATE and DATE until TIME the applicants could watch TV in the aforementioned recreation room

- On DATE and DATE they could receive visits lasting no longer than TIME .

- TIME and TIME and during DATE TIME the applicants could use the outside yard which measured QUANTITY and allowed for the possibility to play basketball , football and bowling . It was not covered by a roof . In bad weather , the prisoners were instructed to use the recreation room .

According to the Government the applicants could spend TIME and TIME out of their cells per day . On DATE and DATE even more time was allowed .

The Government further submitted that sentenced prisoners could use the recreation room for the purpose of playing table tennis DATE TIME and for the purposes of gym exercise between TIME and TIME During DATE , in the TIME the recreation room was used for the purpose of gym exercise by those inmates who worked in TIME . There was CARDINAL recreation room on each floor , measuring QUANTITY , which was supposed to be available to all the inmates accommodated on that floor . At a time , CARDINAL inmates were allowed to use the room ; however , in practice , the average number was CARDINAL . In addition , there was a creativity room of QUANTITY , a library of QUANTITY and a room used for reading and lecturing of QUANTITY at the prison .

A medical office operated in the prison subject to the general regime of the national health - care system . It was open for TIME , CARDINAL times a week . A dental - care office was open DATE for TIME . A psychiatric clinic was open DATE for DATE . The prison also employed CARDINAL psychologists . All prisoners underwent a medical examination upon their arrival . Prisoners who were using intravenous drugs received vaccinations against hepatitis B in conformity with the standard protocol applied in such cases .

The prison provided the prisoners with the possibility to undergo testing for hepatitis B and C and HIV . In DATE CARDINAL prisoners were tested . CARDINAL were diagnosed with Hepatitis C ; the other tests were negative , but CARDINAL person was diagnosed with PERSON .

DATE ( PERSON ) reads as follows :

“ No one may be subjected to torture , or inhuman or degrading punishment or treatment . ... ”

The Enforcement of Criminal Sanctions Act ( Zakon o izvrševanju kazenskih sankcij , ORG , ORG . CARDINAL , since amended , hereinafter referred to as “ the ECS Act ” ) regulates , inter alia , the rights of sentenced prisoners and the conditions of their detention . The relevant provisions read as follows :

( CARDINAL ) ORG sentenced prisoner shall be allocated to a single cell in accordance with the space available in the prison . Shared cells shall not have CARDINAL beds .

“ A sentenced prisoner must be provided with an opportunity to spend TIME in the open air each day . ”

“ ( CARDINAL ) ORG sentenced prisoner shall be allowed unrestricted correspondence with immediate family members . A sentenced prisoner may exchange letters with others if his or her personal plan allows it . The decision shall be made by the governor at the sentenced prisoner ’s request .

CARDINAL ) Sentenced prisoners must be guaranteed privacy of correspondence and communication . ”

“ ( CARDINAL ) ORG of mail shall only be allowed if there is suspicion that objects which a sentenced prisoner is not allowed to have in his or her possession are being brought in or taken out .

“ ( CARDINAL ) ORG sentenced prisoner must be allowed visits from immediate family members , foster parents or guardians at least twice a week . A sentenced prisoner may also be visited by other persons with the permission of the prison governor . A visit may not be restricted to TIME .

“ ( CARDINAL ) Visits to sentenced prisoners shall take place in suitably equipped internal or external LOC and may be either supervised or unsupervised , whereby supervised visits may be carried out behind glass partitions . The method of visits shall be decided by the prison governor . The decision on the method of visits shall be entered in the sentenced prisoner ’s personal plan .

“ ( CARDINAL ) ORG sentenced prisoner must be given an opportunity to hold telephone conversations with immediate family members , his authorised representative , a consular ...

The Regulation on the Execution of Prison Sentences ( PERSON o izvrševanju kazni zapora , ORG with amendments , hereinafter referred to as “ the Regulation ” ) regulates the treatment of sentenced prisoners in more detail . The relevant provisions read as follows :

“ Dormitories must be bright , dry , well ventilated and big enough . There must be CARDINAL sq . m of surface area available for every sentenced prisoner in a single cell and CARDINAL CARDINAL sq . m of surface area for every sentenced prisoner in a cell with multiple beds . ”

“ Supervised visits may last no longer than TIME and unsupervised visits no longer than TIME . ”

“ Sentenced prisoners shall be allowed to make telephone calls to immediate family members at least twice DATE .

“ The standards provided in section CARDINAL of this regulation shall apply to newly built facilities or , where possible , following the renovation of existing facilities . ”

The Rules concerning Sentenced Prisoners in ORG ( Hišni red GPE prestajanje kazni zapora GPE , hereinafter referred to as “ FAC ” ) regulate the regime in the closed section of the prison in which sentenced prisoners are held . They provide that on DATE , sentenced prisoners are woken up at TIME and on nonworking DATE at TIME and retire for TIME As a rule , prisoners are expected to leave for work , go to the canteen , events or clinics in an organised manner . Meals , except for breakfast , must be eaten in the prison canteen in accordance with the DATE schedule . As regards telephone conversations , the Rules provide that they should not exceed TIME and may exceptionally be longer , subject to conditions in prison .

The Daily Schedule ( dnevni red ) is annexed to the rules and determines the timetable of activities in the closed section of the prison .

Since DATE , ORG o zdravstvenem varstvu in zdravstvenem zavarovanju , ORG no . CARDINAL/CARDINAL with amendments ) provides for sentenced prisoners and prisoners on remand to be insured and therefore included in the public health system . They can exercise their rights under LAW with certain exceptions . For example , they can not choose their own general practitioner but are , as regards general health care , limited to the medical service provided in the prison establishment . However , the prisoners are also entitled to medical services for which other insured persons have to take out supplementary insurance .

LAW regulates the transfer of sentenced prisoners from one prison to another prison or section of a prison . The relevant provisions read as follows :

“ CARDINAL ) A sentenced prisoner may be transferred from CARDINAL prison or section of a prison to another prison or section on the territory of GPE if this is necessary in order to implement his or her personal plan or the prison ’s work programme , is necessary for reasons of security , is in the interest of maintaining order and discipline in the prison , has been proposed by the unit responsible for the protection of persons whose security is at risk in compliance with the LAW governing protection of witnesses in order to ensure the security of the sentenced prisoner .

“ ( CARDINAL ) The procedure for transfer shall begin at the proposal of the prison governor or the head of the prison unit responsible for the protection of persons at risk in compliance with LAW or at the request of the sentenced prisoner or his immediate family members , foster parent or guardian .

( CARDINAL ) A decision to transfer a sentenced prisoner within the same prison shall be made by the prison governor after obtaining an opinion from the head of the section , whereas a decision on transfer from CARDINAL prison to another prison shall be made by the director - general of ORG [ hereinafter referred to as “ the ORG ” ] after receiving opinions from the prison in which the sentenced prisoner is serving the sentence of imprisonment and from the prison to which the sentenced prisoner is to be transferred .

( CARDINAL ) If a sentenced prisoner is transferred within the same prison in compliance with LAW , this shall be recorded in his or her personal plan .

( CARDINAL ) If a sentenced prisoner is transferred at his or her request or that of his or her immediate family members , the cost of the transfer shall be borne by the sentenced prisoner himself ; in other cases , the cost shall be borne by the prison from which he or she has been transferred .

( CARDINAL ) An appeal against a decision on the transfer shall be allowed . An appeal against a decision referred to in section CARDINAL of this Act shall not stay its execution .

( CARDINAL ) A request for transfer for the same reasons may be repeated after the expiry of DATE from DATE the decision on the earlier request was taken .

Section CARDINAL of LAW prescribes the use of LAW in respect of the procedure under LAW of the LAW . It also provides :

( CARDINAL ) The ministry responsible for justice shall decide on admissible appeals against decisions issued at first instance by ORG . The director - general shall decide at second instance on matters on which the prison governor decides at first instance .

( CARDINAL ) ORG responsible for deciding on matters according to the provisions of the first paragraph of this section shall decide in a summary proceeding without hearing the parties .

( CARDINAL ) The entry of the decision in the personal plan based on this Act shall replace a written decision . A sentenced prisoner shall have the right to appeal against a decision entered in his personal plan to the director - general of ORG within DATE of being informed of the decision .

Section CARDINAL of the ORG provides that the proposal of the prison governor for the transfer of a sentenced prisoner from CARDINAL prison to another under sections CARDINAL of the Act must be duly reasoned . The decision of the director - general of ORG ( “ the General Administration ” ) shall be served on the sentenced prisoner . Furthermore , section CARDINAL provides :

“ The petitioner shall lodge a request for transfer to another prison or section under LAW of LAW with the prison in which the sentenced prisoner is serving the sentence . The prison or section shall send the request within DATE to ORG together with the personal file of the sentenced prisoner , the report on the sentenced prisoner ’s behaviour and work and the opinion on the merits of the request and the suitability of transfer .

The prison or section to which the sentenced prisoner should be transferred must send its opinion to the director - general within DATE at the latest .

In the period DATE and DATE an amendment published in ORG no . CARDINAL/CARDINAL was in force . It obliged prison governors to immediately request transfer of a prisoner if the occupancy level of the prison exceeded the average occupancy level of prisons in GPE by PERCENT or more . This provision was abolished by the amendment published in ORG no . CARDINAL/CARDINAL .

LAW contains a special chapter which concerns the exercise and protection of sentenced prisoners’ rights . The LAW distinguishes between two types of treatment , that is , “ torture or other cruel forms of inhumane or degrading treatment ” and “ other violations of rights or other irregularities for which judicial protection is not guaranteed ” . The relevant provisions read as follows :

“ ( CARDINAL ) A sentenced prisoner who believes that he has been subjected to torture or other cruel forms of inhumane or degrading treatment may apply for judicial protection by means of a request .

( CARDINAL ) The prison must also forward the request referred to in the preceding paragraph to the competent state prosecutor . ”

“ If a sentenced prisoner has suffered harm as a result of actions referred to in the first paragraph , he or she may request compensation directly from the person who caused the harm , in accordance with the law . ”

“ ( CARDINAL ) NORP If other violations of rights or other irregularities are involved , for which no judicial protection is guaranteed , the sentenced prisoner may lodge a complaint with the director - general of ORG .

For the relevant domestic legislation concerning proceedings under LAW and proceedings for injunction and damages under LAW , see PERSON and PERSON GPE , nos . CARDINAL , § § DATE , DATE .

Sections CARDINAL and CARDINAL of LAW , referred to in paragraph CARDINAL below , read as follows :

“ ( CARDINAL ) In an administrative dispute the court shall also decide on the legality of individual acts and actions by which the authorities infringe the human rights and fundamental freedoms of an individual if no other judicial protection is provided .

( CARDINAL ) NORP If actions of public authorities are challenged in an administrative dispute , the provisions of this Act referring to the challenging of an administrative act shall apply . ”

( CARDINAL ) A claim may be filed against the violation of human rights and fundamental freedoms under LAW seeking :

– to annul , issue or amend an individual act ,

– to declare that an action infringed a human right or fundamental freedom of the plaintiff ,

– to prohibit further action ,

– to undo the consequences of an action . ”

LAW provides in so far as relevant :

“ ( CARDINAL ) Supervision of the legality of the treatment of sentenced prisoners shall be exercised by the ministry responsible for justice and the president of the district court in whose territory a prison or its section is located . An authorised official from the ministry responsible for justice or the president of the district court shall , at the request of sentenced prisoners also without the presence of prison staff , interview sentenced prisoners about the treatment they are receiving and about the exercise of their rights .

( CARDINAL ) NORP If the ministry ... or the president of the district court ... establishes in the course of supervision that sentenced prisoners’ rights have been violated , they shall take all measures necessary to ensure [ respect for ] sentenced prisoners’ rights .

( CARDINAL ) In accordance with LAW and international legal acts , ORG and authorised bodies responsible for the protection of human rights and the prevention of torture , inhumane and degrading treatment or punishment , shall also be enabled to exercise supervision referred to in the first paragraph of this section .

( CARDINAL ) ORG supervision and administrative supervision of the provision of health care services in the prison shall be exercised in accordance with the law governing health care services . ”

The Regulation sets out in more detail the supervision of the conditions in prisons by the president of a district court :

“ If the sentenced prisoner files a complaint to the president of the competent district court exercising supervision under LAW , the latter shall examine it and if he or she considers it well - founded , shall order the necessary measures ; the president of the district court may also inform the prison governor thereof together with instructions , if necessary , or [ inform ] ORG writing . ”

“ The president of the district court ... shall exercise supervision under LAW at least once DATE .

If the president of the district court establishes in the course of supervision that sentenced prisoners’ rights have been violated , he shall inform the prison governor in whose prison he exercised supervision , ORG and ORG thereof . ”

The relevant extracts from the general reports by ORG for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment ( ORG ) are set out in Mandić and PERSON , cited above , LAW DATE .

The ORG visited PERSON prison in DATE and DATE . During its most recent visit in DATE the ORG visited the remand section of GPE prison .

NORP In DATE the number of prisoners held in the prison was CARDINAL prisoners , which is significantly lower than it is currently ( see document ORG ( CARDINAL ) CARDINAL ) . Following the visit in DATE , the following recommendations were made to the NORP authorities ( ORG DATE ) CARDINAL ) :

“ ii . NORP Ljubljana prison

NORP ... the ORG reiterates its recommendation that efforts be made to reduce to a maximum of CARDINAL the number of prisoners held in the cells measuring CARDINAL m² , and to accommodate CARDINAL prisoner in each cell measuring CARDINAL m² . ”

Following the visit in DATE of the remand section of FAC , the following recommendations were made to the NORP authorities which are relevant also to the situation of sentenced prisoners ( ORG ( DATE ) CARDINAL ) :

“ DATE . ... The ORG calls upon the NORP authorities to implement its long - standing recommendation to reduce cell occupancy rates at GPE prison . Cells measuring CARDINAL ORG should not accommodate CARDINAL prisoners , and the CARDINAL m² cells should preferably not accommodate CARDINAL prisoner .

At all the establishments visited , sentenced prisoners had adequate access to telephones . ”

In the chapter concerning the living conditions in NORP prisons , the reports include information on prison overcrowding . The rate of overcrowding is calculated on the basis of the domestic statutory personal space requirement for sentenced individuals in prison , which is QUANTITY for a single occupancy cell and QUANTITY per person in a shared cell ( see paragraph CARDINAL above ) . According to the DATE and DATE reports nationwide prison occupancy exceeded the official capacity by CARDINAL and PERCENT respectively . Almost all closed prison facilities accommodating male prisoners were overcrowded . PERSON prison was the most overcrowded prison in GPE . With an official capacity of CARDINAL prisoners , it held CARDINAL and CARDINAL prisoners in DATE and DATE respectively . This meant that the level of overcrowding was CARDINAL and PERCENT respectively ( DATE Report , pp . CARDINAL and CARDINAL ; DATE Report , pp . CARDINAL and CARDINAL ) . According to ORG , the level of overcrowding in DATE and DATE was CARDINAL and PERCENT respectively ( p. CARDINAL ) . These figures include both sentenced and remand prisoners .

The DATE Report noted that in respect of GPE prison the maximum number of prisoners allowed was set at CARDINAL ; if this number was exceeded the prison administration was required to institute a transfer procedure ( p. CARDINAL ) . The report also noted ( p. CARDINAL ) :

“ ... Poor living conditions are coupled with overcrowding , which is most present in the large prisons in GPE : Dob , GPE and GPE prisons . The urgency of improving living conditions has been stressed by ORG , the ORG and other institutions .

... It is understandable that such living conditions adversely affect ORG hygiene and privacy . Poor living conditions sometimes also obstruct the exercise of ORG rights ( work , exercise and recreation , religious ceremonies ) . In some establishments , prisoners on remand live in worse conditions than sentenced prisoners . The outdated and inadequate furniture in living rooms and other areas presents an additional problem ... ”

On DATE and DATE the ORG conducted a visit to GPE prison in her capacity as a “ national preventive mechanism ” under LAW to LAW and other Cruel , Inhuman or Degrading Treatment or Punishment ( “ the LAW ” ) . The report published following the visit reads as follows :

“ Official capacity is still CARDINAL prisoners . This includes CARDINAL places designated for prisoners on remand , CARDINAL places for sentenced prisoners and CARDINAL places for prisoners in administrative detention . On DATE of the visit , the prison held CARDINAL prisoners ( CARDINAL prisoners on remand , CARDINAL sentenced prisoners and CARDINAL prisoners in administrative detention ) . The official capacity was therefore exceeded by PERCENT .

... the prison administration has replied that in the present circumstances all realistic possibilities for reducing the occupancy level have been exhausted ... ORG has also warned that the conditions are unacceptable and the Government should be aware of the problem ... As regards the information about the construction of a new prison , the prison administration has stated that it is not realistic to expect the construction to be completed in a short time ...

We are therefore not surprised that in all the cells the number of beds has only increased since our last visit ...

... In the light of the critical overcrowding and all the consequences which relate to it , we consider the conditions unacceptable .

The prison still does not have a special drug - free unit . ... The prison administration said that in the current overcrowding conditions it is impossible to organise such a unit . The administration estimated that PERCENT of the prison population have drugrelated problems . ...

Smoking is allowed only in the cells , whereas the prison does not have permanent smoking or non - smoking cells . Efforts are made to separate the smoking and nonsmoking prisoners , but due to overcrowding this is often very difficult or impossible ... ”

In her report concerning her activities under LAW in DATE , ORG also noted :

“ The problem of overcrowding in prisons is one of the most critical and complex problems in the area of enforcing criminal sanctions , especially when it comes to detention on remand . It seems that virtually everything that was possible was done to resolve this problem , by means of the reasonable transfer of prisoners between prisons or their departments .

A critical point has obviously been reached when it will be necessary to consider more systemic solutions if the country is to meet its [ domestic and international ] obligations at all ...

As regards the temperatures in the cells , the following was noted in the DATE report of ORG :

“ ... During the visit to PERSON prison the official capacity was exceeded by PERCENT ... At the time of the visit it was ... typically DATE weather , therefore the air in the cells was hot and humid . On DATE of the visit ( DATE ) we measured , at TIME , QUANTITY in some cells . By using their own ventilators and by means of putting shades on the windows , the prisoners tried to lessen the effect of the scorching ... heat , as their rooms were locked and the air could not circulate . We considered that the living conditions , as observed by us during DATE , were inhuman . ”


The applicant is a NORP national , born in DATE and currently serving a sentence of life imprisonment in FAC . He is represented before the ORG by Mr PERSON , a solicitor practising in GPE .

The applicant was born in DATE in GPE in GPE .

DATE , PERSON was in GPE . The NORP briefly occupied the region before ceding it to GPE . In DATE , the NORP invaded again and occupied PERSON until DATE . PERSON had an estimated population in DATE of CARDINAL of which a significant majority were NORP .

The applicant joined the local police force established by the NORP soon after the beginning of the occupation , ultimately becoming local commander of the force . During the period of the occupation , the NORP policy of genocide against the NORP members of the population was implemented . According to NORP records , on DATE , CARDINAL NORP people were massacred in PERSON . This was a combined operation carried out by NORP and local police . Searching for and killing NORP who escaped such operations were part of the tasks of the local police .

The applicant left the region in or DATE when the NORP began to retreat and joined the NORP army in or DATE . He arrived in GPE in DATE and has lived there ever since .

The War Crimes Act DATE provided that proceedings for murder could be brought against a person irrespective of the nationality of the person in respect of offences committed during the Second World War ( see Relevant Domestic Law and Practice below ) .

On CARDINAL and DATE , the applicant was interviewed by the NORP police concerning his activities in PERSON during the NORP occupation . In his statements , he denied that he had been a member of the local police ; that there had ever been a locally recruited police force there ; that there had only been unarmed lookout men , not in uniform , keeping watch for NORP partisans ; that there had been no ghetto in PERSON and no restriction of movement had been imposed on the NORP population . He also denied that he had been married in PERSON . He said that he had been in GPE on forced labour at the time under investigation .

The applicant was charged on an indictment with CARDINAL counts of murder :

Count CARDINAL : that DATE he had murdered a NORP in PERSON in circumstances constituting a violation of the laws and customs of war ;

Count CARDINAL : that between DATE and DATE he had murdered a NORP named PERSON in PERSON in circumstances constituting a violation of the laws and customs of war ;

Count CARDINAL : that between CARDINAL and DATE he had murdered a NORP ( other than that specified in Count CARDINAL ) in PERSON in circumstances constituting a violation of the laws and customs of war ;

Count CARDINAL : that between CARDINAL and DATE he had murdered a NORP known as PERSON in PERSON in circumstances constituting a violation of the laws and customs of war .

In the trial which took place DATE and DATE , before Mr Justice PERSON and a jury , the applicant was represented by senior and junior counsel and solicitors .

In essence , the prosecution case was that the applicant had been a willing volunteer in the local police force and engaged in the search and kill operation carried out after the massacre of the NORP inhabitants of the ghetto in PERSON on DATE . Witnesses for the prosecution alleged that they had seen the applicant engaged in acts of violence against NORP persons and that he had been involved in executions . The defence case was that , although the applicant now admitted being a policeman and of being in charge at some point , he had been absent from the village when the principal massacre occurred and had taken no part in any search or kill activities afterwards . He alleged that he had on the contrary been a friend of the NORP in the village and that the witnesses who made allegations about his alleged participation in war crimes were liars in league with the ORG and ORG , or motivated to obtain indiscriminate vengeance because of relatives lost or killed during the war .

Before the commencement of the proceedings , the defence made a number of applications : that the trial should be stayed as an abuse on the basis that due inter alia to the lapse of time since events the applicant could not obtain a fair trial . The application was refused by the trial judge who considered that it was entirely speculative as to whether the unavailability of witnesses was a detriment or a bonus , that the evidence of the eye - witnesses called by the prosecution could be properly and rigorously tested within the confines of the trial process , and that any points which the defence might have about the reliability of the evidence could be fairly accommodated within the trial process . The defence also made an application that the evidence of CARDINAL witnesses , PERSON and PERSON , be excluded as inadmissible . On DATE , the judge ruled that the evidence of both witnesses was relevant and admissible and , on DATE , that it should go before the jury .

At the close of the prosecution case , the judge ruled that there was insufficient evidence as a matter of law to support a conviction on counts CARDINAL and DATE and that the applicant should be acquitted . He ruled that the evidence going to those CARDINAL counts should be withdrawn from the jury but that evidence concerning other matters given by CARDINAL witnesses ( PERSON and PERSON ) who had testified on those counts should remain with the jury .

During the trial the judge and jury visited the location at GPE , including the site in a forest where CARDINAL witness , PERSON , claimed to have seen the applicant execute a number of NORP women , including the victim specified in Count CARDINAL .

During the evidence of a police officer , counsel for the applicant posed questions concerning the applicant ’s claim that he had served in ORG and reference was made to NORP military records which were never formally proved but which by agreement were before the jury . The police officer also made reference to a missing persons document , obtained from NORP records , which referred to the applicant as going missing from a ORG unit in DATE . This document had not been put in evidence . The judge directed the jury that hearsay was not evidence , that the document to which the officer had referred had not been prepared by him and that , accordingly , the document was not evidence .

When the applicant gave evidence , he referred to his service in the NORP army , again with reference to the NORP records , and stated that he had in fact left PERSON at DATE , not during DATE as had been part of a formal admission by his legal representatives . During cross - examination , he appeared to claim that he had joined the NORP brigade in DATE . Prosecution counsel asked him whether he had ever served in the NORP army and he denied it very emphatically . The judge ruled that it was permissible to put to him questions concerning the NORP military records and permitted prosecution counsel to ask the applicant to look at the missing persons document and put questions on that document . The applicant denied that he had ever joined ORG , but confirmed that it contained an accurate record of his personal details . He suggested that it had been fabricated by the police officers in the case . During this questioning , the applicant became highly emotional and lost his composure .

The prosecution made an application to the judge to call evidence to prove the provenance of the missing persons document in order to rebut the allegation of fabrication . On DATE , the judge refused the application . He stated that the prosecution accepted that the document was not evidence that the applicant was a member of ORG and that the state of the evidence on that point was that emanating from the applicant , namely , his denial . He considered that at this late stage of the trial any evidence as to the origin of the document might in those circumstances have a disproportionate effect on the consideration of jury of the evidence as a whole .

On DATE , before the closing speeches were due to begin and a long adjournment over a weekend , the judge after consulting counsel decided to withdraw the applicant ’s bail . He stated that this was due to CARDINAL concerns : his concern for the ordinary continuance of the trial , as that concept was defined in LAW as failing to surrender to custody , and the welfare of the applicant . He took note of the applicant ’s advanced age , his problems of health , the fact that he lived alone at an address known to the press and that , if bail was withdrawn , he would be held in the hospital wing of NORP prison with medical attention and a carer to oversee his welfare . He stated :

“ I have come to the conclusion that , against the whole background of the case , and bearing in mind particularly the manner in which the defendant gave his evidence over DATE , that the defendant comes within the terms of paragraph ( CARDINAL ) ... that bail should be withdrawn for his own protection and that the arrangements to which I have referred would ensure that he is properly looked after until the conclusion of this trial .

I emphasise that in taking this course my concern is for the defendant ’s own protection . ”

An application was made to ORG to review bail on DATE . It was refused . The applicant states that ORG judge took the view that he should not interfere with the decision given the stage reached in the proceedings , i.e. the closing speeches .

On DATE , defence counsel made representations , inter alia , that the arrangements made for the applicant in prison had not reflected those referred to by the trial judge . He had allegedly been held in a psychiatric ward with disturbed prisoners instead of a room of his own , had been subjected to strip searches and had passed a very distressing DATE . On hearing re - assurances from defence counsel that arrangements would be made for transporting the applicant to and from the court room and for ensuring his welfare in his own home , and having regard to the shortness of the overnight adjournment of the trial , the trial judge reinstated bail .

On DATE , the jury convicted the applicant of counts CARDINAL and CARDINAL . The applicant was sentenced to a mandatory term of life imprisonment . The trial judge recommended that the applicant “ never see the light of day ” . The Lord Chief Justice recommended a tariff ( the period to be served for retribution and deterrence ) of DATE . The Home Secretary has yet to fix the tariff .

The applicant appealed against conviction to ORG . He lodged grounds which , inter alia , alleged that the judge had erred in failing to stay the proceedings and in admitting the evidence of PERSON and PERSON , that the judge failed to direct the jury on how to approach evidence which related to similar facts or other crimes not the subject of the indictment , that the judge had erred in not discharging the jury on the basis that they had heard evidence relating to counts CARDINAL and CARDINAL which had been withdrawn and that the verdict of the jury was unsafe by reason of the cross - examination of the applicant on a ORG document which was not evidence in the case and during which his loss of composure would have reflected on his credit .

In its judgment of DATE , ORG rejected the applicant ’s appeal . It summarised the evidence on counts CARDINAL and CARDINAL as follows :

“ The core of the prosecution case on count one was contained in the evidence of PERSON . On DATE of the massacre , he was at home in PERSON a very small village on the outskirts of PERSON . He heard firing from the direction of the massacre site . DATE , with another boy DATE ( and thus CARDINAL ) he went to the deserted ghetto searching for clothes and shoes . While there the boys were caught by the police and taken to the police station . From the police station the [ applicant ] took both boys to a site at the eastern site of the ghetto ... There PERSON saw CARDINAL policemen whose names he could not remember guarding CARDINAL NORP men and a NORP woman . They were standing by a recently dug hole . The [ applicant ] told the CARDINAL victims to undress , which they did , reluctantly on the part of the woman . ... When they were undressed the victims were lined up and shot by the [ applicant ] with a pistol ... He pushed them into the pit with his knee as they fell . The boys then buried the bodies in the pit with the spades which were on the site . They were offered the GPE clothes but declined ... PERSON said that his companion , PERSON , had died but gave a date for his death which was shown to be inaccurate . He had not mentioned this incident to the ORG when questioned immediately after the war . His first account of the shooting was given to the NORP police in DATE .

The core of the prosecution case on count CARDINAL was contained in the evidence of PERSON . He lived in PERSON and worked in GPE travelling to and fro by train via ... PERSON . DATE after the massacre in DATE he was returning in TIME from GPE . On this occasion he got off the train at ORG where his sister lived because he had something to deliver . He went to her house ... and was then returning through the woods to his home . He said that as he was walking through the woods he heard crying and shouting . He walked in the direction of the noise to see what was happening . He saw a number of NORP women who were getting undressed . They were told to place their clothes in a pile and then turn to face a pit . These directions , he said , were given by the [ applicant ] . He hid himself in the bushes and observed what happened . The [ applicant ] had a submachine gun . The women turned to face the pit and the [ applicant ] mowed them down with the machine gun . They fell into the pit . There were , according to him , no policemen present other than the applicant and no NORP . He estimated that there were CARDINAL NORP women , and no men , but he recognised none of them . He was a considerable distance away ( during the trial the distance was calculated to be CARDINAL or CARDINAL paces ) and watched for TIME . Dusk was beginning to gather , but PERSON evidence was that the sun was still in the sky . He said that he recognised the [ applicant ] ‘ by his size and by his face . He was famous by that time.’ PERSON first described this incident to NORP police in DATE . ”

As regards the judge ’s failure to stay the proceedings for abuse , ORG found that he had correctly applied his discretion on the basis that the reliability of the evidence could be properly and fairly tested in the trial and subject to his powers of direction as trial judge and that it had not been established that the continuance of the proceedings would deny the applicant a fair trial .

As regards the allegations that the judge should have excluded evidence of witnesses about alleged assaults and the taking away of NORP families by the applicant which were not on the indictment , it held that this evidence was relevant to prove that the applicant was a policeman involved in the search and kill operation and as establishing the context and circumstances in which the offences were said to have been committed . The evidence had not been relevant as “ similar fact ” evidence and the judge had not been required to warn the jury that these matters could not be relied on to prove a propensity to kill NORP victims . The judge had properly explained to the jury the basis on which to consider the evidence and they had not been led to infer that the mere fact that the applicant was implicated in other acts of violence against the NORP population meant he was more likely to have committed the CARDINAL specific offences of murder .

ORG found no basis to fault the judge ’s approach to the evidence concerning PERSON identification of the applicant . Nor had he erred in allowing evidence concerning the applicant ’s role as a policeman during the period and during the search and kill operation to remain before the jury even after the CARDINAL counts on which those witnesses had principally given evidence had been withdrawn . As regards the cross - examination on the basis of the missing records document , it considered that the judge had given a clear direction to the jury that this document could not constitute evidence that he was a member of ORG and that it could not contradict his assertion that he was never a member of that organisation . They were not persuaded that the questioning had overstepped the proper limits , pointing out that this line of cross - examination had been inevitable once the applicant had relied on the NORP army records to give a favourable impression through his service with the Allies .

The judgment concluded :

“ Given the unique circumstances of this case and the grave consequences of conviction to the appellant , we have considered with care whether there is any more general ground upon which these convictions could be regarded as unsafe . For reasons already given , we conclude that the jury was in a very advantageous position having seen the site and heard the evidence , to form a reliable judgment on count CARDINAL . On count one we remind ourselves that the conviction rested very largely on the evidence of a witness who was , if his evidence was reliable , standing within feet of the [ applicant ] when this murder was committed . It was not a case of an identification made DATE after the event but CARDINAL of contemporaneous recognition to which the witness deposed after that lapse of time . It is not easy to imagine any event , which if witnessed would impress itself more indelibly on the mind of DATE boy . The jury had to consider whether the witness was honest and reliable . They concluded that he was both . We see no reason to question the soundness of that judgment . ”

ORG refused leave of appeal to ORG but certified CARDINAL points of law of general importance , namely :

Whether evidence of other criminal activity , not charged in the indictment , allegedly committed by the defendant is admissible to prove that the defendant is CARDINAL of a group of people , CARDINAL of whom must have committed the offence charged or under a broader basis , by which the jury ought to have had evidence of the whole background to the offence in order to enable them to see the offences charged in context .

NORP If such evidence was admissible , must the jury be instructed in terms that they must not treat the evidence as proof of propensity .

On DATE , ORG refused the petition for leave to appeal . No reasons were given .

Section CARDINAL of LAW DATE provides :

“ ( CARDINAL ) ... proceedings for murder , manslaughter or culpable homicide may be brought against a person in GPE irrespective of his nationality at the time of the alleged offence if that offence –

( a ) was committed during DATE and ending with CARDINALth DATE in a place which at the time was part of GPE or under NORP occupation ; and

( b ) constituted a violation of the laws and customs of war .

( CARDINAL ) No such proceedings shall ... be brought against any person unless he was on DATE , or has subsequently become , a NORP citizen or resident in GPE , GPE or any of LOC . ”

According to LAW , Schedule CARDINAL , defendants accused of imprisonable offences are subject to the following provisions concerning detention prior to conviction :

“ Exceptions to right to bail

NORP The defendant need not be granted bail if the court is satisfied that there are substantial grounds for believing that the defendant , if released on bail ( whether subject to conditions or not ) would –

( a ) fail to surrender to custody , or

( b ) NORP commit an offence while on bail , or

( c ) interfere with witnesses or otherwise obstruct the course of justice , whether in relation to himself or any other person .

The defendant need not be granted bail if the court is satisfied that the defendant should be kept in custody for his own protection or , if he is a child or young person , for his own welfare . ”

Section CARDINAL of the Murder ( Abolition of the Death Penalty ) Act DATE provides for the mandatory imposition of a sentence of life imprisonment automatically upon conviction for an offence of murder . A person convicted of other serious offences ( e.g. manslaughter or rape ) may also be sentenced to life imprisonment at the discretion of the trial judge in certain other cases where the offence is grave and where there are exceptional circumstances which demonstrate that the offender is a danger to the public and it is not possible to say when that danger will subside .

Over DATE , the Secretary of ORG has adopted a “ tariff ” policy in exercising his discretion whether to release offenders sentenced to life imprisonment . This was first publicly announced in ORG by Mr PERSON on DATE ( ORG ) cols . CARDINAL - CARDINAL ) . In essence , the tariff approach involves breaking down the life sentence into component parts , namely retribution , deterrence and protection of the public . The “ tariff ” represents the minimum period which the prisoner will have to serve to satisfy the requirements of retribution and deterrence . The Home Secretary will not refer the case to ORG until DATE the expiry of the tariff period , and generally will not exercise his discretion to release on licence until after the tariff period has been completed ( per Lord PERSON , NORP v. the Secretary of ORG for ORG , ex parte T. and PERSON , DATE PERSON , at pp . CARDINALG-CARDINALA ) .

Pursuant to section CARDINAL of LAW , the tariff of a discretionary life prisoner is fixed in open court by the trial judge after conviction . After the tariff has expired , the prisoner may require the Secretary of ORG to refer his case to ORG which has the power to order his release if it is satisfied that it is no longer necessary to detain him for the protection of the public . A different regime , however , applies under the DATE Act to persons serving a mandatory sentence of life imprisonment . In relation to these prisoners , the Secretary of ORG decides the length of the tariff . The view of the trial judge is made known to the prisoner after his trial , as is the opinion of the Lord Chief Justice . The prisoner is afforded the opportunity to make representations to the Secretary of ORG who then proceeds to fix the tariff and is entitled to depart from the judicial view ( NORP v. Secretary of ORG for ORG , ex parte Doody [ DATE ] CARDINAL Appeal Cases CARDINAL ; and see the ORG Secretary , PERSON PERSON , policy statement to ORG , DATE , ORG ) cols . CARDINAL - CARDINAL ) .


CASE OF BOTSKALEV AND ROSTOVSKAYA AND OTHER "PRIVILEGED PENSIONERS" CASES v. RUSSIA

Violation of Article 6 - Right to a fair trial;Violation of Article 1 of Protocol No. 1 - Protection of property

Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev

The applicants are pensioners who live in LOC . Before retirement they used to work in hazardous industries . They had a dispute with a pension authority about the scope of their privileged pensions and appealed to the GPE 's district and town courts .

In DATE the courts held for the applicants and ordered the pension authority to recalculate the pensions . The courts based their findings on ORG . In DATE these judgments became binding and were executed .

On the pension authority 's request , in DATE the district and town courts quashed their judgments due to discovery of new circumstances . The courts found , in particular , that the judgments had ignored the interpretation of ORG given by ORG in DATE and DATE .

The applicants ' cases were remitted for a rehearing and subsequently dismissed .


AHLSKOG and Oy MAPLE HOUSE Ab. v. FINLAND

The first applicant , Mr PERSON is a NORP national , who was born in DATE and lives in PERSON . He owned and administered a limited liability company named ORG Ab , the second applicant . The company was subsequently declared insolvent and wound up . They were represented before the ORG initially by PERSON and subsequently by PERSON PERSON PERSON , lawyers practising in GPE . ORG ( “ the Government ” ) were represented by their Agent , Mr PERSON of ORG .

The facts of the case , as submitted by the parties and as they appear from the documents , may be summarised as follows .

On DATE a bank instituted proceedings against the applicant company , the first applicant and his son with a view to obtaining payment on the basis of promissory notes signed on behalf of the applicant company as a debtor . The first applicant and his son stood surety for the debt . Certain real property owned by the applicant company also served as collateral for the debt . The respondents contested the claim . On DATE ORG ( käräjäoikeus , tingsrätten ) invited their further submissions , urging them to specify on what grounds they contested the claim , failing which the court could render a default judgment . Their submissions were received on DATE .

On DATE ORG rendered a default judgment ordering the respondents to pay the bank MONEY ( ORG ; corresponding to CARDINAL euros ) in capital . The court delivered a default judgment because it considered that the respondents had failed to answer clearly the questions put to them about their grounds for contesting the claim .

On DATE the default judgment was served on the respondents . On CARDINAL DATE they filed an application for a re - trial with the court that had delivered the default judgment and requested a stay of execution . On DATE the court stayed the execution .

Meanwhile , they also lodged a procedural complaint with ORG ( hovioikeus , hovrätten ) . On DATE the court stayed the execution of the default judgment . It reasoned :

“ ... [ T]he default judgment , which is currently subject to complaint , does not form the basis for the insolvency application [ see below ] , as alleged by the applicants in their written observations . The application to declare ORG Ab insolvent is based on the request for payment with a risk of insolvency ( konkurssiuhkainen maksukehotus , betalningsuppmaning vid hot om konkurs ) , which was served on the company on DATE . There is therefore no reason to preclude the use of the default judgment as ... a basis for enforcement in the insolvency proceedings . ”

On DATE ORG dismissed the complaint without considering its merits owing to the fact that the case was pending before the lower court . Thus , the provisions relied on did not operate . ORG decision to stay the execution ceased to have effect .

The applicants appealed . On DATE ORG ( korkein oikeus , högsta domstolen ) dismissed the appeal .

On DATE the ORG quashed the default judgment insofar as it concerned the first applicant and his son but upheld it as regards the company . At the same time it ordered that execution of the judgment should no longer be stayed .

All parties appealed . On DATE ORG stayed the execution of the lower court 's judgment . The case is still pending before the national courts .

The bank presented the applicant company with a request for payment within DATE with a risk of insolvency , which was served on DATE . On DATE the company contested the request .

On DATE the bank petitioned ORG in order that the company be declared insolvent , arguing that it had failed to pay its debt and also relying on the above default judgment of DATE .

On DATE the petition was served on the company , which contested it , arguing that the bank 's claim was not clear and undisputed as required by the then LAW no . CARDINAL ; konkurssisääntö , konkursstadgan ) as the company had lodged an appeal against the default judgment . In its further written submission of CARDINAL DATE the company submitted that neither of the grounds on which the insolvency petition was based , i.e. the request for payment with a risk of insolvency or the default judgment , was sufficient for declaring it insolvent . The company argued that the former could not be used in the proceedings as it had been contested . The claim was not therefore clear and undisputed .

On DATE ORG held an oral hearing at which the company was represented by counsel . In its decision of DATE the court rejected the insolvency petition . It noted that the court had issued the above default judgment owing to the company 's failure to state clearly its grounds for opposing the bank 's claim even when directly asked by the court to do so . The company had lodged an application to set aside the default judgment , which application did not appear to be clearly groundless . In the circumstances of this particular case , the bank 's claim could not therefore be regarded as clear and undisputed .

The bank appealed , requesting that the company be declared insolvent on the ground that it had not paid its debt despite the fact that it had been served with a request for payment with a risk of insolvency . In its letter of appeal the bank stated that the company 's counsel had not submitted any grounds for contesting the insolvency petition at ORG hearing . ORG requested the company to produce its written reply to the appeal by DATE . Following the company 's request dated DATE , in which it stated its intention to provide the bank with full security for its claim , the time - limit was extended to CARDINAL DATE . In its reply of CARDINAL DATE the company maintained that the claim was not clear and undisputed as it had appealed against the default judgment . It further maintained that it was not possible to examine in the course of the insolvency proceedings whether the bank had a claim against it . At this stage the company did not request an oral hearing . Nor did it contest the statement in the bank 's appeal to the effect that the company had been represented by counsel at ORG hearing .

On DATE ORG deliberated and it adopted a judgment . At TIME on DATE it delivered its judgment , quashing the lower court 's decision and declaring the company insolvent based on a promissory note signed on DATE and a request for payment with a risk of insolvency served on the company on DATE . The court held that according to established case - law a claim on the basis of a document liable for an action for debt ( lainhaku , lagsökning ) was considered clear and undisputed . In the present case , the bank had therefore a clear and undisputed claim against the company even if the default judgment was not taken into account . It sent the case back to the lower court for the execution of the winding - up proceedings .

According to the applicants and a report printed from their fax machine , at TIME on DATE the company sent a fax to ORG , in which , inter alia , an oral hearing in the matter was requested on the ground that ORG had not heard the company or taken into account documentary evidence submitted by it before it rendered the above default judgment . According to a letter from the judicial secretary of ORG , the above fax was received by the court only after it had rendered judgment . According to a report printed from the court 's fax machine , it had been received at TIME , i.e. only after the court had delivered its judgment , which it had done at TIME .

The company sought leave to appeal and requested a stay of execution . On DATE ORG refused a request for a stay of execution . On DATE it refused leave to appeal .

In the subsequent winding - up proceedings there were several creditors . During these proceedings the applicant company instituted various civil proceedings against some of its creditors the outcome of which is not known . In its judgment of DATE ORG accepted most of the claims for payment made against the company and decided the priority order of the debts to be settled . It however found that the question of whether there was any foundation for the bank 's claim and , if so , in what amount would first have to be decided in the re - trial of the default proceedings .

On DATE ORG upheld this decision and on DATE ORG refused leave to appeal .

Under NORP law there are various grounds on which a debtor can be declared insolvent . The petition can be lodged either by the debtor or a creditor .

Under the law applicable at the material time the court had to summon the debtor without delay to appear before it in order to express his or her opinion of the insolvency petition , either in a hearing or in a written submission . The debtor had to be declared insolvent unless the debtor proved that he or she could satisfy the creditor or provided acceptable security for the payment of the debt . Even if the debtor failed to appear before the court , it could declare him or her insolvent . It follows from the aim of insolvency proceedings that the debtor could always fend off an insolvency petition by paying the creditor applicant 's claim or by producing security for it ( section CARDINAL(CARDINAL ) of the then Insolvency Act ) .

A creditor , who could prove a clear and undisputed claim against the debtor , could petition to have the debtor declared insolvent if the debtor , having the capacity of a trader , had been urged , through a notary public or in the presence of witnesses , to pay an undisputed and due debt , but he or she had for DATE or longer neglected to satisfy the creditor ( section CARDINAL ( CARDINALd ) of the then Insolvency Act ) .

ORG has established precedents concerning the notion of “ clear and undisputed claim ” . The Government Bill ( no . CARDINAL ) to ORG as regards the enactment of the new LAW no . GPE ) , which replaced LAW in force at the material time , explained the case - law as follows . The word undisputed did not mean that the debtor had acknowledged the claim or that he did not dispute it . In case - law a claim was considered clear and undisputed if it was enforceable . A claim was considered clear and undisputed also if it was based on a document , which on its own fully evidenced it , for example a promissory note or a cheque , by the signing of which the debtor had committed himself or herself to paying the claim . However , if the debtor contested the claim with obvious justification , i.e. if he or she relied on circumstances that gave reason to suspect that the claim was ill - founded , it could not form the basis for the decision to declare the debtor insolvent .

The court was obliged to hold a hearing when the matter required the hearing of witnesses or others in person ( section CARDINAL as amended by Act no . CARDINAL/CARDINAL of ORG in District Courts Act ( laki hakemusasioiden käsittelystä yleisessä alioikeudessa , lag om behandling av ansökningsärenden vid allmän underrätt ; Act no . CARDINAL/CARDINAL ) .

Under the law in force at the material time ORG was obliged to hold a hearing if a party so requested unless it was manifestly unnecessary . This provision applied , in relevant part , also when hearing an appeal lodged in a petitionary matter . ORG had to hold a hearing regardless of whether one had been requested , if the case turned on the credibility of the testimony received or the findings made in an inspection in situ held by ORG , or on new testimony to be produced in ORG . In this event , ORG had to receive the same evidence as had been received in the ORG unless there was an impediment to doing so ( LAW , ORG DATE , as amended by Act no . PERSON and as in force at the material time , of the Code of Judicial Procedure ( oikeudenkäymiskaari , rättegångsbalken ) ) . The appellate court has to examine an insolvency petition expeditiously .

Written observations to ORG may be sent by fax . Such a submission is considered to have reached the court at the point when it is available in the court 's fax machine . If there is no clarification of that time , the time it was sent is also considered to be the time of receipt ( section CARDINAL of ORG ( laki sähköisestä viestinnästä oikeudenkäyntiasioissa , lag om elektronisk telekommunikation i rättegångsärenden ; Act no . CARDINAL/CARDINAL ) .


Giovanni Bonello;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nebojša Vučinić;Nicolas Bratza

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

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

On DATE the applicant , a farmer , requested ORG ( “ the ORG ” ) to confirm his ownership of a plot of land . The council refused his request .

The applicant instituted court proceedings against the ORG , seeking an order obliging them to recognise his ownership of the disputed plot of land .

On DATE ORG held in the applicant 's favour .

On CARDINAL DATE ORG upheld the first - instance court 's judgment . That judgment was final .

On DATE ORG adopted a decision recognising the applicant 's ownership of the above - mentioned plot of land .

On DATE ORG concluded a contract of sale with the applicant in respect of the plot of land .

The applicant did not inform the ORG about the enforcement of the judgment in his favour and it was only from the ORG 's observations that the ORG learned of it .