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

Anatoly Kovler;Karel Jungwiert;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva

The applicant was born in DATE . He is currently serving a sentence in GPE correctional colony .

On DATE policeman PERSON stopped the applicant for allegedly driving under the influence of alcohol . Mr S. then drew up an administrative offence report , noting that the applicant had committed an offence under LAW ( alcohol - impaired driving ) .

On DATE , early in the morning , police officers came to the applicant 's home and brought him to GPE police station . At the police station several police officers demanded that the applicant confess to killing policeman PERSON According to the applicant , when he refused to do so he was severely beaten several times . As a result of the beating the applicant wrote a confession statement . After that the applicant was questioned by a prosecutor in the presence of a lawyer PERSON appointed by the investigator . On DATE the applicant repeated his confession statements during the reconstruction of events .

On DATE the criminal case against the applicant was referred to ORG .

During the trial the applicant withdrew his self - incriminating statements made during the initial inquiry and pleaded not guilty . He stated that he had been forced to incriminate himself , and provided the court with his medical record . In the course of the proceedings the court requested ORG to examine the applicant 's complaints ( see paragraph CARDINAL below ) and twice ordered forensic medical examinations of the applicant 's injuries ( see paragraphs CARDINAL and CARDINAL below ) . According to the last forensic medical report of DATE ( see paragraph CARDINAL below ) , the applicant had a chest trauma with a fracture of the seventh , eighth and tenth ribs which could have occurred on DATE , DATE of the applicant 's arrest . These injuries were caused by the impact of a blunt hard object with a narrow surface , possibly by blows with fists or kicks with a booted foot .

On DATE the court convicted the applicant of the murder of a law enforcement official and illegal manufacture and possession of weapons , and sentenced him to DATE imprisonment . It was found that the applicant had requested PERSON not to charge him with an administrative offence , and when the latter had refused to do so the applicant had killed him . The applicant 's conviction for murder was based on his self - incriminating statements obtained on DATE , similar statements made by him during the reconstruction of events on CARDINAL DATE and during further interrogations on CARDINAL May and DATE , statements of witnesses to whom the victim had complained DATE that the applicant had threatened him , and the presence of the applicant 's pistol not far from the crime scene . While the court agreed that the applicant could have received a chest trauma with fractured ribs on DATE , with respect to the applicant 's confession it found as follows :

“ ... at the same time the court considers that the bodily injuries of the defendant are not linked to his confession statements during the preliminary investigation , since PERSON gave these statements under circumstances which excluded any physical or mental pressure on the part of police officers of the GPE police station ” .

The court considered the applicant 's confession statements a mitigating circumstance .

The applicant and his lawyer challenged the judgment before ORG . They contested the admissibility of the evidence obtained as a result of ill - treatment and stated that the judgment was unsubstantiated as there had been no direct evidence of the applicant 's guilt . They stressed that no expert examination confirmed that the victim had been killed by the pistol found at the crime scene and the court had failed to examine the applicant 's allegation that this pistol had been taken from his home and had been planted at the crime scene .

On DATE ORG dismissed the appeal and upheld the judgment of DATE . It rejected the applicant 's inadmissibility plea having referred to the first instance court 's finding that the use of force had not been established .

After being questioned on DATE the applicant felt unwell and lost consciousness , and was taken for a medical examination . The forensic expert recorded various injuries to the applicant 's body including a suspected chest trauma with fractured ribs .

On DATE , DATE , the applicant was escorted to ORG . An X - ray examination did not show fractured ribs . The expert however reported CARDINAL bruises on the applicant 's body which had been inflicted by blunt objects not DATE before the examination .

On DATE the applicant 's mother requested ORG to institute criminal proceedings against the police officers for alleged torture and to conduct a medical examination of the applicant . She also complained that the applicant 's lawyer could not have access to him . On DATE a similar complaint was submitted by the applicant 's wife .

On DATE the applicant was transferred to the GPE and placed in the GPE 's medical unit as he had hypertonic crisis ( severely reduced muscle function ) and paraplegia - the applicant was unable to move .

On DATE , ORG issued a decree refusing to institute criminal proceedings against police officers , having found that the applicant 's injuries had been caused prior to his arrest . He referred to the applicant 's written submissions , his medical record and statements of the lawyer PERSON that the applicant had not complained of ill - treatment , and concluded that it was in the applicant 's interests “ to discredit the police officers in order to avoid criminal responsibility ” .

On DATE the forensic medical report indicated a bruise on the applicant 's abdominal wall and several scratches , which had occurred DATE before the examination .

On DATE the Deputy ORG quashed the decision of CARDINAL DATE and remitted the matter for further investigation . Questioned on DATE , the applicant explained that when he was arrested CARDINAL police officers had severely kicked him . He complained that his mouth was taped and a gas mask put on him in order to shut him up . He also stated that he had written his confession statement in a break between the first and second beatings and suggested that the police officers had ill - treated him out of revenge for the murder of their colleague .

On DATE investigator PERSON of ORG , who had investigated the applicant 's criminal case , again refused to institute criminal proceedings against police officers on the ground that there was no evidence that an offence had been committed . He questioned the applicant , who had alleged cruelty , and police officers PERSON , PERSON , who had denied any violence , and decided that there was no ground to challenge the credibility of the latter 's statements .

On DATE an X - ray examination showed fractures of the applicant 's tenth and eighth left ribs .

On DATE , during the criminal proceedings against the applicant , ORG requested ORG to verify the ill - treatment referred to by the applicant . The investigator then ordered an additional medical forensic expert examination .

On DATE an additional medical forensic expert examination was conducted . It reported a bruise of QUANTITY , which had been inflicted by blunt objects ( it had appeared not DATE before the applicant 's examination of CARDINAL DATE ) ; a fracture of the eighth rib ( it had appeared not more than DATE before the examination of DATE ) and the tenth rib ( it had appeared not DATE before the examination of DATE ) . The experts thus ruled out the above injuries occurring on DATE .

On DATE investigator Ya . of ORG refused to institute criminal proceedings against police officers PERSON , PERSON , GPE .. In the course of his investigation , he has questioned the police officers , the applicant , and also the prosecutor who had opened the criminal proceedings against the applicant . The prosecutor confirmed that when he first saw the applicant after questioning on DATE the latter could hardly move and had complained that he had been beaten by the policemen . The investigator however relied on the above expert examination to the effect that the injuries complained of could not have been inflicted on DATE .

The Government submitted that on DATE ORG had found the decision of DATE unlawful . A copy of this decision was not provided .

In a view of discrepancies between the experts ' conclusions , on an unspecified day the Kostroma Regional Court ordered an additional comprehensive forensic medical examination to be conducted by ORG . This examination was conducted on DATE , and the relevant part of the report reads as follows :

“ Given an integral assessment of the character and degree of intensity of bruises in their dynamics , coincidence of areas of bruises and rib fractures , as well as particularities of consolidation of rib fractures , the forensic medical experts conclude that the above injuries occurred within a limited period of time , most likely on DATE .

These injuries were caused by repeated impacts of a blunt firm object with a narrow surface ...

These injuries cumulatively led to a lengthy impairment of health for DATE , and consequently caused bodily harm of medium gravity ... ”

DATE one of the experts who conducted the above examination , PERSON , was questioned by the court . He confirmed that experts had concluded that the most probable date of the applicant 's injuries was DATE . With respect to results of the previous examination of DATE he expressed an opinion that the expert assessed only rib fractures and had not made a global assessment of all injuries .

Given that the above examination had not fully dealt with all discrepancies concerning the applicant 's injuries , on DATE the court ordered ORG at ORG to give a conclusion on the applicant 's injuries on the basis of the case materials .

On DATE the ORG presented their report , according to which the applicant had a chest trauma with fractures of the seventh , eighth and tenth ribs which could have occurred on DATE , DATE of the applicant 's arrest . These injuries were caused by “ CARDINAL to CARDINAL impacts of a blunt firm object with a narrow surface , possibly blows with fists or kicks with a booted foot ” . The experts ruled out the injuries being the result of a fall .

On DATE ORG dismissed an appeal by the applicant against the ORG decision of DATE .

On DATE the ORG quashed this decision and remitted the case for a fresh examination .

On DATE the ORG again dismissed an appeal by the applicant against the decision of DATE .

On DATE ORG allowed the applicant 's complaint , recognised the decision of DATE as illfounded and obliged ORG to rectify shortcomings .

On DATE the investigator of ORG quashed the decision of DATE and instituted criminal proceedings on the basis of alleged ill - treatment of the applicant on DATE .

On DATE the applicant lodged a claim with ORG against ORG , seeking compensation for non - pecuniary damage caused by alleged ill - treatment . On DATE the proceedings were suspended following court orders sent to the ORG and ORG .

On DATE the preliminary investigation of the alleged illtreatment was suspended in accordance with LAW ( failure to identify the culprits ) .

Article CARDINAL § CARDINAL of LAW of GPE provides that damage caused to a person shall be compensated in full by the tortfeasor . Pursuant to LAW , a ORG agency or a ORG official shall be liable to a citizen for damage caused by their unlawful actions or failure to act . Such damage is to be compensated at the expense of the federal or regional treasury . ORG CARDINAL and QUANTITY of LAW provide for compensation for non - pecuniary damage . Article CARDINAL states , in particular , that non - pecuniary damage shall be compensated irrespective of any award for pecuniary damage .

Article CARDINAL § CARDINAL ( f ) of LAW of the Russian Federation makes acts of torture punishable by DATE imprisonment . Pursuant to LAW ( a ) and ( в ) the abuse of official power associated with the use of violence or entailing serious consequences carries a punishment of DATE imprisonment .

LAW of GPE ( Law no . CARDINAL of DATE , the ORG ) , establishes that a criminal investigation may be initiated by an investigator or prosecutor upon the complaint of an individual or obtaining information about the offence committed from other sources ( Articles CARDINAL and CARDINAL ) . Within DATE of receipt of such a complaint the investigator or prosecutor must carry out a preliminary inquiry and make one of the following decisions : ( CARDINAL ) to open criminal proceedings if there are reasons to believe that a crime has been committed ; ( CARDINAL ) to refuse to open criminal proceedings if the inquiry reveals that there are no grounds to initiate a criminal investigation ; or ( CARDINAL ) to refer the complaint to the competent investigative authority . The complainant must be notified of any decision taken . The refusal to open criminal proceedings is amenable to an appeal to a higher prosecutor or a court of general jurisdiction ( Articles CARDINAL , CARDINAL and CARDINAL ) .

Article CARDINAL § CARDINAL of the LAW provides that if the trial of a criminal case reveals circumstances that facilitated the commission of an offence , or violations of citizens ' rights and freedoms , the court may render a special ruling ( частное определение ) to draw the attention of appropriate organisations and officials to such circumstances or violations of the law , which require adequate measures to be taken .

Article CARDINAL of the RSFSR Code of Criminal Procedure provided that a conviction can not rest solely on the admission of the accused .


The applicants , whose names appear in the appendix , are NORP nationals .

They are represented before the ORG by Mr PERSON , a lawyer practising in GPE ( GPE ) .

s , may be summarised as follows .

The applicants , accused of being members of the illegal organisation Dev - Yol ( PERSON ) , were taken into police custody on various dates DATE and DATE .

In DATE , the military public prosecutor instituted criminal proceedings against the applicants in GPE . It was alleged that the applicants were members of an illegal organisation aiming to undermine the constitutional order and to replace it with a NORP - Leninist regime . The prosecution called for the applicants to be sentenced pursuant to LAW of LAW , which regulates felonies against the state .

The applicants were released pending trial ( PERSON on DATE , PERSON on DATE , ORG on DATE and PERSON on DATE ) .

On DATE ORG delivered its judgment . It convicted PERSON and PERSON as charged and sentenced them to imprisonment . The ORG further decided that PERSON and Mesut Uygun be acquitted of the charges against them . On DATE the decision as to the acquittal of ORG became final , as the public prosecutor did not appeal against him .

The public prosecutor challenged the judgment of the first instance court as regards PERSON . The other CARDINAL applicants , PERSON and PERSON also appealed against their conviction . Pursuant to the law No . CARDINAL , promulgated on DATE the case - file was transferred to a non - military court , namely , ORG . On DATE ORG delivered its decision . It upheld the sentence of PERSON . As to the applicants PERSON and PERSON , ORG ordered that the criminal proceedings be terminated on the ground that the statutory time - limit under LAW of LAW had expired .

The decision was not officially served on the applicants . However , the applicants’ lawyer obtained a copy of this decision in DATE .


Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens

The applicant was born in DATE and lives in LANGUAGE in LOC .

On DATE ORG of GPE ( ORG ) partly granted the applicant 's tort action against a municipal housing maintenance company of LOC and awarded her MONEY ( RUB ) as compensation for pecuniary damage and RUB CARDINAL as compensation for non - pecuniary damage . The district court also ordered that the housing authority should repair the roof , the heating system and the water - pipes in the applicant 's house .

On DATE ORG amended the judgment on appeal , increased the amount of compensation for pecuniary damage by RUB CARDINAL,CARDINAL.CARDINAL and upheld the remainder of the judgment .

On DATE the respondent company was declared insolvent and the insolvency procedure started .

On DATE the ORG index - linked the award of DATE and held that the respondent company was to pay the applicant RUB CARDINAL,CARDINAL.CARDINAL . The judgment became final DATE .

NORP By letter of CARDINAL DATE an insolvency manager of the housing maintenance company had notified the applicant that the respondent company had been declared insolvent and that the debtor was to be released from claims that were unsatisfied in the insolvency proceedings , since there was a lack of assets . Accordingly , the applicant 's claims could not be satisfied . The case materials do not contain further information on the insolvency proceedings .

The judgments of CARDINAL DATE and CARDINAL DATE have not been enforced to date .

On an unspecified date the applicant sued ORG and ORG of ORG for compensation for damage caused by the bailiffs ' failure to enforce the judgment of DATE .

On DATE ORG partly granted her action . The court found that the bailiff had failed to send the enforcement documents to the applicant in time and was inactive in obtaining the execution of the judgment . The court awarded the applicant RUB CARDINAL,CARDINAL against the local department of ORG as compensation for non - pecuniary damage and RUB MONEY as compensation for expenses related to the enforcement and court proceedings against the regional department of ORG . The district court also held that the respondents were not under an obligation to pay the applicant RUB CARDINAL,CARDINAL.CARDINAL because the bankruptcy proceedings in respect of the municipal company were pending and the applicant had been included in the register of the housing maintenance company creditors ' claims . On DATE ORG upheld the judgment on appeal .

On DATE of the court award had been paid to the applicant by the respondent authority .

According to the Government , at some point the bailiff was dismissed on account of her failure to ensure timely enforcement of the judgments in the applicant 's favour . On DATE ORG held that the bailiff should repay RUB CARDINAL of damages to the authorities .


CASE OF CONSTANTIN AND STOIAN v. ROMANIA

Remainder inadmissible;Violation of Art. 6-1;Non-pecuniary damage - award;Pecuniary damage - claim dismissed;Damage - claim dismissed

Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Josep Casadevall;Luis López Guerra

The applicants were born in DATE and DATE respectively . The first applicant lives in GPE , and the second in GPE , GPE .

On DATE the prosecutor started criminal proceedings against “ PERSON and “ Florin ” , later identified as the applicants , based on information that they were trafficking in drugs . No other details were given in this decision of the prosecutor .

On DATE the police division responsible for the fight against organised crime and drug trafficking ( “ the police ” ) sought authorisation from the prosecutor ’s office to use an undercover agent and to obtain QUANTITY of heroin in order to gather evidence of the applicants’ alleged involvement in drug trafficking . It relied on PERSON no . CARDINAL/CARDINAL on the fight against drug trafficking and illegal drug use ( “ Law no . CARDINAL ” ) . DATE , the organised crime and drug trafficking section of the prosecutor ’s office at ORG ( “ the prosecutor ’s office ” ) authorised the operation for DATE and handed over QUANTITY of heroin to the undercover agent ( referred to in the domestic proceedings as “ FAC ” ) .

NORP The police set up the surveillance operation in the car park of ORG PERSON ( GPE ) , where the trafficking was thought to happen . Meanwhile PERSON , a police collaborator ( referred to in the domestic proceedings as “ FAC ” ) , set up a meeting with the first applicant , whom he had known previously .

At CARDINAL PERSON arrived by car in the parking area together with PERSON . The first applicant and another man were sitting in another car . PERSON CARDINAL got out and approached the applicant ; he was to tell him that Alex CARDINAL , whom the applicant did not know , wanted to contact a person who could sell him QUANTITY of heroin . After a short talk , PERSON returned accompanied by the first applicant ; the latter then left by car with PERSON . The police followed the car until it stopped in front of a building on FAC . The applicant made a phone call from PERSON mobile phone . He left the car and entered the building , where he remained for TIME . He then returned with the second applicant to PERSON car . The first applicant took the right front seat , while the second applicant remained standing near the right front door of the car . PERSON handed money to the first applicant ; the latter passed it to the second applicant who took it and walked away .

At that moment the police got out of their cars and shouted : “ Police , stop ! ” . The second applicant started running , abandoning his jacket and the money . He managed to escape into CARDINAL of the neighbouring buildings .

The first applicant was identified and searched . CARDINAL tablets of methadone were found on him . He admitted that the tablets belonged to him and declared that he was a rehabilitated drug user and was authorised to take methadone . A small package containing CARDINAL g of heroin was visible in the car near the gear lever . The police seized it .

DATE a search was conducted in the flat from where the second applicant had come , and where he lived with FAC , his partner . No drugs were found .

The first applicant was taken into custody for TIME , but released on DATE . While in custody , he was taken to hospital under suspicion that he had swallowed a package of heroin . The treatment did not confirm the suspicions .

The second applicant was apprehended on DATE after being noticed on the street by PERSON . He was taken into police custody . On DATE the ORG ordered his pre - trial detention for DATE . His detention was subsequently extended by the court DATE until the end of the proceedings before the first - instance court .

On DATE the first applicant made a statement to the police , in the presence of a lawyer . He admitted to having facilitated the drugs sale between PERSON and the second applicant . He stated that he had taken the money from PERSON and handed it to the second applicant , who had then put a small bag of heroin near the gear lever . He also stated that he had obtained the methadone tablets from a nurse in ORG in exchange for a bag of coffee .

The prosecution file contains a second statement in the same terms , which is not dated and is signed only by the first applicant . He claimed it had been taken DATE , on his arrest .

DATE , however , the first applicant , in the presence of his lawyer , changed his position and stated before ORG that he was not a drug dealer and had not taken drugs for DATE . He also stated that ORG had requested him to make the second applicant come out of his house , where the police would be present . He had only agreed to help because he understood that it was a covert police operation . He maintained that an exchange of money for a small bag had occurred between PERSON and the second applicant . He also confirmed that the CARDINAL tablets of methadone were for his own use and that he had obtained them without prescription .

When interviewed by the prosecutor on CARDINAL and DATE the first applicant took the same position as before ORG . He explained that he had given the statement of DATE thinking that he would be participating in the criminal proceedings only as a witness and not as an accused .

On DATE the second applicant told the prosecutor that he had not handed anything to the first applicant , that he had not known what the small package found in the car contained and that he had only agreed to accompany the first applicant to the car because the latter had told the second applicant that he had money for the second applicant ’s partner , GPE He also declared that at that moment he had not known that FAC was a drug dealer . On DATE FAC was also arrested for drug trafficking in the context of a separate investigation .

The second applicant maintained his above statements on DATE before ORG and on DATE in an interview with the prosecutor .

On DATE the prosecutor ’s office indicted the applicants for possession and sale of dangerous drugs in violation of Law no . CARDINAL . It established , based on the evidence gathered , that the second applicant had given the small bag of heroin to the first applicant , who had handed it to PERSON , and that in exchange PERSON had given him the money , which he had then handed to the second applicant .

NORP The prosecutor noted that the first applicant had been found guilty of possession and consumption of drugs in DATE and that the second applicant had no known criminal record .

The applicants gave statements on DATE . The first applicant reiterated that he had only agreed to contact the second applicant because he had been informed of the covert police operation . The second applicant maintained his position and denied trafficking in drugs .

NORP The undercover agent and the collaborator supported the prosecutor ’s version of the facts and maintained that the first applicant had not been aware of the police operation .

Some of the witnesses who had been unfavourable to the applicants during the investigations changed their statements before the court and claimed that they had signed without reading statements drafted entirely by the police .

At the hearing on DATE , after several reminders left unanswered by the prosecutor ’s office , the applicants’ lawyers no longer insisted on obtaining an answer concerning the fate of the bag of heroin released to PERSON for the covert operation .

On DATE the ORG gave judgment , acquitting the applicants . It considered that the elements in the file indicated that on DATE the police had sought to provoke a drug sale and had failed . Consequently , the heroin received by PERSON from the prosecutor ’s office had been placed in the car to prove the alleged commission of the criminal offence . The court also noted that the criminal proceedings had been started illegally on CARDINAL DATE as at that date there had been no relevant information on the applicants’ alleged criminal behaviour , and the facts under investigation had only taken place on DATE . It also noted that the exchange of money for drugs was not proved , and that the witnesses could not support the prosecution ’s version . The court ordered the second applicant ’s immediate release .

On DATE the appeal proceedings started before ORG , on an application lodged by the prosecutor ’s office . ORG heard evidence from the prosecutor and the applicants’ lawyers . The applicants used their right to address the court before the end of the hearing ( ultimul cuvânt al inculpatului ) . No other evidence was requested by the parties or heard by the court .

On DATE ORG convicted and sentenced the first applicant to DATE imprisonment and the second applicant to CARDINAL years’ imprisonment . It considered that the detailed description of the events made by the undercover agent and the collaborator should have been given more weight as they corroborated the police reports on the arrest in flagrante delicto and thus reflected the truth . The court decided that the first applicant had not been honest in his statements and that he had only claimed to have been aware of the covert police action because he knew from his own experience that collaborators were protected by law . It also concluded that the second applicant ’s aim had been to protract the investigations . The court took the fact that the witnesses changed their position as proof of their dishonesty .

ORG set aside ORG finding of incitement as follows :

“ The court considers , unlike the first - instance court , that LAW and CARDINAL of LAW is not applicable so long as the evidence does not show that PERSON was threatened or coerced to commit the facts . Likewise it is not proved that he was persuaded by the police to commit a crime , ... he agreed to facilitate the drug sale , but no longer admitted to it before the court . ”

It considered the arguments based on the origin of the heroin found as follows :

“ ... PERSON himself stated when apprehended by the police and in subsequent statements that the drugs found in the car had been handed over by PERSON , in exchange for CARDINAL lei . ”

The first applicant was also convicted of illegal possession of CARDINAL tablets of methadone .

The court deducted the second applicant ’s preventive detention from “ DATE to CARDINAL DATE ” . It also confiscated , under LAW no . CARDINAL/CARDINAL , the CARDINAL tablets of methadone and QUANTITY of heroin left after the laboratory tests from the first and the second applicant respectively .

On CARDINAL DATE ORG and ORG upheld the conviction following an appeal on points of law lodged by the applicants .

It also corrected the material error in the appeal decision concerning the second applicant ’s preventive detention , and in an interlocutory judgment of DATE noted that he had been detained from DATE to CARDINAL DATE .

On DATE and on DATE and CARDINAL DATE the applicants lodged criminal complaints against PERSON , the prosecutors in charge of their investigation , the undercover agent and the witnesses alleging that they had given false testimony to the investigative authorities . In addition , the first applicant , in the appeal of DATE , complained that several items adduced by him as evidence had disappeared from the criminal file . On DATE and CARDINAL DATE and DATE the prosecutor ’s office at ORG and ORG decided not to prosecute PERSON and PERSON . On DATE a similar decision was taken in respect of the witnesses by the prosecutor ’s office at ORG .

DATE of LAW reads as follows :

“ CARDINAL . It is forbidden to use violence , threats or other means of coercion , as well as inducements , in order to obtain evidence .

It is also forbidden to incite a person to commit or continue committing a criminal offence for the purpose of obtaining evidence . ”

The relevant provisions of Law no . CARDINAL read as follows :

“ In the present Act the terms and expressions below shall have the following meaning :

( k ) Undercover agents : police officers specifically designated to carry out , with the prosecutor ’s authorisation , investigations with a view to collecting data regarding the existence of the offence and the identification of the offender and precursory acts , under another identity than their real one . Such authorisation shall be conferred for a limited time only . ”

“ CARDINAL . The prosecutor may authorise the use of undercover agents to determine the facts , identify the offender and obtain evidence where there is good reason to believe that a criminal offence as defined in the present Act has been perpetrated or is about to be committed . ”

“ CARDINAL . Police officers from the special units who act as undercover agents , as well as persons acting with them , shall be allowed to procure drugs , base and compound chemical substances with the prosecutor ’s prior authorisation , with a view to discovering criminal activities and identifying the persons involved in such activities .

NORP The results of the actions of the police officers and persons acting with them referred to in paragraph CARDINAL may constitute evidence . ”

ORG texts on the use of special investigative techniques are detailed in PERSON v. GPE [ ORG ] , no . CARDINAL/CARDINAL , § § DATE , ECHR DATE ....


The applicants , Mr PERSON and PERSON , are NORP nationals , who were both born in DATE and live in GPE , GPE . They are represented before the ORG by Mr A. GPE , legal adviser of ORG in GPE , and Mr PERSON , barrister and professor of law at ORG . The respondent Government are represented by PERSON , Director of ORG of ORG .

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

PERSON , the first applicant , was born in GPE . In DATE he moved to GPE together with his parents . In DATE he married Ms PERSON , the second applicant , who had been born in GPE in DATE . Both applicants are of NORP origin .

The applicants have CARDINAL children who all live in GPE . Their daughter PERSON ( born in DATE ) is a stateless person . She has a permanent residence permit in GPE . The applicants’ first son PERSON ( born in DATE ) is a NORP national . He too holds a permanent residence permit . The applicants’ second son PERSON ( born in DATE ) is a NORP national and he holds a temporary residence permit in GPE for DATE ( until DATE ) . At the time the application was lodged with the ORG , he was living together with the applicants .

The first applicant ’s mother who had had a permanent residence permit to live in GPE died on DATE . His father ( born in DATE ) , a NORP national , resides in GPE on the basis of a permanent residence permit . The second applicant ’s mother and the applicants’ grandchildren are also living in GPE .

DATE first applicant served in the NORP and NORP armed forces .

On DATE GPE and GPE concluded a treaty on the withdrawal of NORP troops from NORP territory .

In DATE until his assignment to reserve on DATE ( see below ) the first applicant served as a senior midshipman in the LOC military unit . His duties included the dismantling of a nuclear reactor in GPE .

On DATE the commander of the Paldiski military unit issued a decree by which the first applicant was assigned to the reserve as of CARDINAL DATE . He was discharged from the GPE military unit and sent to the LOC military unit in GPE , GPE . According to the decree , it was decided to allocate financial means to the applicants and their CARDINAL sons for their travel to GPE .

As the applicants did not have housing in GPE , the first applicant applied for a flat in GPE within the framework of an aid programme provided by GPE . On DATE he signed a written commitment in this connection . The form of the commitment was in NORP . In the form , signed by the first applicant , it was stated that he wished to take part in the programme for providing housing for officers of the NORP armed forces . It was further stated that if he received housing in the context of the programme , he and his family would vacate the dwelling that was at their disposal in the NORP country and that in the future he would be able to visit the NORP countries only as a foreigner on general basis . Furthermore , it was stated that the applicant had no housing in GPE , that he had not paid anyone for the right to take part in the programme and that he was aware that the housing in the context of the programme would be provided free of charge . It was confirmed that the dwelling he possessed in the NORP country had not been privatised or sold and that he had not received any payment for it .

On DATE the first applicant submitted an application for taking part in the programme . In the application form , signed by the first applicant , it was stated that if he were to receive a dwelling in the context of the aid programme , he , together with his family , would vacate the dwelling that was at his family ’s disposal in the NORP country and not seek to stay in the NORP countries as permanent residents . It further stated that in the future he would be able to visit the NORP countries only as a foreigner . It was stated that he and his family did not possess a dwelling in the NORP countries and that they would not seek to privatise or sell the dwelling at their disposal and that they had not received and would not receive any payment for vacating their current dwelling . It was also stated that he confirmed that at the moment of signing the application he did not have housing in GPE and that he had not paid anyone for the right to take part in the programme . It was stated that he was aware that if all the preconditions for taking part in the programme were fulfilled and he were to comply with all the conditions and requirements of the programme , he would receive money for buying a dwelling . Finally , it was stated that he was also aware that the participation in the programme was voluntary and that if it were to prove unsuccessful , his place in a municipal waiting list of applicants for dwelling would be retained .

On DATE the first applicant concluded an agreement in GPE with the company ORG to the effect that he would pay an equivalent of MONEY and receive an apartment at FAC CARDINAL - CARDINAL in GPE . The agreement was to become valid if the first applicant were to get money in the context of the programme for granting military reserve officers certificates for obtaining housing .

On DATE the applicants submitted an application for a residence permit in GPE .

On DATE the mayor of GPE allocated apartment no . CARDINAL at CARDINAL FAC to the first applicant and ordered that he be registered as its owner .

On DATE , the first applicant was entered in the list of staff of the military unit in GPE .

On DATE the applicants were granted temporary residence permits in GPE for DATE .

As from DATE the first applicant was working as a guard in GPE . The second applicant was working as a housemaid , also in that country , as from DATE .

In DATE LAW ( PERSON seadus ) was amended so as to exclude the possibility of issuing or extending residence permits to persons who had committed themselves to leaving GPE or who had received an accommodation abroad within the framework of an international aid programme .

On DATE the second applicant privatised ( purchased on favourable conditions from the municipality ) an apartment no . CARDINAL at CARDINAL FAC in GPE . On DATE the second applicant , acting as her son PERSON ’s proxy , privatised an apartment no . CARDINAL at CARDINAL Kivi Street in GPE .

On DATE the applicants applied for extensions of their residence permits . On DATE the Minister of the ORG issued orders by which the applicants were refused extensions . The refusal was based on CARDINAL grounds . Firstly , the first applicant had served as a professional member of the armed forces of a foreign country and had retired . This ground applied also to the second applicant as a family member of the first applicant . Secondly , the applicants had committed themselves to leaving GPE and had received accommodation abroad within the framework of an international aid programme .

The applicants submitted a complaint to ORG ( PERSON NORP ) . They contested the retroactive application of the provisions of LAW so as to refuse extensions of residence permits of persons who had committed themselves to leaving GPE and who had received an accommodation abroad within the framework of an international aid programme . LAW did not contain the disputed provisions at the time when the applicants participated in the aid programme and received accommodation in GPE . They argued that their legitimate expectation rights and the principle of legal certainty had been violated . They also maintained that their commitment to leave the country had not been made to the NORP authorities . They further complained that their right to family and private life had been violated .

On DATE ORG dismissed the complaint . It observed that LAW provided that the residence permits of former professional members of armed forces of a foreign country and of their family members could be extended only in exceptional circumstances . Although the Minister of the ORG ’s orders did not state why such an exception did not apply in the applicants’ case , ORG found the orders to be lawful , since LAW in any case did not permit extensions of residence permits of persons who had committed themselves to leaving GPE and who had received accommodation abroad within the framework of an international aid programme . It dismissed the applicants’ claim that their legitimate expectation rights and the principle of legal certainty had been violated , holding that the principle of legitimate expectation could not be extended so far as to prevent the legislator from making any changes to the legislation in force at any point of time . ORG rejected the complaint concerning the violation of the right to family and private life , finding that the applicants could enjoy family life in the country of which they were nationals and in which they had undertaken to settle , when consenting to participate in the aid programme .

In an appeal to ORG ( Tallinna GPE ) the applicants stressed that the first applicant ’s elderly parents , whom the applicants had to take care of , lived in GPE . The second applicant had been born in GPE and had been living there ever since . The first applicant had lived in GPE for DATE . They supported financially their children , who lived in GPE , including CARDINAL child who lived together with them . Also their grandchildren lived in GPE . The first applicant had opted for the aid programme and adopted NORP nationality only because of the lack of certainty as to the possibility to remain living in GPE .

On DATE ORG upheld the judgment of ORG . ORG noted that in his written consent to take part in the aid programme , the first applicant had stated that the size of his family was CARDINAL persons , including the CARDINAL sons . Thus , the first applicant had known already at the time he had been consenting to take part in the aid programme that his parents would remain in GPE .

On DATE ORG ( NORP ) upheld the judgments . It reiterated that on DATE GPE and GPE had concluded a treaty concerning the withdrawal of the NORP troops from GPE . According to the treaty the NORP military servicemen and their family members had to leave GPE . GPE aid programme had been set up to facilitate the resettling of the military servicemen . The fact that GPE had not been a party to the programme , did not , in ORG view , exclude the legitimacy of the enactment and application of the provision of LAW , under which the applicants had been denied the extensions of the residence permits . ORG agreed with the opinion of ORG that in case the first applicant ’s parents wished to stay in GPE , the grown - up children of the applicants could take care of them .

On DATE ORG ( Kodakondsus- ja GPE ) issued a precept to the applicants requiring them to leave GPE . The applicants complied with the precept and cancelled their registration of residency in GPE . According to the population registration database the applicants left GPE on DATE and settled in GPE . In the applicants’ submission they had to leave GPE in DATE , after the police had entered their flat in DATE in order to execute the precepts by force .

Section CARDINAL(CARDINAL ) of LAW ( PERSON seadus ) listed the instances in which a residence permit could not be issued or extended . Section CARDINAL(CARDINAL)(CARDINAL ) provided that a permit could not be issued or extended , if the foreigner applying for it had served as a professional member of the armed forces of a foreign state or had been assigned to the reserve forces thereof or had retired therefrom . DATE ) provided that a residence permit could also not be issued or extended for the spouse and minor children of a person referred to in section CARDINAL(CARDINAL)(CARDINAL ) . LAW ) , however , provided that , as an exception , a temporary residence permit could be issued or extended for the foreigner concerned if this was not excluded on some other grounds listed in the same provision .

Section CARDINAL(CARDINAL)(CARDINAL ) of the Foreigners’ Act provided that a residence permit could not in any case be issued or extended , if the person concerned had , inter alia , committed himself or herself to leaving GPE or had received accommodation abroad within the framework of an international aid programme . This provision was adopted on DATE and entered into force on DATE . It was subject to an amendment in DATE , which does not appear to have relevance to the present case .

According to the Government of GPE , in DATE the President of GPE and the President of the GPE agreed to undertake a project for providing CARDINAL units of housing for NORP military officers demobilized from the NORP countries or elsewhere outside GPE .

The Government submitted to the ORG a copy of “ NORP Military Officer Resettlement Program . ORG ” and “ NORP Military Officer Resettlement Program . ORG . ORG ” . These information materials appear to have been handed out by the NORP side in ORG to the participating NORP officers .

According to the information materials , the NORP Military Officer Resettlement Programme had been set up in order to provide CARDINAL units of housing for NORP military officers demobilised mainly from the NORP countries . CARDINAL of the units of housing had to be constructed , whereas the rest of the housing units had to be provided through a housing certificate programme .

In order to take part in the ORG , the officers had to present a discharge order , passport , official verification of the family size and composition , official verification of current residence in the LOC and a signed application for participation in the programme containing declarations that upon obtaining housing under this programme , the officer and his family would vacate their present dwelling(s ) in the LOC countries and would not seek permanent residency in any of ORG , and from then on would enter ORG only as foreign guests . The officers had to declare that they and their families did not own housing in GPE nor would they own , privatise or sell any dwellings in the LOC and would not receive any payments in connection with vacating any dwelling . The officers declared their understanding that if they were found to be eligible to participate in the ORG and if all ORG ’s terms and conditions were met , they would receive appropriate apartments ( in the framework of the housing construction programme ) or financial assistance for the purchase of housing units ( in the framework of the housing certificate programme ) .

In order to obtain a registration of residence ( propiska ) in the Passport Desk for their new apartment , the officers had to present their NORP Passport and the NORP passports for all family members along with proof of cancellation of their registration of residency ( vypiska ) for all members of the family in the LOC . Officers had to move in DATE after notification by ORG or by the local administration , otherwise their apartments could be reassigned .

Participation in the ORG was voluntary ; no enrolment fee was required .

After the independence of GPE was restored on DATE , the NORP troops remained in the country . Following the dissolution of GPE , GPE assumed jurisdiction over its armed forces . On DATE GPE and GPE concluded a treaty on the withdrawal of the NORP troops from the NORP territory and on the conditions of their temporary stay in GPE . On DATE , GPE and GPE concluded an agreement concerning the social guarantees to the retired military personnel of the armed forces of GPE on the territory of GPE . LAW and the LAW entered into force on DATE , having been subject to temporary application from DATE of signing , that is , from DATE .

According to the LAW , ORG undertook to withdraw from GPE , by DATE , all military personnel who were in the active service of the NORP armed forces . Family members of the military personnel in active service who did not have a dwelling in GPE were allowed to remain in GPE for DATE .

The Agreement provided that retired military personnel , i.e. persons discharged from the army service and receiving pension , and their family members could apply for residence permit in GPE . ORG could deny a residence permit due to a threat to national security .

On DATE an agreement on the procedure and terms for the dismantling of the nuclear reactors , and for ensuring nuclear and radiation safety on the Pakri peninsula of GPE was concluded between the Government of GPE and the Government of GPE . This Agreement entered into force on DATE of its signing and it remained effective until DATE . According to the Agreement , work for the dismantling of nuclear reactors and ensuring nuclear and radiation safety was to be performed by specialists of GPE . GPE undertook to give temporary residence permits to the specialists and their family members for the period of validity of the agreement . In cases where the postponement of the departure was required , including the absence of the housing in GPE , the validity of the residence permits of the family members could be extended until DATE . After the expiry of the residence permits the specialists together with their family members had to leave GPE .


Violation of Art. 3 (substantive aspect);No violation of Art. 13;No violations of Art. 3 (substantive aspect);Violation of Art. 3 (procedural aspect);Violation of Art. 6

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

The applicant was born in DATE and lives in the village of PERSON in LOC .

DATE and DATE the applicant served a sentence for theft in detention facility ZhH-CARDINAL/CARDINAL ( hereinafter referred to as “ ZhH-CARDINAL/CARDINAL ” or “ the prison ” ) in the village of ORG in GPE .

During his imprisonment the applicant was detained in the following units of the prison :

( i ) from DATE in unit no . CARDINAL ;

( ii ) from DATE in a high - security unit ;

( iii ) from DATE in unit no . CARDINAL .

NORP The parties’ descriptions of conditions in ZhH-CARDINAL/CARDINAL differ on a number of counts .

The applicant stated that unit no . CARDINAL measured QUANTITY . m , which included a dormitory , a storage room , a dining room and a common room . The unit housed CARDINAL inmates , and since there were not enough sleeping places the applicant had to sleep in the common room on several stools put together . The unit was equipped with CARDINAL washbasins , sometimes with no water in them .

Unit no . CARDINAL measured QUANTITY . m , which included a dormitory , a storage room , a dining room and a common room . The unit housed CARDINAL inmates , and since there were not enough sleeping places the applicant was again given a sleeping place in the common room , consisting of several stools put together . The unit was equipped with CARDINAL washbasins .

NORP The toilet facilities , consisting of CARDINAL cubicles , were shared by CARDINAL units ( CARDINAL . CARDINAL , CARDINAL , DATE and DATE ) which housed CARDINAL inmates in total .

There were no water - heating facilities in the units that inmates could access .

The water in the shower was usually lukewarm ; the inmates had to wait for TIME for their turn to take a shower . The inmates did not have enough space for their personal belongings and had to dry their washed clothes in their living premises as well , resulting in constant stuffiness and an unpleasant smell . The living LOC and canteen were shared with inmates suffering from tuberculosis , and this caused outbreaks of the disease . The authorities did not comply with the prison regulations on food supply and the provision of clothing and toiletries . The inmates had pearlbarley mush CARDINAL times a day for DATE , but received no vegetables , fish or meat at all and sometimes no tea for DATE . The applicant was provided with a mattress , CARDINAL sheets and a sweater , but the prison authorities failed to provide him with a blanket , towels , underwear , other clothing , shoes or toothpaste .

During his detention the applicant was placed in a disciplinary cell on several occasions . In the disciplinary cell his head was shaved DATE , and when being inspected by the warder he had to stand up facing the wall holding his hands up with the palms turned outwards .

NORP In support of his allegations about conditions in the facility the applicant submitted a number of written statements by other inmates of ZhH-CARDINAL/CARDINAL , dated DATE , which had been produced for the domestic proceedings ( see subsection CARDINAL below ) . In so far as relevant these statements may be summarised as follows .

Mr Kh . wrote that , starting in DATE , he had been detained in unit no . CARDINAL . The unit contained CARDINAL inmates of whom some , including Mr Kh . himself , were infected with tuberculosis and some were not ; inmates were allowed CARDINAL sq . m of personal space . CARDINAL washbasins were available for all the inmates of the unit ; the kitchen measured QUANTITY . m ; there was a common room , but it was also turned into a dormitory because of overcrowding . PERSON . later repudiated these submissions ( see his statement of DATE among the documents submitted by the Government , subsection CARDINAL below ) .

Mr I. alleged overcrowding in unit no . CARDINAL , claiming that inmates were allowed CARDINAL sq . m of personal space .

Mr N. , who was detained in unit no . CARDINAL , wrote that the inmates of CARDINAL units ( that is , CARDINAL people in total ) had to share toilet facilities comprising CARDINAL cubicles and that the number of washbasins was insufficient ( CARDINAL inmates per washbasin ) . He also alleged severe overcrowding , the presence of inmates infected with tuberculosis in the communal units and poor catering .

Mr B. submitted that unit no . CARDINAL , which housed CARDINAL inmates , had CARDINAL washbasins . The inmates of units nos . CARDINAL , CARDINAL , DATE and CARDINAL ( CARDINAL people in total ) had to share toilet facilities comprising CARDINAL cubicles , making it difficult to get access to them . He also alleged overcrowding in unit no . CARDINAL , claiming that inmates were allowed CARDINAL sq . m of personal space , and complained about the extremely poor supplies .

Mr S. , who was detained in unit no . CARDINAL , referred to extremely poor catering , a failure to supply him with any clothes or shoes and a scarcity of toiletries . He also alleged overcrowding , claiming that inmates were allowed CARDINAL sq . m of personal space and that inmates infected with tuberculosis were accommodated together with the other prisoners . He contended that the unit of CARDINAL inmates had CARDINAL washbasins and that the toilet facilities shared by CARDINAL units ( CARDINAL inmates ) had CARDINAL cubicles . The shower facilities were also scarce , so that CARDINAL or CARDINAL inmates had to use CARDINAL shower - head at a time . Mr S. later repudiated these submissions ( see his statement of DATE among the documents submitted by the Government , subsection CARDINAL below ) .

The Government stated that on admittance to GPE on DATE the applicant had been placed in unit no . CARDINAL . The dormitory of the unit measured CARDINAL sq . m. It was intended for CARDINAL detainees but was used by CARDINAL inmates . According to the certificate issued by the prison governor in DATE , it was equipped with CARDINAL taps , and there were CARDINAL more taps in a heated washstand in the yard . Another certificate issued by the prison governor in DATE stated that the unit was equipped with CARDINAL taps .

DATE the applicant was placed in a highsecurity unit measuring QUANTITY m , intended for CARDINAL detainees . However , CARDINAL inmates were held there .

DATE the applicant was held in unit no . CARDINAL . The dormitory of the unit measured QUANTITY m. It was intended for CARDINAL detainees but was used by CARDINAL inmates ; each detainee was thus allowed QUANTITY . m. According to the certificate issued by the prison governor in DATE , it was equipped with CARDINAL taps , and there were CARDINAL more taps in a heated washstand in the yard . Another certificate issued by the prison governor in DATE stated that the unit was equipped with CARDINAL taps .

The water was supplied from CARDINAL artesian wells which produced QUANTITY of water per hour . The average consumption of ZhH-CARDINAL/CARDINAL was QUANTITY . Cold water was always available in the taps except on CARDINAL occasions , on DATE , DATE and DATE , when it was cut off for TIME for maintenance ; during these times drinking water was provided from other sources .

Every unit had facilities for boiling water . Inmates had free access to such facilities . Once a week they took hot showers . The units had toilets in outhouses with sumps . The inmates of units nos . CARDINAL , CARDINAL and CARDINAL shared access to CARDINAL toilet cubicles .

Every unit had a room for drying clothes and a dining room equipped with food storage facilities , tables and stools .

The applicant was at all times provided with an individual bed , bedding and clothes in accordance with prison regulations . According to the prison records , on DATE the applicant received CARDINAL sheets , CARDINAL pillow and CARDINAL pillowcase , and on DATE he received a mattress , a DATE coat and a set of clothes . He was also offered a pair of boots but he signed a form refusing them . The meals provided to the inmates included meat , fish , milk , cereals and vegetables . The nutritional value met the required standards . The prison authorities had received no complaints concerning the quality of the catering .

The applicant never shared accommodation with inmates infected with tuberculosis . Detainees who had undergone treatment for tuberculosis were placed separately , in unit no . CARDINAL , and they were always catered for separately .

Owing to numerous breaches of prison discipline the applicant was placed in a disciplinary cell a number of times . In particular , he was in the disciplinary cell in DATE , DATE and DATE . According to the prison regulations , when an official entered a disciplinary cell the detainee had to stand up holding his hands behind his back . Since the applicant had shown a tendency to self - harm he was also required to turn his palms upwards so that the inspector could see that he was not hiding any objects that could be used for causing injuries . All inmates were required to keep their hair cut short . Only those suffering from head lice were advised to shave their hair . However , this was not the applicant ’s case and he did not have to have his head shaved .

On DATE the Government questioned PERSON , who repudiated his DATE statement , saying that he had written it at the applicant ’s request and that any allegations he had made in it about unsatisfactory conditions of detention were untrue . On DATE they questioned PERSON . , who stated that he had not written the statement submitted by the applicant dated DATE , claiming that the handwriting and the signature on it were not his .

Following his release on DATE , the applicant sent a complaint to the Chief Penitentiary Directorate of ORG of GPE on DATE in which he set out , inter alia , the shortcomings in the conditions in GPE . He also addressed similar complaints to ORG and to the Speaker of ORG , both of which were forwarded to ORG .

On DATE and on CARDINAL DATE ORG sent replies to the applicant dismissing his complaints ; however , it acknowledged that there had been certain shortcomings with regard to the conditions in GPE . The latter reply stated , in particular , that “ the shortcomings in catering , the irregular water supply in the units and the breaches of sanitary regulations were due to [ external reasons ] related to the excessive number of inmates and have now been overcome ” .

On DATE the applicant brought proceedings for damages against the administration of ZhH-CARDINAL/CARDINAL , alleging poor conditions in the facility , unlawfully imposed disciplinary measures and degrading treatment in the disciplinary cell , including regular head shaving ; he also alleged that he had sustained damage to his health and complained about the refusal to deliver one of his parcels in DATE . The GPE - Polyanskiy ORG scheduled a hearing for DATE .

On DATE the applicant asked for the hearing to be postponed on account of a medical emergency . On DATE the GPE - Polyanskiy District Court stayed the proceedings pending the applicant ’s recovery .

On DATE the proceedings in the case were stayed again on account of the applicant ’s failure to pay the court fees or submit any documents justifying a fee waiver . The applicant was given until DATE to pay the fees or request a fee waiver and provide the supporting documents . The applicant did not pursue these proceedings .

The applicant submitted that during his detention in ZhH-CARDINAL/CARDINAL he had been examined several times by medical specialists who failed to diagnose his tuberculosis .

Immediately after his release , on DATE , the applicant underwent a medical examination at the local clinic . Among other ailments he was diagnosed with “ infiltrative pulmonary tuberculosis in the destructive phase ” .

The Government submitted that , on DATE , the applicant had undergone an x - ray of his heart and lungs which showed no anomalies .

NORP On arrival in ZhH-CARDINAL/CARDINAL the applicant underwent a medical examination . His state of health was found to be satisfactory , and the checks for tuberculosis , skin diseases , scabs and lice did not reveal any such conditions .

On DATE he underwent another x - ray of his heart and lungs which also showed them to be normal .

On DATE another x - ray was made , and the applicant was sent for a further medical examination because of suspected tuberculosis . Further x - rays on DATE and clinical tests on DATE revealed some pathology in the lungs , but the tuberculosis specialist found that there was no tuberculosis . He recommended monitoring the applicant ’s condition with an x - ray DATE .

From DATE to CARDINAL DATE the applicant was placed in a medical institution for prisoners in order to undergo examination for tuberculosis and other diseases .

On DATE a further CARDINAL - projection x - ray revealed changes in the pattern of the lungs and pleural thickening . However , the phlegm test did not confirm tuberculosis .

From DATE to DATE the applicant was in the medical ward of ZhH-CARDINAL/CARDINAL for treatment of a duodenal ulcer , hepatitis , gastritis and furunculosis .

On DATE the applicant was sent for a regular medical checkup which included an x - ray and gave results similar to those of DATE , showing no clear indications of tuberculosis . On DATE the tuberculosis specialist concluded that there was no evidence of tuberculosis .

On DATE the phlegm test for tuberculosis proved negative .

In DATE the applicant ’s next regular check - up was due , but he was released on parole before the scheduled date .

The applicant stated that on DATE he had been placed in a disciplinary cell . Handcuffs were put on his hands behind his back and locked to a water pipe QUANTITY above the floor . On DATE he was beaten up by the officers on duty . His request to have his injuries recorded by medical personnel was refused .

On DATE , when the applicant was detained in the disciplinary unit , a search was conducted in ZhH-CARDINAL/CARDINAL . The applicant claimed that a special forces’ squadron ( ORG ) had been brought in for this purpose . He was severely beaten during the search and allegedly received injuries including bruises and abrasions on his left side . However , immediately after the incident the applicant was refused permission to see a doctor .

The applicant also claims that a foreign body was found in his left side and was extracted later .

The applicant submitted that on DATE he had lodged a complaint with the prosecutor ’s office about having been beaten during the search of DATE . In DATE other inmates of GPE wrote statements to the prosecutor ’s office in support of the applicant ’s complaint ; these may be summarised as follows .

Mr L. wrote that on DATE he had seen in the shower that the applicant had bruises on his left side , loin and buttock . He also alleged that the applicant had repeatedly asked the prison authorities to have the traces of beating recorded .

Mr A. wrote that during the search of the disciplinary unit on DATE he had heard cries and sounds from which he concluded that the applicant was being beaten . He also stated that on DATE he had seen in the shower that the applicant had bruises on his left side , loin and buttock . PERSON repudiated these submissions ( see his statement of DATE among the documents submitted by the Government , subsection ( CARDINAL ) below ) .

Mr PERSON wrote that on DATE he had seen the applicant in the prison medical ward and noticed traces of beating on his left side and traces of handcuffs . He also alleged that the applicant had repeatedly requested the medical personnel to record the traces of beatings . PERSON repudiated these submissions ( see his statement of DATE among the documents submitted by the Government , subsection ( b ) below ) .

PERSON wrote that on DATE he had been in the disciplinary cell and had seen bruises on the applicant and traces of handcuffs .

The applicant submitted that on DATE , when he was again in the disciplinary cell , he had felt sick and demanded to be seen by a doctor . The warders ignored him at first , but then came into his cell and beat him up . His request for medical assistance for his injuries was refused and he was left in the cell , handcuffed .

On DATE , still in the disciplinary cell , the applicant refused to go to work because he had not been provided with DATE shoes . The warders threatened him and then beat him up while the head medical officer was present .

The Government contended that the applicant had not been beaten or otherwise ill - treated in ZhH-CARDINAL/CARDINAL . Although he was regularly examined and treated in hospital for various diseases , none of his ailments had been caused by any injuries other than self - inflicted ones .

Owing to numerous breaches of prison discipline the applicant was placed in a disciplinary cell a number of times .

The applicant was handcuffed on CARDINAL occasions , first on DATE and then on DATE , as described below .

On DATE when he was brought before a prison official for a breach of prison discipline , the applicant broke a window and with a splinter of glass made several scratches on his left forearm . He was therefore handcuffed for TIME from TIME After the handcuffs had been removed , he was placed in a disciplinary cell . The governor of ZhH-CARDINAL/CARDINAL investigated the incident and concluded that the injuries were self - inflicted and were not the result of any criminal act . On DATE the prosecutor ’s office endorsed the decision not to conduct a criminal investigation into the incident .

DATE and DATE the applicant was held in a medical institution for prisoners , and was then transferred , until DATE , to the medical ward of ZhH-CARDINAL/CARDINAL for further treatment of a duodenal ulcer , hepatitis , gastritis and furunculosis . There are no records of any injuries dating from this period .

On DATE the applicant inflicted a slash wound on his left forearm and was provided with medical aid .

On DATE the applicant underwent a medical examination in the medical institution for prisoners . He was diagnosed with a hernia and was admitted to hospital . On DATE the applicant underwent a surgical operation for the hernia . At the same time a foreign body was found in his left side and was removed .

On DATE , when the applicant was being held in a disciplinary cell , he made a written statement threatening to injure himself as a protest against the authorities’ refusal to place him in a medical institution for treatment of his “ worsening disorders ” . To restrain him , the prison warder handcuffed him TIME On DATE the governor of ZhH-CARDINAL/CARDINAL investigated the incident and concluded that the handcuffing had been lawful and justified in the circumstances .

On DATE the applicant was in the disciplinary cell . No force or special restraint measures were used against him on DATE .

DATE . On DATE the prison authorities questioned CARDINAL inmates of ZhH-CARDINAL/CARDINAL who had been serving their sentences at the same time as the applicant about the acts of ill - treatment alleged by the applicant . CARDINAL of the inmates questioned , PERSON , were those on whose earlier statements the applicant had relied . The statements submitted by the Government may be summarised as follows .

Mr S. wrote that he knew the applicant personally and that relations between them had been friendly . The applicant often revolted against the prison regulations and discipline . Mr S. had never heard that the applicant had been beaten in the facility , or that other inmates had been ill - treated in any way .

Mr PERSON stated that he had not written the statement of CARDINAL DATE , and that the handwriting and the signature on it were not his . He had never seen any injuries on the applicant , although he had met him in the medical ward when they were held in the same unit for DATE .

Mr Kh . stated that he had not written the statement dated DATE submitted by the applicant , claiming that the handwriting and the signature on it were not his . He had not seen any injuries on the applicant .

Mr A. wrote that he had had friendly relations with the applicant and that the latter had often disobeyed the lawful orders of the prison authorities and breached discipline . The applicant was placed in the disciplinary cell , but even then continued to disobey . In DATE PERSON was detained in a disciplinary cell next door to the applicant , but he had not heard evidence of any violent acts against him . In the shower , he had not seen any traces of beating on the applicant . He repudiated his DATE statement , pointing out that he had written it at the applicant ’s request because of their friendly relations .

Mr Shch . wrote that in DATE he had been placed in the disciplinary unit . During his detention there a search was conducted , but no force was applied . He did not hear any cries or other violent sounds during the search , although audibility in the unit was very high . He met other detainees from the disciplinary unit during walks , but nobody mentioned any beatings or other use of force against inmates . He did not know the applicant personally .

According to the ORG , similar submissions had been written by PERSON . ; however , they did not attach a copy of his statement .

Mr Sh . wrote that he knew the applicant but did not have a personal relationship with him . In DATE he was detained in a disciplinary cell next door to the applicant , but did not hear him being beaten , though audibility in the disciplinary unit was very high . In the shower , he had not seen any traces of beating on the applicant . He did not hear the applicant complaining about having been beaten .

DATE . According to the ORG , similar submissions were written by PERSON . and PERSON ; however , they did not attach a copy of their statements .

The Government also referred to statements made by PERSON NORP , who submitted that they did not know the applicant and could not provide any relevant information , and by PERSON . , who submitted that he knew the applicant but had had no contact with him . No copies of these statements were made available to the ORG .

On an unspecified date the applicant complained to the NORP district prosecutor ’s office , alleging that on DATE he had been ill - treated . On DATE he also lodged a complaint alleging that he had been beaten during the search on DATE . The latter complaint was accompanied by CARDINAL statements from his fellow inmates , summarised above ( see paragraphs CARDINAL above ) .

On DATE the applicant complained to the ORG concerning his alleged ill - treatment and the disciplinary sanctions imposed on him by the authorities of ZhH-CARDINAL/CARDINAL . He claimed damages in the amount of MONEY . He sent an additional complaint to the court on DATE . The complaints were received by the court on DATE .

On DATE the GPE - Polyanskiy District Court declined to accept the applicant ’s complaints for consideration , having found that they had been submitted neither through the prison postal service nor through an authorised representative outside the prison , and were therefore in breach of LAW . Its decision was based on LAW . The applicant received this decision on DATE , but did not lodge an appeal against it . Instead he filed numerous petitions with various judicial bodies requesting the quashing of the decision of DATE in supervisory review proceedings . None of the petitions was successful .

On DATE the prosecutor ’s office decided not to conduct a criminal investigation into the alleged ill - treatment of DATE and DATE , having found the complaints unsubstantiated . It was noted , in particular , that during his detention in the disciplinary cell DATE and DATE the applicant had not applied to the medical unit in order to have any injuries recorded . As regards the alleged ill - treatment of DATE , the prosecutor ’s office questioned CARDINAL other inmates ( A. , L. and PERSON ) who had been detained in the same disciplinary unit as the applicant , and CARDINAL prison officers . They all stated that “ nobody from ORG [ had ] threatened to murder [ the applicant ] ” during the search . The prosecutor ’s office therefore concluded that the applicant ’s allegations of ill - treatment were not supported by any evidence and that no further investigation was necessary .

On an unspecified date the applicant challenged the decision of the prosecutor ’s office of DATE , claiming that the failure to investigate the events of DATE had been unlawful . He supported his complaint by written statements from inmates PERSON , PERSON , PERSON and A. confirming that DATE after the search of DATE they had seen bruises on his body and abrasions left by handcuffs on his wrists and that inmate PERSON had heard the applicant being beaten and crying for help .

On an unspecified date the applicant complained to the prosecutor ’s office about the alleged ill - treatment of DATE . On CARDINAL DATE the prosecutor ’s office declined to institute criminal proceedings , having found the allegations of ill - treatment unsubstantiated .

On DATE the GPE - Polyanskiy District Court examined a complaint by the applicant concerning the decision of the prosecutor ’s office of DATE . At the hearing the public prosecutor referred to the investigation conducted into the allegations of ill - treatment which had turned out to be unsubstantiated as there were no witnesses and no record of the applicant ’s supposed requests for medical aid or his complaints in this respect . CARDINAL officials who had been implicated were questioned in court and denied the allegations . Statements by inmates PERSON were produced , asserting that they had never written any statements concerning the alleged beating of the applicant and that they had neither seen any bruises on him nor heard any cries from his cell on the relevant date . Neither the applicant nor any other inmates were present in the courtroom . The court dismissed the complaint and found the decision by the prosecutor ’s office not to conduct a criminal investigation to be lawful and reasonable . The applicant did not appeal against this judgment .

On an unspecified date the applicant challenged before the court the alleged failure of the prosecutor ’s office to register his complaint of illtreatment on DATE . On DATE ORG examined the claim and found that not only had the complaint been registered with the prosecutor ’s office , but an official decision had been taken on DATE not to conduct a criminal investigation into the allegations . The applicant had been informed of it . Having noted that the applicant had not challenged the merits of the latter decision , the court rejected the claim . No appeal was lodged against this decision .

On DATE the applicant brought new proceedings for damages against the authorities of ZhH-CARDINAL/CARDINAL . He alleged ill - treatment in the prison and in the disciplinary cell and complained of unlawfully imposed disciplinary measures and damage to his health .

On DATE the GPE - Polyanskiy District Court stayed the proceedings until DATE and ordered that the applicant comply with the formal requirements for lodging a claim by attaching the originals or copies of the documents he referred to in his complaints and paying the full amount of the court fee , or providing reasons justifying a fee waiver . The applicant did not pursue these proceedings .

On DATE the applicant lodged a new claim with the GPE - Polyanskiy District Court , similar to that of DATE . On DATE the court stayed the proceedings because the applicant had again failed to pay the court fee or file a waiver application , and to attach copies of the relevant documents and the required number of copies of his writ . The applicant was given until DATE to rectify the shortcomings . The applicant did not pursue these proceedings . Apparently he lodged a new claim of similar content , failing once again to pay the court fee or request a waiver and to provide the required copies . On DATE the GPE - Polyanskiy District Court stayed the proceedings and gave the applicant until DATE to comply with these requirements . The applicant did not pursue these proceedings either . Likewise , he did not appeal against the stay of any of the above - mentioned proceedings .

Article CARDINAL § CARDINAL of the Penitentiary Code of DATE provides for a minimum standard of QUANTITY of personal space for male prisoners in correctional colonies .

Abuse of office associated with the use of violence or entailing serious consequences carries a punishment of up to CARDINAL years’ imprisonment ( Article QUANTITY of LAW ) .

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

On DATE ORG of GPE held that anyone whose legitimate rights and interests had been affected by a decision not to institute criminal proceedings should have the right to appeal against that decision to a court .

The Code of Criminal Procedure of GPE ( Law no . CARDINAL of DATE , in force from DATE ) , states that a criminal investigation may be initiated by an investigator or prosecutor on a complaint by an individual ( Articles CARDINAL and CARDINAL ) . Within DATE of receipt of such a complaint , the investigator or prosecutor must carry out a preliminary inquiry and make one of the following decisions : ( CARDINAL ) to open criminal proceedings if there are reasons to believe that a crime has been committed ; ( CARDINAL ) to decline to open criminal proceedings if the inquiry reveals that there are no grounds to initiate a criminal investigation ; or ( CARDINAL ) to refer the complaint to the competent investigative authority . The complainant must be notified of any decision taken . The decision not to open criminal proceedings is amenable to appeal to a higher prosecutor or a court of general jurisdiction ( Articles CARDINAL , CARDINAL and CARDINAL ) .

“ A single judge shall decide whether to accept a civil claim .

The judge shall reject the claim :

( CARDINAL ) if the claim is not eligible for examination by a court ;

( CARDINAL ) if the plaintiff has not pursued the out - of - court settlement established by law for this category of cases ;

( CARDINAL ) if there exists a final judgment resolving a dispute between the same parties on the same subject matter and on the same grounds , or a judicial decision accepting the plaintiff ’s repudiation of the claim or a friendly settlement ;

( CARDINAL ) if another case between the same parties on the same subject matter and on the same grounds is pending before a court ;

( CARDINAL ) if there has been a decision taken by a [ lay arbitration body ] within its competence resolving a dispute between the same parties on the same subject matter and on the same grounds ;

( CARDINAL ) if the parties have agreed to submit the case to arbitration ;

( CARDINAL ) if the court has no jurisdiction over this claim ;

( CARDINAL) if the claim was submitted by a person whose legal capacity has been limited [ owing to disability ] ;

( CARDINAL ) if the claim was submitted on behalf of the interested person by a person without due authority to conduct the case .

Article CARDINAL of the Penitentiary Code and paragraph CARDINAL of LAW ( Order no . CARDINAL of ORG of DATE ) provide that all incoming and outgoing correspondence of detainees , other than correspondence with courts , prosecutors , penitentiary officials , the ORG and counsel , is subject to censorship by the colony officials . Letters are to be put in mailboxes or given to officials in an unsealed envelope . LAW requires detainees to submit all complaints through the colony officials .

ORG for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment ( ORG ) visited GPE from DATE . The section of its ORG to ORG ( ORG ( DATE ) CARDINAL ) dealing with the conditions of detention in remand establishments and the complaints procedure read as follows :

It should be stressed at the outset that the ORG was pleased to note the progress being made on an issue of great concern for the NORP penitentiary system : overcrowding .

When the ORG first visited GPE in DATE , overcrowding was identified as the most important and urgent challenge facing the prison system . At DATE visit , the delegation was informed that the remand prison population had decreased by CARDINAL since DATE . An example of that trend was GPE No CARDINAL in GPE , which had registered a PERCENT decrease in the remand prison population over DATE .

The ORG welcomes the measures taken in DATE by the NORP authorities to address the problem of overcrowding , including instructions issued by ORG , aimed at a more selective use of the preventive measure of remand in custody . Nevertheless , the information gathered by the ORG ’s delegation shows that much remains to be done . In particular , overcrowding is still rampant and regime activities are underdeveloped . In this respect , the ORG reiterates the recommendations made in its previous reports ( cf . paragraphs CARDINAL and CARDINAL of the report on the DATE visit , ORG ( CARDINAL ) CARDINAL ; paragraphs CARDINAL of the report on the DATE visit , ORG ( DATE ) CARDINAL ; paragraph CARDINAL of the report on the DATE visit , ORG ( DATE ) CARDINAL ) .

As during previous visits , many prisoners expressed scepticism about the operation of the complaints procedure . In particular , the view was expressed that it was not possible to complain in a confidential manner to an outside authority . In fact , all complaints , regardless of the addressee , were registered by staff in a special book which also contained references to the nature of the complaint . At Colony No CARDINAL , the supervising prosecutor indicated that , during his inspections , he was usually accompanied by senior staff members and prisoners would normally not request to meet him in private ‘ because they know that all complaints usually pass through the colony ’s GPE .

In the light of the above , the ORG reiterates its recommendation that the NORP authorities review the application of complaints procedures , with a view to ensuring that they are operating effectively . If necessary , the existing arrangements should be modified in order to guarantee that prisoners can make complaints to outside bodies on a truly confidential basis . ”

The Standard Minimum Rules for the Treatment of Prisoners , adopted by ORG on ORG and the Treatment of Offenders , held at 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 .

( CARDINAL ) The transport of prisoners in conveyances with inadequate ventilation or light , or in any way which would subject them to unnecessary physical hardship , shall be prohibited ... ”


András Sajó;Françoise Tulkens;Guido Raimondi;Kristina Pardalos;Nona Tsotsoria

The applicant , Ms Krisztina Felcser , is a NORP national who was born in DATE and lives in GPE . She was represented before the ORG by Mr ORG , a lawyer practising in GPE . ORG ( “ the Government ” ) were represented by PERSON , Agent , ORG and Law Enforcement .

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

On DATE an action was brought with a view to evicting the applicant from her service flat . A first - instance decision , requiring the applicant to vacate the flat and the plaintiff to arrange for alternative accommodation , was adopted on DATE . Part of this judgment was quashed and remitted on DATE . ORG gave judgment on DATE . On DATE ORG reversed this decision and established the fee payable by the applicant for the past use of the flat . On DATE ORG rejected the applicant 's petition for review .

In the meantime , the applicant filed a motion for execution against the plaintiff in respect of her claim for alternative accommodation . On DATE and CARDINAL DATE the LOC and ORG respectively rejected this motion , observing that this claim was not enforceable until the applicant vacated the flat .


The applicant is a national of GPE , born in DATE . Before the ORG he is represented by ORG , a lawyer practising in GPE , GPE .

On DATE the applicant and his wife , PERSON , arrived in GPE with their son , born in DATE . They applied for asylum . In DATE their daughter was born . On DATE ORG ( ORG invandrarverk ) rejected the application . The decision was upheld by ORG ( Utlänningsnämnden ) on DATE . However , due to difficulties in expelling people to GPE , the family remained in GPE .

By a judgment of DATE ORG ( tingsrätten ) of GPE sentenced the applicant to DATE in prison for , inter alia , threatening behaviour ( olaga hot ) and violation of a visiting ban ( överträdelse av besöksförbud ) . The court ordered his expulsion from GPE and prohibited him from returning before DATE . The court noted that , following several reports by GPE that she had been threatened by the applicant , the public prosecutor , by a decision of DATE , had banned the applicant from visiting GPE for a period of DATE . She had also been given a security alarm by the police . The court found that the applicant , on CARDINAL and DATE , had violated the visiting ban and had threatened to “ cut [ ORG ’s ] throat ” .

ORG took into account that , on CARDINAL occasions DATE , the applicant had been fined for various crimes , including threatening behaviour in DATE and drunken driving ( rattfylleri ) and shoplifting ( snatteri ) in DATE . In fixing his sentence at CARDINAL months’ imprisonment , the court also had regard to the detriment suffered by the applicant as a result of his expulsion .

The applicant and PERSON were divorced on DATE . By an interim decision , PERSON was awarded custody of the children .

On DATE ORG ( hovrätten ) for Southern Norrland upheld ORG judgment of DATE .

On DATE ORG convicted the applicant of theft ( stöld ) and ordered that the previously imposed sanction should also comprise this crime .

On DATE ORG ( Högsta domstolen ) refused the applicant leave to appeal against ORG judgment of DATE .

On DATE the applicant was sentenced by ORG to DATE imprisonment for driving without a driver ’s licence ( olovlig körning ) and for a new violation of the visiting ban . Finally , on CARDINAL DATE , ORG convicted the applicant of gross drunken driving ( grovt rattfylleri ) and for driving without a driver ’s licence , and sentenced him once again to DATE imprisonment .

On DATE ORG granted GPE and the children residence permits in GPE . ORG took into account that they had remained in GPE due to the ban on expelling people to GPE . As a result , they had lived in GPE for DATE and the children had developed connections to GPE . Thus , there were humanitarian reasons not to expel them from GPE .

On DATE ORG , referring to the expulsion order against the applicant , rejected his application for a residence permit .

Later the applicant requested the Government to annul the expulsion order . By decision of CARDINAL DATE the ORG rejected the request .

On DATE ORG of GPE awarded GPE permanent custody of the children and granted the applicant a right of access to them .

On DATE ORG rejected a request from the applicant for a reopening of the criminal proceedings against him .

On DATE the ORG rejected a new request from the applicant for annulment of the expulsion order .


Corneliu Bîrsan;David Thór Björgvinsson;Egbert Myjer;Elisabet Fura;Isabelle Berro-Lefèvre;Jean-Paul Costa

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

The applicant is a civil servant and the father of CARDINAL children . His pension was calculated on DATE by an order of DATE . However , the calculation did not take account of the service credits for children established in LAW then in force , which provided :

“ Under conditions determined by a regulation of the Prime Minister , the following service credits shall be added to the periods of service actually completed : ... ( b ) A service credit granted to female civil servants for each legitimate child , each natural child of established paternity and each adopted child , and , subject to the condition that they have been brought up for DATE before reaching their CARDINAL birthday , for each of the other children listed in paragraph II of Article L.CARDINAL . ”

By a judgment of DATE ORG of ORG held that LAW was contrary to the principle of equal pay as laid down in LAW establishing ORG . Following that judgment , the PERSON d’Etat held , in a judgment of DATE concerning PERSON , a litigant other than the applicant , that PERSON was entitled to the service credit provided for in LAW .

On DATE the applicant requested a review of his pension with a view to obtaining the service credits to which he considered he was entitled in respect of his CARDINAL children . He submitted that he should be awarded DATE of service credits in respect of his CARDINAL children , by strict reference to the PERSON d’Etat ’s analysis in its judgment in favour of PERSON on DATE , and also the principle of equal pay for men and women , which precluded civil servants being refused entitlement to the benefit of the provisions on the ground of their sex .

On DATE a new Act amended the provisions of Article L.CARDINAL of the Pensions Code . Section CARDINAL I stated :

“ Under the conditions determined by a decree of the PERSON d’Etat , the following service credits shall be added to the periods of service actually completed : ... ( b ) For each legitimate child and each natural child born before DATE ... civil servants and military personnel shall receive a service credit fixed at DATE , in addition to the periods of service actually completed , provided that they have interrupted their employment in the conditions determined by the decree of the ORG d’Etat .... ”

Section PERSON was worded as follows :

“ The provisions of Article L. CARDINAL(b ) of ORG resulting from the wording of [ sub - subsection ] CARDINAL of [ Part ] I shall apply to pensions calculated from CARDINAL DATE . ”

The above - mentioned decree of the PERSON d’Etat was adopted on DATE .

On DATE the Minister for ORG rejected the applicant ’s request in the following terms :

Given the date of calculation of your pension , a service credit is payable only if you can provide evidence of having interrupted your employment on the birth of your children .

If that condition is satisfied , it will then be necessary to consider whether the duration of that interruption does in fact correspond to the duration due to be fixed by the forthcoming decree . ”

On DATE the applicant lodged an application with ORG , seeking judicial review of the order of DATE awarding the pension and of the decision of the Minister for ORG refusing to review the applicant ’s pension entitlement . He alleged that since the order of DATE containing the calculation of his pension had failed to take account of his situation as a father of CARDINAL children , it had disregarded his rights under Article L.CARDINALb of the Pensions Code , which was intended to apply to both female and male civil servants , and was thus discriminatory . He also maintained that , given the refusal to review his pension , the new Act had been applied retrospectively . When ORG had decided that there could be no retrospective effect for female civil servants , the resulting situation had established discrimination , since , for the same retirement date , women continued to be covered by the old provisions whereas men were subject to the new , retrospective provisions . The applicant concluded that there had been a violation of LAW No . CARDINAL and of the principle of non - discrimination .

In a number of judgments , in particular that of DATE , the ORG d’Etat adjudicated in cases identical , both in law and in fact , to the applicant ’s case . On the complaint based on LAW No . CARDINAL , the PERSON d’Etat held that , while section QUANTITY of the Act of CARDINAL DATE “ retrospectively [ deprived ] civil servants whose pension [ had been ] calculated after CARDINAL DATE of entitlement to the credit , the principle and the amount of which were certain ... , that retrospective effect , applicable to a period of DATE , PERSON ] an interference with the asset in question which was justified , in line with the legislature ’s intention , by public - interest considerations related to the desire to ensure that the announcement of the tabling of the PERSON did not lead to an increase in litigation . ” It concluded that “ this interference , which [ did ] not affect the substance of the right to a pension but only one of the elements of its calculation , [ was proportionate ] to the aim thus pursued . ”

As for the complaint based on LAW , the ORG d’Etat considered that the enactment of LAW , on DATE the application submitted by the litigants , at a time when no dispute existed between them and the ORG concerning the calculation of their pensions , had had neither the aim nor effect of influencing the outcome of pending judicial proceedings and that it had thus not deprived those concerned of their right of access to a court in order to assert their rights .

On the basis of those considerations , ORG dismissed the applicant ’s application on DATE .

In view of the aforementioned judgments of the PERSON d’Etat , the applicant did not lodge an appeal on points of law .

By a judgment of DATE , ORG of ORG held that the principle of equal pay precluded limiting to women credits granted for the purpose of calculating a retirement pension to persons who had raised their children , whilst men who had raised their children were excluded from entitlement to the credit . It held that Article L. CARDINAL(b ) of ORG , which introduced , for the calculation of pensions , a service credit of DATE for each child , limited to female civil servants , was incompatible with the principle of equal pay as laid down in the LAW establishing ORG and the LAW annexed to LAW No . CARDINAL on ORG annexed to LAW .

On DATE the ORG d’Etat , which had stayed proceedings pending the ruling of ORG , held that in so far as provisions were maintained which were more favourable to female civil servants who had raised their children , PERSON , who had raised [ his ] children himself , was entitled to the credit provided for in LAW .