Violation of Art. 3;Violation of Art. 8;Violation of Art. 13

Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Michael Fotiou;Sverre Erik Jebens

The applicant was born in DATE and is currently detained in FAC . He is serving concurrent DATE sentences pursuant to his conviction for CARDINAL counts of attempted murder .

On DATE the applicant was permitted to leave detention on TIME leave granted by the prison director . He did not return to the prison when his leave expired . Following a search to trace his whereabouts , he was arrested on CARDINAL DATE . At the time of his arrest he was in possession of a gun and cartridges and was wearing a bullet - proof vest and a woman ’s wig . He was transferred to the maximum security wing of the prison and placed in solitary confinement . He was thus confined until DATE , that is , for a total of DATE .

NORP The parties’ submissions concerning the conditions of the applicant ’s detention during the period of his solitary confinement differed .

The Government agreed that the applicant had been detained in the prison ’s maximum security wing but maintained that he was detained in a normal cell . The dimensions of the cell were QUANTITY by QUANTITY , that is , QUANTITY . It was furnished with a bed , a cupboard and a table . The cell had CARDINAL windows : an exterior one ( QUANTITY ) and a smaller one above the cell door ( QUANTITY by QUANTITY ) . The cell was opened CARDINAL times a day for a total of TIME . This time was used for personal hygiene purposes and taking meals . It was the applicant ’s responsibility to clean his cell and he was provided with all the necessary equipment . He had regular direct contact with prison personnel . Moreover , newspapers had been provided in the wing and he had access to books from the prison library . There was a television set in the wing corridor to which the applicant could listen and he would have been provided with a radio if he had requested CARDINAL .

During the applicant ’s confinement he had spent considerable time outside prison when attending court hearings on CARDINAL , DATE , DATE , DATE , DATE and CARDINAL DATE and DATE and DATE . He was seen on CARDINAL occasions by the prison doctor ( CARDINAL , DATE , DATE and DATE ) . He was also visited by a welfare officer on DATE and was seen by the prison psychologist on CARDINAL and DATE .

Although the applicant was allowed to send letters to his family and friends DATE , he did not attempt to send any such letters . He did not ask to make or receive telephone calls . Visits from family members while the applicant was in solitary confinement were not permitted but during the applicant ’s visits to the court , he could meet with his family and friends , and was in fact supplied with food , soft drinks and clothes by his family which he was allowed to take back to prison . On CARDINAL occasion , a mobile telephone given to the applicant by a family member was confiscated upon his return to prison after a hearing .

NORP The applicant disputed the ORG ’s description of the conditions of his confinement . He alleged that following his return to prison on DATE he was confined in a cold , damp cell of a maximum of QUANTITY without food , water or suitable clothing . The cell had no external window and the window of the cell door was considerably smaller than the Government had indicated . The applicant was excessively restricted in his ability to use the toilet or have a shower : for DATE of his solitary confinement he was forced to use an empty water bottle to urinate and nylon bags for other needs . These were provided to him by a prison officer through the small window in the cell door . Due to the cold , his arm and shoulder had frozen and he suffered from pain but the doctor was not allowed by the prison authorities to provide him with painkillers . He was nevertheless given an anti - inflammatory gel by the doctor using her own funds . Relying on the prison logbook submitted to ORG , the applicant stated that he had not been allowed to go to the toilet prior to DATE or to have food or the opportunity to shower before DATE , although he was given bottled water and an apple from time to time through his small cell window by a prison officer . He had no access to newspapers , books or television . Further , he was not regularly seen by a doctor and he was not allowed regularly to exit his cell for TIME in TIME in the afternoon , as required by the relevant regulations .

While in solitary confinement , the applicant was not permitted to have visits from his family or to make telephone calls . As for the ORG ’s allegations that he had not asked to make telephone calls , the applicant replied it was not the practice of the prison authorities to give formal decisions refusing requests to make telephone calls in writing , there were no telephone booths in the maximum security block and , in general , prisoners were not allowed to receive calls from outside the prison . He had no contact with his family in the prison during the period of his solitary confinement and no contact was possible during his court visits . In particular , when he attended hearings at the district court in GPE , he was kept at the GPE central police station ’s cells . It was only after the period of his solitary confinement that he could see his family and friends at the court ’s hearings .

The applicant also alleged that the maximum security wing was used to threaten or punish prisoners given the conditions of detention there and , in particular , the fact that another prisoner would beat up prisoners without any attempt by the authorities to protect them . The applicant alleged that he had been ill - treated in this manner on CARDINAL occasions but did not provide further details .

According to the entries in the prison logbook which was submitted to ORG , the applicant was returned to prison on DATE . On DATE , the logbook records that the applicant left his cell to use the toilet after special notification had been given to the security direction ( “ φρουραρχείο ” ) . The following day , the entry in the logbook records that he met with the prison director and was given food .

Although the logbook records that on DATE the applicant used the toilet on several occasions , on others it indicates that he only used the toilet once . On DATE , there is no record of the applicant leaving his cell to use the toilet . Access to shower facilities appears to have been sporadic : at times he showered DATE but on other occasions , according to the logbook , he did not leave his cell to shower for DATE . Similarly , the prison logbook records that on DATE the applicant was given CARDINAL or CARDINAL meals whereas on others , it would appear that he received only one . On DATE , there is no entry recording any meal given to the applicant .

The logbook indicates that the applicant saw a prison psychologist CARDINAL times : on CARDINAL and DATE and on CARDINAL and DATE . He saw the prison doctor on DATE and DATE . He met with the welfare officer on DATE . On DATE , he refused to attend a scheduled visit to see a surgeon at ORG

The logbook records that the applicant attended court on CARDINAL occasions : on DATE for TIME ; on DATE for TIME ; On DATE for TIME ; on DATE for TIME ; on DATE , for CARDINAL ; on DATE for CARDINAL ; and on DATE , for TIME .

According to the logbook , on DATE , the applicant met a member of ORG . On DATE , he was taken to meet with ORG and was away from his cell for TIME .

There are CARDINAL entries in the logbook recording other relevant events . On DATE , he was taken to a conference room , where he remained for TIME and TIME . On DATE , he was accompanied by a prison officer to visit a Mr A.T. and was away for TIME .

Although the applicant was in solitary confinement until DATE , only entries from the logbook up to CARDINAL DATE have been submitted by the Government .

On DATE applicant ’s arrest following his failure to return to prison , a police investigation began into alleged offences committed while the applicant was at liberty . According to the Government , this was concluded on DATE with the filing of charges against the applicant for the commission of various offences . The applicant maintained that he was charged on DATE .

In parallel , on DATE , the applicant was charged with several disciplinary offences concerning the breach of the terms of his leave . However , the disciplinary proceedings were not pursued .

On DATE ORG convicted the applicant of escaping from custody and of other offences associated with his escape . The prison director stated in his evidence before the court that the applicant was placed in solitary confinement in order to protect him from other prisoners who were hostile towards him because of restrictions imposed in the prison affecting everyone as a result of the applicant ’s escape . The court noted in its judgment that the applicant had entered a plea of not guilty in respect of the disciplinary offences but that the proceedings were not pursued , no witnesses were heard and no sentence was imposed . Given that there had been no trial , no verdict and no imposition of a sentence in the disciplinary proceedings , the court concluded that the applicant ’s confinement could not be treated as a disciplinary sentence .

The applicant lodged an appeal against his conviction before ORG .

On DATE ORG allowed the applicant ’s appeal against his conviction of the offence of escaping from custody given that , at the relevant time , he had been on temporary release and had merely failed to return to prison at the expiry of his release period .

The applicant , in a letter to the office of ORG ( “ the Ombudsman ” ) dated DATE , complained about his detention for an excessive period of time in the maximum security wing , alleging in particular that during this period he was not able to have visits or contact with his family by telephone or correspondence and that he was only allowed to leave his cell in order to go to the toilet , have a bath or pick up his food tray . He subsequently complained that his letter addressed to the ORG dated DATE was delivered late , after having been sent by the prison director to ORG .

According to the ORG ’s report of CARDINAL DATE the applicant had been confined to a cell in the security wing for DATE . Having been contacted by the ORG , the prison authorities stated that the applicant had been put in solitary confinement for his own protection given the possibility of retaliation by other prisoners due to the restrictive measures imposed on them as a result of the applicant ’s failure to return from home leave . The prison authorities confirmed that the applicant was not permitted any visits , telephone conversations or letters and that moreover , he was not allowed to exit his cell except in order to wash himself , to go to the toilet and to get his food . It was further noted that although ORG had given instructions on DATE that the applicant be returned to normal detention , the applicant was kept confined to his cell until DATE as the instructions had not been registered in the records of the wing but had merely been noted on a piece of paper which had been misplaced .

As regards the applicant ’s letter to the ORG dated DATE , the report noted that a copy of that letter , as well as copies of CARDINAL other letters addressed to recipients other than the prison authorities , had been sent by the prison director to ORG in order to seek instructions as to whether the particular letters should be sent to the intended recipients . The ORG received the letter addressed to her on DATE .

The ORG in her report observed that it did not appear from the file that the confinement of the applicant had been of a disciplinary nature . She also noted that had the applicant ’s confinement been a preventive measure or a measure for the protection of the applicant , as claimed by the prison authorities , then under regulation CARDINAL ) of the Prison ( General ) Regulations DATE ( “ Prison Regulations ” – see further “ Relevant domestic law and practice ” , below ) the written approval of the prison director would have been required . No such approval had been given . The ORG therefore considered that the applicant ’s confinement was a punitive measure .

Moreover , the ORG was not convinced that the denial of the applicant ’s right to receive visits , correspondence and telephone contact , for example with his DATE son , had aimed to protect the applicant from his fellow inmates . She further observed the following :

“ It is noted that although in theory the total seclusion of a person in combination with his total social isolation is not acceptable , in practice ORG and ORG have tolerated this type of total confinement in exceptional circumstances . However , this was done in cases concerning particularly dangerous terrorists who had been detained pending their trial and who had been allowed to go into the prison yard at some specific time in DATE . ”

The ORG concluded that the applicant ’s confinement for a total period of DATE with no right to exit his cell for TIME a day as provided for in FAC , in combination with the denial of the applicant ’s right to have contact with family and friends , was in breach of FAC and constituted a violation of the applicant ’s rights under LAW and CARDINAL of the Convention .

As regards the applicant ’s complaint concerning the monitoring of the letter he sent to her , the ORG emphasised the importance of allowing prisoners direct and uninhibited access to her office . In this connection she referred , inter alia , to ORG and a report by ORG Committee for the prevention of torture ( see further “ International materials ” , below ) , as well as the case of Silver and others v. GPE , ( no . CARDINAL/CARDINAL ; CARDINAL/CARDINAL ; DATE ; ORG ; CARDINAL ; DATE ; DATE , ORG ’s report of CARDINAL DATE , ORG and Reports ( DATE , p. CARDINAL ) .

On DATE the applicant submitted an additional complaint to the ORG against the prison authorities . He complained that the prison authorities had , on DATE , refused to allow him to give his father , who had visited him in prison , a letter addressed to the ORG requesting her to send him copies of past correspondence between them . The applicant claimed that he did not want the contents of his letters to the ORG to be monitored by the prison personnel and that for this reason he had decided to send the letter through his father . He had complained on DATE to the prison director .

The ORG , in a report dated DATE , repeated that prisoners should be allowed unrestricted access to her office . She found that there had been unjustified difficulties and unnecessary obstacles in the direct and unhampered communication of the applicant with her office that had negatively affected the exercise of his rights . She noted that on DATE , at a meeting held in ORG , it was decided that a designated letter box would be placed in the central prisons to allow prisoners , freely and without procedural or substantive restrictions , to submit complaints to the ORG concerning their conditions of detention .

By letter of CARDINAL DATE the applicant informed the ORG that in DATE , on the basis of a recommendation by the Attorney - General of GPE , CARDINAL prisoners were granted an official pardon by the President and were consequently released . The applicant was not among the CARDINAL .

LAW provides , in so far as relevant , as follows :

“ No person shall be subjected to torture or to inhuman or degrading punishment or treatment . ”

“ CARDINAL . Every person has the right to respect for his private and family life .

There shall be no interference with the exercise of this right except such as is in accordance with the law and is necessary only in the interests of the security of the LOC or the constitutional order or the public safety or the public order or the public health or the public morals or for the protection of the rights and liberties guaranteed by LAW to any person . ”

“ CARDINAL . Every person has the right to respect for , and to the secrecy of , his correspondence and other communication if such other communication is made through means not prohibited by law .

There shall be no interference with the exercise of this right except in accordance with the law and only in cases of convicted and unconvicted prisoners and business correspondence and communication of bankrupts during the bankruptcy administration . ”

Article CARDINAL

“ CARDINAL . ORG shall have exclusive jurisdiction to adjudicate finally on a recourse made to it on a complaint that a decision , an act or omission of any organ , authority or person , exercising any executive or administrative authority is contrary to any of the provisions of this LAW or of any law or is made in excess or in abuse of powers vested in such organ or authority or person .

Such a recourse may be made by a person whose any existing legitimate interest , which he has either as a person or by virtue of being a member of a ORG , is adversely and directly affected by such decision or act or omission .

Such a recourse shall be made within DATE of the date when the decision or act was published or , if not published and in the case of an omission , when it came to the knowledge of the person making the recourse .

Upon such a recourse the ORG may , by its decision-

( a ) confirm , either in whole or in part , such decision or act or omission ; or

( b ) declare , either in whole or in part , such decision or act to be null and void and of no effect whatsoever , or

( c ) declare that such omission , either in whole or in part , ought not to have been made and that whatever has been omitted should have been performed .

Any person aggrieved by any decision or act declared to be void under paragraph CARDINAL of this LAW or by any omission declared there under that it ought not to have been made shall be entitled , if his claim is not met to his satisfaction by the organ , authority or person concerned , to institute legal proceedings in a court for the recovery of damages or for being granted other remedy and to recover just and equitable damages to be assessed by the court or to be granted such other just and equitable remedy as such court is empowered to grant . ”

Regulations CARDINAL and CARDINAL of the Prison Regulations deal with the contact rights of prisoners ( correspondence , telephone calls and visits ) . In so far as relevant , they provide as follows :

“ CARDINAL . A prisoner who has been sentenced to imprisonment can send letters to his family members , associates and friends twice a week , provided he submits these letters beforehand for examination by the competent officer in accordance with the provisions of the present regulations .

It is provided that the director can allow a prisoner to send more letters , if in his judgment this will help him to maintain beneficial contacts with the outside world .

There is no restriction on the number of letters a prisoner can receive in prison .

The prisoner can , if a direct need is shown , request permission from the director to contact by telephone , or to ask the competent prison officer to contact on his behalf , his lawyer or members of his family as well as professional or other associates for the settlement of personal , family and other matters in abeyance or differences ... ”

“ CARDINAL . Every prisoner is allowed to have visits by members of his family , relatives or friends CARDINAL times a month ... ”

Regulation CARDINAL of FAC deals with the monitoring of the correspondence of prisoners . The relevant provisions provide as follows :

“ The content of telephone calls or letters is monitored in cases where in the director ’s view such control is necessary for security reasons or for preventing the commission of a new offence or for any other justifiable reason . ”

“ The privilege of correspondence or telephone contact can be suspended following an order by the director in the case of a disciplinary offence by the prisoner . ”

“ Letters addressed by prisoners to any official authority of the Republic or to politicians or to the mass media are always sent through the director . ”

“ In the event that the director ascertains that their content does not come within the competence of the authority or person it is addressed to , or that in the letters improper or abusive language is used , or malicious allegations or unsubstantiated accusations are included against anyone or an attempt is made to distort facts or information concerning the security and in general the functioning of the prisons is revealed , the director can , in the interests of public security or public order or public morals or the protection of the reputation or rights of others or to prevent the revelation of confidential information or to preserve the authority and impartiality of the judiciary , prohibit the sending of these letters . The director informs the prisoner of his decision .

It is provided that prisoners can contact ORG by means of letters without any monitoring of their content by the prison authorities . ”

The Prison Regulations concerning solitary confinement provide , in so far as relevant , as follows :

“ The prison director can , when he deems it appropriate , order the confinement or isolation of a prisoner for such period as he considers necessary for the purposes of

( a ) preservation of discipline and order ;

( b ) protection of the interests of the prisoner himself or of other prisoners ;

( c ) confinement or isolation of violent prisoners , who by their behaviour cause problems and intimidate other prisoners ;

( d ) discipline ... ” .

“ The extension of the confinement of the prisoner in a special cell or isolated space ( apart from the wing in which he resides for preventive and not disciplinary reasons ) for TIME requires the written approval of the director ... Prisoners under confinement or isolation have a right to exit the place of confinement or isolation for TIME in TIME in the afternoon . ”

“ A prisoner who is to be accused of a disciplinary offence may be confined to his individual cell or a special cell , according to the situation and the seriousness of the offence , until the examination of the facts of the case is completed . The period of confinement of the prisoner must not exceed DATE , unless the director approves the extension of the period of confinement of the prisoner for DATE . ”

“ In the event that a prisoner is to be accused of a disciplinary offence , the accusation should be set out as soon as possible and the trial of the case should begin at DATE from the date of the commission of the offence and should be concluded as quickly as possible . ”

“ A prisoner shall not be punished before having acquired knowledge of the offence of which he is accused and without having been given the possibility to defend himself . ”

The ORG produced a report to ORG following its visit to GPE from DATE . As regards allegations of ill - treatment at the hands of other prisoners , the report noted as follows :

“ CARDINAL . The ORG is also concerned by several allegations received by the delegation that prison staff threatened inmates with transfer to ORG ( the maximum security unit ) and used one or more prisoners accommodated in FAC as a means of maintaining control over other inmates .

In this connection , one prisoner interviewed by the delegation claimed that , on DATE , he had been severely beaten by fellow inmates and subsequently placed in ORG . A criminal investigation had apparently only been initiated after the prisoner concerned succeeded in bringing the matter to the attention of the Minister of ORG and Public Order , who transmitted the case to the competent authority .

A similar case was brought to the delegation ’s attention by an official report of ORG . It would appear that , on DATE , CARDINAL of the alleged perpetrators ( ORG the above - mentioned assault had severely beaten another inmate ; the latter had required hospital treatment as a result . The Commissioner for ORG found that the case had not been investigated thoroughly by the establishment ’s management and added that ‘ the inexcusable delay in investigating such a serious incident gives good reason to suspect preferential treatment vis - à - vis I.C.’ .

It would be entirely unacceptable for prison staff to threaten prisoners in the above - mentioned manner as a means of control , let alone place prisoners at risk of assault from fellow inmates . The ORG wishes to emphasise that the duty of care which is owed by the prison authorities to prisoners in their charge includes the responsibility to protect them from other prisoners who might wish to cause them harm . In particular , prison staff must be alert to signs of trouble and be both resolved and properly trained to intervene when necessary .

The ORG recommends that the NORP authorities take the necessary steps with a view to preventing inter - prisoner violence , in the light of the above remarks .

The diligent examination by prison management of all information which may come to its attention regarding possible ill - treatment of prisoners by staff or inter - prisoner violence ( whether or not that information takes the form of a formal complaint ) and , if necessary , the instigation of proceedings , is also essential . Indeed , the lack of an appropriate response by prison management can foster a climate in which those minded to ill - treat prisoners can quickly come to believe – and with very good reason – that they can do so with impunity . The delegation gained the impression that the management of ORG was reluctant to adopt a proactive approach in this respect ... ”

The report also commented on measures of confinement in use in NORP prisons . It observed the following :

“ CARDINAL . The ORG must also express concern about the potential duration of measures involving the segregation of prisoners for disciplinary reasons ( confinement to a special isolation cell for a period of DATE and confinement to their own cell for DATE ) , and the fact that inmates undergoing segregation for disciplinary reasons were deprived of outdoor exercise throughout their sanction ( cf . paragraph CARDINAL ) .

... The disciplinary penalties include confinement to a special isolation cell for DATE , with simultaneous loss of contact with the outside world ( correspondence , visits and telephone calls ) , or confinement to a personal cell for DATE .

The ORG has serious reservations as to the maximum possible periods of disciplinary confinement ; it considers that they should be substantially reduced ...

The ORG also wishes to stress that a disciplinary punishment should never involve a total prohibition on contact with the outside world . Further , under no circumstances should visits between a prisoner and his / her family be withdrawn for a prolonged period ...

The ORG also pays particular attention to any prisoner held , for whatever reason , under conditions akin to solitary confinement .

Under the terms of LAW of ORG , the director can order the confinement or isolation of a prisoner for such a period as he deems necessary for the purpose of : maintenance of order ; protection of the interests of the prisoner himself or of other prisoners ; violent behaviour ; discipline . In this respect , the observations made by the delegation identified important lacunae as regards the guarantees which should surround such a measure . Indeed , no provision is made for those guarantees within LAW themselves .

The ORG wishes to stress that the principle of proportionality requires that a balance be struck between the requirements of the case and the application of a solitary confinement - type regime , which is a step that can have very harmful consequences for the person concerned . In particular , all forms of solitary confinement should be as short as possible . Further , they should be surrounded by certain guarantees . A prisoner in isolation or confinement or in respect of whom such a measure is extended , should be informed in writing of the reasons therefor ( it being understood that there might be reasonable justification for withholding specific details related to security from the prisoner ) and should be given an opportunity to express his views on the matter and have the right to appeal to an authority outside the prison establishment concerned against the imposition or extension of the measure . Further , the application of the measure should be fully re - examined at regular intervals ( DATE ) . In addition , all such measures should be properly entered in a specific register .

The ORG recommends that the NORP authorities review the provisions of LAW relating to isolation and confinement , in the light of the above principles . It also recommends that a special register be kept of all isolation / confinement measures , recording the identity of the prisoner , the reasons for the measure , the date and time of the commencement and end of the measure , the deciding authority and the precise place(s ) where the prisoner concerned has been accommodated .

Further , although the application of isolation / confinement for a prolonged period can be necessary in exceptional cases for reasons related to good order and safety , the ORG considers that the application of such a measure for disciplinary purposes is unacceptable ; the use of isolation / confinement for such purposes should be governed exclusively by LAW to CARDINAL of ORG .

The ORG recommends that the NORP authorities amend LAW accordingly . ”

As regards the conditions of the cells and the possibility of outdoor exercise for prisoners confined to their cells , the report found as follows :

“ CARDINAL . Material conditions in the cells used for administrative separation or disciplinary purposes ( CARDINAL cells in FAC CARDINAL) were adequate .

However , from the information received by the delegation during the visit , it emerged that prisoners in isolation or confined to their cells do not benefit from outdoor exercise , sometimes for extended periods . In particular , from an official investigation by ORG , it emerged that one prisoner had been placed in confinement in ORG for DATE without benefiting from outdoor exercise . Such a situation is unacceptable .

The ORG recommends that the NORP authorities immediately take the necessary steps to ensure that all prisoners placed in an isolation cell or confined to their cells , for whatever reason , benefit from TIME of outdoor exercise each day . ”

In respect of contact with family and friends , the report noted :

“ CARDINAL . The ORG wishes once again to underline the importance for prisoners of being able to maintain good contact with the outside world . Above all , they must be given the opportunity to safeguard their relationships with their family and friends , and especially with their spouse or partner and their children . The continuation of such relations can be of critical importance for all concerned , particularly in the context of ORG social rehabilitation . The guiding principle should be to promote contact with the outside world ; any restrictions on such contacts should be based exclusively on security concerns of an appreciable nature or considerations linked to available resources .

Under the terms of ORG , in principle all prisoners ( both remand and sentenced ) have the right to receive CARDINAL TIME visits DATE . In addition , a certain degree of flexibility is possible , for example , when the visitors concerned are family members living abroad . The ORG welcomes these arrangements . ...

Telephones have been installed within the prisons , CARDINAL in each block for use by prisoners from TIME This is in principle a very positive development . However , apart from in Block CARDINAL , which was only accommodating approximately CARDINAL prisoners , access to the telephone was rarely straightforward given the number of prisoners involved . ”

Finally , as regards communication of complaints to the ORG , the report stated :

“ DATE . During the visit carried out in DATE , the delegation observed that , in response to the recommendation made by the ORG in its report on the DATE visit , locked boxes had been installed , in which prisoners could put complaints for the attention of ORG . ”

“ CARDINAL Special high security or safety measures shall only be applied in exceptional circumstances .

CARDINAL.CARDINAL There shall be clear procedures to be followed when such measures are to be applied to any prisoner .

CARDINAL NORP The nature of any such measures , their duration and the grounds on which they may be applied shall be determined by national law .

CARDINAL NORP The application of the measures in each case shall be approved by the competent authority for a specified period of time .

CARDINAL NORP Any decision to extend the approved period of time shall be subject to a new approval by the competent authority .

CARDINAL LOC measures shall be applied to individuals and not to groups of prisoners .

CARDINAL.CARDINAL Any prisoner subjected to such measures shall have a right of complaint in the terms set out in Rule DATE .

CARDINAL ORG , individually or as a group , shall have ample opportunity to make requests or complaints to the director of the prison or to any other competent authority .

CARDINAL If a request is denied or a complaint is rejected , reasons shall be provided to the prisoner and the prisoner shall have the right to appeal to an independent authority ... ”


No violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing)

Guido Raimondi;Helen Keller;Ineta Ziemele;Paulo Pinto De Albuquerque

The applicant was born in DATE and lives in LOC .

In DATE the applicant approached ORG of ORG for a determination of whether she could become the legal guardian of her grandson , J.B. The Government specified that the ORG had provided the applicant with the information requested , but the applicant had never submitted an official application for guardianship .

On DATE , who did not possess a driver ’s licence , was driving a car and caused a car accident . As a consequence , the applicant ’s grandson PERSON , who had been a passenger in the car , died from his injuries . He was DATE . CARDINAL other passengers were seriously hurt .

The applicant was granted the status of a victim in criminal proceedings in respect of PERSON When being questioned by an investigator on DATE , she stated that she did not speak the NORP language . On DATE , the applicant submitted a civil claim which was written in NORP and translated by a translator from a police station . She claimed CARDINAL NORP litai ( LTL ) in respect of pecuniary damage , listing expenses which she had incurred in connection with her grandson ’s funeral . The applicant also claimed LTL CARDINAL,CARDINAL in respect of non - pecuniary damage .

On DATE the ORG , following criminal proceedings , found PERSON guilty of dangerous driving which had resulted in the death of a person ( Article CARDINAL § CARDINAL of LAW ) . He was sentenced to DATE imprisonment , but the execution of the sentence was suspended for DATE . The court did not pronounce on whether PERSON had been driving while intoxicated .

During the hearing , where the applicant , an interpreter , PERSON and his lawyer were present , the applicant asked that LTL CARDINAL,CARDINAL be awarded to her in compensation for pecuniary and non - pecuniary damage . The prosecutor asked the court to grant the request . PERSON stated that he could pay the applicant LTL CARDINAL each month .

The criminal court left the applicant ’s civil claim to be examined in separate civil proceedings .

On DATE the applicant instituted civil proceedings , claiming LTL CARDINAL for pecuniary and LTL CARDINAL for non - pecuniary damage . She stated that before his death her grandson had lived with her , as his mother lived in GPE and his father had another family . PERSON ’s death had caused the applicant severe emotional distress . In the applicant ’s understanding , the criminal court had already awarded her the sum of LTL CARDINAL in disposing of the criminal proceedings . She noted that although DATE had passed since the car accident , PERSON had not paid her the money . The applicant also referred to the possibility that , in the event that PERSON was in a difficult financial situation , compensation for the damage she had sustained might be paid to her in several instalments rather than as a lump sum .

The Government have provided the ORG with an invoice from a law firm to the effect that on DATE the applicant paid LTL CARDINAL for “ legal services ” .

On DATE the applicant presented the court with an estimate of her loss in connection with her grandson ’s death . She claimed LTL CARDINAL in total . That sum consisted of LTL CARDINAL for pecuniary damage , which included a detailed calculation of her grandson ’s burial costs , and LTL CARDINAL in compensation for non - pecuniary damage .

NORP In a written response PERSON asked the court to grant the claim in part and to award the applicant LAW .

Seeing the potential for the parties to reach a friendly settlement , on DATE the judge held a preliminary hearing . The applicant , an interpreter , PERSON and his lawyer were present . As is evident from the transcript of the hearing , after the judge had explained the parties’ rights to them , the applicant asked the court to include a calculation of her expenses in the case file . PERSON ’s lawyer , without making any other observations or statements , asked that documents concerning PERSON ’s salary and family situation also be included in the file . Both requests were granted .

When asked to present her arguments and claims on the merits , the applicant stated that during the criminal proceedings she , the prosecutor , PERSON and his lawyer had agreed that PERSON would pay her LTL CARDINAL in compensation under both heads . However , PERSON had paid nothing so far . The applicant argued that her financial situation was not good . She had no further requests .

PERSON acknowledged the civil claim in part , but stated that the sum of LTL CARDINAL,CARDINAL was too high .

The court held that the case should be decided following a court hearing with the participation of the parties and an interpreter .

On DATE the applicant sent the court a letter , raising the claim for compensation in respect of non - pecuniary damage by LTL CARDINAL,CARDINAL and requesting that she be awarded LTL CARDINAL in total under that head . She noted that her family had been suffering for DATE and implied that no steps towards reconciliation had been taken on PERSON ’s part .

According to the transcript of the Šalčininkai District Court hearing of DATE , the applicant , an interpreter and the lawyer for PERSON took part in that hearing . It was also noted that the judge had explained the parties’ rights to them and that the parties understood them . The judge also asked the parties to put forward any requests , if they had any . The applicant asked the court to include her modified compensation claim in the case file . Given that the other party did not object , the judge accepted the modified claim .

When hearing the case on the merits , the applicant again explained to the court that during the criminal proceedings the parties had come to an oral agreement that PERSON would pay her LTL CARDINAL,CARDINAL , but to that day he had paid nothing . She presented a very detailed calculation of her expenses , based on invoices , for her grandson ’s funeral and headstone construction costs . All in all , the applicant asked the court to award her the sum of LTL CARDINAL in compensation for pecuniary damage and LTL CARDINAL in compensation for non - pecuniary damage .

The lawyer for PERSON acknowledged that , given that her client had already been found guilty in criminal proceedings , only the question of damages remained . She also accepted that the applicant had suffered non - pecuniary damage because of her grandson ’s death . That being so , the lawyer asked the court to grant the applicant ’s civil claim in part and to award her payment of the costs which were justified by invoices . As to non - pecuniary damage , the lawyer asked the court to make an award which would be reasonable and fair , taking into account the economic situation in GPE and the fact that PERSON only had a low salary and had no other property .

The judge noted that the court ’s decision would be announced on DATE .

On DATE the ORG granted the applicant ’s claim in part . The court took notice of PERSON ’s conviction for dangerous driving and held that , consequently , it was not necessary to prove his liability in the civil proceedings . PERSON was ordered to fully compensate the pecuniary damage he had caused to the applicant by her grandson ’s death . Having had regard to the documents before it , the court awarded the applicant LTL CARDINAL,CARDINAL in compensation for pecuniary damage .

As to non - pecuniary damage , the Šalčininkai ORG took note of the applicant ’s claim that the loss of her grandson had caused her great mental suffering . For the court , it was nonetheless important to point out that the car accident had been caused by PERSON ’s recklessness , and not deliberately . It was also relevant that PERSON was relatively poor : he had a job but his salary was low ( the court did not specify the level of salary in the decision ) , and he had no other property or income . Moreover , PERSON was a young person , therefore “ the amount of compensation was not to ruin his life ” . Relying on the above arguments , ORG awarded the applicant LTL CARDINAL,CARDINAL in compensation for non - pecuniary damage .

The applicant appealed , arguing that the award of damages was too low and asking that the case be remitted to the first - instance court for fresh examination , “ in accordance with LAW . She submitted , with references to specific provisions of that LAW , that the first - instance court had breached the principle of adversarial proceedings , the principle of the parties’ procedural equality and a person ’s right to State legal aid . The applicant argued that she , as a LANGUAGE - speaking person of old age and little education , had not been able to properly exercise her rights at the hearing and effectively assert her claim . Neither had she been able to effectively support her claim by evidence .

In her appeal , the applicant also wrote that the judge hearing her case at ORG , just before the preliminary hearing concerning her claim and without noting it down in the transcript , had suggested to her that she find a lawyer . According to the applicant , the lawyer she approached had asked her to pay LTL CARDINAL for legal services . The applicant had no such money and had therefore had to represent herself before the court of first instance . According to her , the same lawyer in fact had represented PERSON before the court . Only after the first - instance court had adopted the decision on the merits had the applicant found out that she had had the right to free legal aid , paid for by the ORG . In her view , had she had a lawyer , she would have been in a much better position to defend her interests and to obtain a court decision that would have fulfilled her expectations .

The appeal hearing before ORG took place on DATE , in the presence of the applicant and an interpreter . Neither PERSON nor his lawyer took part in that hearing , although PERSON had been informed of its date . As is evident from the transcript of the hearing , after the presiding judge explained the applicant ’s rights to her , the applicant asked the court to admit in evidence CARDINAL documents about her and her husband ’s state of health . The request was granted . The applicant also submitted that she and her husband had been raising their grandson , PERSON , as of DATE . After his death , there was no one to help them in the household . The applicant asked the court to grant her civil claim on the basis of the submissions that she had already made in writing .

By a ruling of DATE , ORG dismissed the applicant ’s appeal . The court noted that at hearings on DATE and DATE the first - instance court had explained the applicant ’s procedural rights to her , in the presence of an interpreter , and that the applicant had understood those rights . There was no information in the case file leading to the conclusion that ORG had breached the rules of civil procedure or the principles mentioned by the applicant . The court held that the applicant ’s suggestion that her claim would have been fully granted if she had had a lawyer was unfounded , as a lawyer ’s participation in proceedings could not guarantee a favourable outcome . Moreover , the fact that PERSON had been represented by a lawyer with whom the applicant had failed to conclude an agreement to represent her did not affect the lawfulness and fairness of the decision the first - instance court had adopted .

ORG noted that before the accident , the applicant ’s grandson PERSON had lived with her for DATE and had often helped her , and that she had indeed lost the opportunity to communicate with him and to receive help from him . Nonetheless , the compensation award of LTL CARDINAL,CARDINAL for non - pecuniary damage which the first - instance court had made was reasonable . The lower court had also been correct in taking into account the fact that the applicant ’s grandson had died because of PERSON ’s recklessness and not because of a premeditated crime , as well as PERSON ’s difficult financial situation . Lastly , ORG found that the written evidence about the applicant ’s state of health that she had submitted to the appellate court did not give grounds to annul the first - instance court ’s decision .

On DATE the applicant submitted an appeal on points of law , drafted by a lawyer . She reiterated her argument that because she was a LANGUAGE - speaking person of old age , poor health and with little education , she had been unable to protect her interests properly in court without professional legal assistance . The applicant drew ORG attention to its ruling of DATE ( see paragraph CARDINAL below ) , arguing that the lower courts should have taken the above factors into account . She also argued that the lower courts had wrongly established that PERSON had caused the car accident merely by not being careful . In the applicant ’s view , PERSON had been openly reckless : he had had no driving licence and had been speeding . She did not argue that PERSON had been driving drunk . The applicant asked ORG to grant her civil claim in full and to award her the money she had paid for legal representation .

PERSON did not lodge a response to the applicant ’s appeal on points of law .

On CARDINAL DATE ORG , in written proceedings , dismissed the applicant ’s appeal on points of law . It noted that non - pecuniary damage was always to be compensated when a loss of life had occurred because of a crime . In this case , PERSON had not questioned his liability , the dispute thus concerning only the sum to be awarded in compensation for non - pecuniary damage . ORG also observed that the applicant ’s grandson had died not because of PERSON ’s premeditated actions , but because of his being reckless when driving and violating traffic rules . The lower courts had taken all the circumstances into account when assessing the amount of compensation . It was also noteworthy that the award of LTL CARDINAL,CARDINAL was close to the initial sum that the applicant had asked for in bringing the claim on DATE . Only later had she raised that claim by LTL CARDINAL,CARDINAL ( paragraph CARDINAL above ) . Should ORG raise the amount of compensation , it would mean re - evaluating the facts of the case de novo , and this was not within the competence of that court .

ORG did not pronounce on the applicant ’s claim that she had not been in a position to effectively defend her interests before the first - instance and appellate courts .

NORP In response to a request for information by the Government , on DATE ORG wrote that people living in the municipality are informed of free legal aid via a local newspaper , published in both the NORP and NORP languages . They can also obtain leaflets on the subject at the council ’s offices . Lastly , information about free legal aid is presented on billboards at ORG . Should a person request State legal aid , he or she can submit such a request without necessarily having to do so in the NORP language .

The Code of Civil Procedure ( hereinafter DATE “ the ORG ” ) provides that court proceedings are conducted in the country ’s official language , that is , NORP ( LAW ) . Civil proceedings are adversarial and each party must prove the facts it relies upon ( LAW ) .

Practice direction no . CARDINAL of ORG reads as follows :

“ ... The limits of a civil claim are defined by the ... entirety of the material legal basis [ for the claim ] indicated to the court ( the subject of the claim ) and by the evidence with which the requirements [ of the law ] are fulfilled ( the factual basis of the claim ) . Since , according to LAW ORG , only the plaintiff has the right to change the subject or the basis of the civil claim , [ or ] to increase or decrease the claim , the court when adopting a procedural decision may not overstep the limits of the civil claim ; i.e. may not change the subject of the civil claim ( the court may not adjudge something that was not requested by the plaintiff ( extra petita ) or adjudge a higher amount than was requested ( ultra petita ) , nor change the basis of the civil claim ( in its decision the court can not rely on facts that were not indicated by the plaintiff or evidence that the case file does not contain ) ( LAW ORG ) ) . ”

ORG ruling of DATE in civil case no . ORG reads as follows :

“ ... The principle of equality of arms has an immediate connection with the fundamental principles of civil proceedings – those of adversarial proceedings and control of the litigation by the parties ( dispozityviškumas ) . It has been established by the ORG that all civil cases in all courts shall be examined in accordance with the principle of adversarial proceedings . This m , only assesses the evidence , establishes the responses are based . The court thus does not examine facts or collect evidence on its own initiative , but has to explain the parties’ rights to them and equally assist them in exercising those rights when the parties are in need of such assistance ( for example , to obtain certain evidence on a party ’s request , when that party does not have access to such evidence ) . The court however is not entitled to take the side of CARDINAL of the parties and help [ that party ] to collect evidence , as in such a case not only would the principle of adversarial proceedings , but also the principles of equality of arms and impartiality of the court be violated ... ”

On DATE ORG , when assessing the pecuniary damage a claimant had sustained as a consequence of her injury during a car accident , noted that the claimant ’s personality , age and state of health were circumstances to be taken into consideration when assessing her capacity to collect and present evidence ( ruling in civil case no . CARDINALK-CARDINAL - CARDINAL/CARDINAL ) .

On the issue of explaining the parties’ rights , in its ruling of DATE in civil case no . ORG held :

“ ... The courts are bound by the ORG to explain to the persons taking part in the proceedings their rights and obligations ... Such [ an ] obligation on the court , however , does not mean that the court is bound to indicate what specific requests a party should submit or what specific means of defence against a civil claim a party should use in a particular case ... ”

If the presiding judge considers that a party to civil proceedings is incapable of adequately protecting its rights , he or she may suggest that that party obtain legal representation ( LAW ORG ) .

According to LAW of the ORG , in civil proceedings it is not necessary to prove de novo facts that have been proved in criminal proceedings in which a court judgment has entered into force .

An appellate court may quash the first - instance court ’s decision in part or in its entirety and refer the case for fresh examination ( LAW ) .

An appeal on points of law must be drafted by a lawyer ( LAW ) . The court reviewing such an appeal is bound by the facts established by lower courts and may only decide questions of law ( LAW ) .

Free legal aid is regulated by ORG . It is provided by , inter alia , ORG - funded legal aid services ( “ Services ” ) , municipal authorities and ORG . Each municipal authority and ORG must regularly inform local residents about the possibility of receiving free legal aid . The law defines CARDINAL categories of legal aid . Primary legal aid , that is the provision of legal information , legal advice , and drafting of documents to be submitted to municipal authorities and ORG institutions , is provided for at the municipal level . When a person wishes to receive secondary legal aid , which consists of drafting procedural documents and representation in court , he or she must address the ORG of that court ’s geographical area and prove his or her eligibility , which depends on the individual ’s financial means .

Pursuant to LAW , a person who has caused a car accident that has resulted in the death of a person may be punished by deprivation of liberty for DATE .

Article CARDINAL of the Civil Code provides that pecuniary loss resulting from any bodily or property damage caused to another person and also , in cases established by the law , non - pecuniary damage must be fully compensated by the person liable .

Under LAW , non - pecuniary damage is deemed to be a person ’s suffering , emotional distress , inconvenience , mental shock , emotional depression , diminution of the chance to associate with others , and so on , as evaluated by a court in monetary terms . Non - pecuniary damage is to be compensated in all cases where it has occurred due to crime , injury to health or loss of life , as well as in other cases provided for by law . In assessing the amount of non - pecuniary damage , a court must take into consideration the consequences of such damage sustained , the extent to which the person who caused the damage was at fault , his financial status and any other circumstances of importance for the case , in addition to the criteria of good faith , fairness and reasonableness .

In their observations on the admissibility and merits the Government provided CARDINAL examples of domestic case - law regarding compensation for wrongful death . They noted the CARDINAL DATE decision of ORG in case no . CARDINAL , wherein compensation in the sum of LTL CARDINAL was awarded to each of CARDINAL children whose father had died in a car accident ; LTL CARDINAL was awarded to his spouse and LTL CARDINAL to each of his parents . In addition , the court awarded DATE maintenance costs for the children . The defendant in that case was the Chancellery of ORG , whose driver had caused the accident .

By a decision of CARDINAL October CARDINAL in civil case no . CARDINAL , ORG awarded LTL CARDINAL each in respect of non - pecuniary damage to CARDINAL minor children and their grandmother , whose mother and daughter , respectively , had died because of medical malpractice . Compensation for pecuniary damage in the sum of LTL CARDINAL was also awarded . The court awarded LTL CARDINAL per month to each of the children until they reached the age of majority .

By a ruling of CARDINAL DATE in civil case no . CARDINALK-CARDINAL - CARDINAL/CARDINAL , ORG awarded the sum of LTL CARDINAL,CARDINAL in compensation for non - pecuniary damage to a mother whose son had been killed in a car accident . The sum of LTL CARDINAL,CARDINAL was awarded to compensate pecuniary loss .

Lastly , the Government referred to the ruling of CARDINAL DATE in civil case no . ORG by ORG , where LTL CARDINAL,CARDINAL was awarded in compensation for non - pecuniary damage to the claimant , whose mother had been murdered . The court noted that the son was not in close contact with his mother .


George Nicolaou;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Päivi Hirvelä;Vincent A. De Gaetano;Zdravka Kalaydjieva

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

ORG ( “ the Government ” ) were represented by their Agents , PERSON and PERSON of ORG .

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

On DATE , the applicant was assaulted by her husband PERSON at their home , after they had been out drinking . She suffered a severed artery on the right side of her head , which required CARDINAL stitches . She also suffered multiple bruising and sustained a blow to her head when she fell against a banister .

The applicant maintains that this was the last in a series of assaults which had been carried out by her husband in the course of DATE marriage . She made a statement to the police . The Government maintain that , in her statement , the applicant herself had accepted that , prior to DATE , she had only been subjected to emotional abuse and that it was only in DATE that the abuse turned physical . They further maintain that the applicant had not complained to the police at any time prior to the offence of DATE .

CARDINAL PERSON was arrested and charged with causing grievous bodily harm with intent to do grievous bodily harm contrary to LAW CARDINAL of the Offences Against the Person Act CARDINAL . He was granted bail on CARDINAL DATE and required to reside at an alternative address to the matrimonial home .

There was a reconciliation between the applicant and her husband , further to which he successfully applied to have his bail conditions varied so that he could return home .

On DATE , the applicant told the police that she no longer wished PERSON to be prosecuted . Nonetheless , the police file was sent to ORG of GPE ( “ the PPS ” ) , where it was allocated to a senior public prosecutor .

In light of the applicant ’s wish that PERSON not be prosecuted , the senior public prosecutor considered the case . The prosecutor did so according to the ORG ’s policy for prosecuting cases of domestic violence , which provides that cases will not automatically be stopped because the victim does not want to proceed and that , as a general rule , the ORG will prosecute cases where there is sufficient evidence and no factors preventing them from doing so .

The prosecutor sought further information , including a transcript of the CARDINAL emergency telephone call , medical reports , police notebook entries , the serious crime scene log , photographs of the scene and injuries , further statements to corroborate the applicant ’s account , information on the current status of the relationship , and a risk assessment . Following consultation with the regional prosecutor , it was decided that the prosecution should proceed , regardless of the applicant ’s statement withdrawing the complaint .

The reconciliation between the applicant and her husband proved to be only temporary and , when the applicant was informed of the ORG ’s decision , she reinstated her complaint .

On DATE , the PPS concluded that there was insufficient evidence of intention to do grievous bodily harm , as required for prosecution under section CARDINAL of LAW . The charge was therefore reduced to CARDINAL of grievous bodily harm contrary to section CARDINAL of the same LAW . The Government maintain that there was no discussion with Mr ORG ’s representatives regarding this decision .

Mr PERSON appeared for arraignment before GPE ORG on DATE . He entered a plea of not guilty .

The case was then listed for mention in ORG on DATE . The Government maintain that prosecuting counsel expressly requested a meeting with the applicant to explain the nature of the section CARDINAL charge against PERSON . On DATE Mr PERSON was re - arraigned and entered a plea of guilty .

He appeared for sentencing on DATE . The sentencing judge received inter alia a victim impact report on the applicant , photographs of her injuries and the transcript of the CARDINAL telephone call . He also had before him a probation service report He also heard a plea in mitigation from Mr ORG ’s counsel . Counsel accepted that , had there been a record of violence , an immediate custodial sentence would have been inevitable ; however , he submitted that there was no such record in Mr PERSON ’s case .

The judge sentenced Mr PERSON to CARDINAL months’ imprisonment , which was suspended for DATE . The judge ’s sentencing remarks were as follows :

“ Now PERSON I have looked carefully at this case . It is on the face of it and remains a serious matter . Conviction under LAW carries a maximum sentence of several GPE imprisonment . Your background is a surprising one to find for someone on such a serious charge of violence . You have no criminal record , you are a man who has lived now for DATE of your life without getting into the slightest trouble ; on the contrary , you have held down a number of very significant posts in your life and the reference provided to me shows me a side of your character which is very much to your credit . Sadly the events of TIME betray a different side to your character , which perhaps only emerged with consumption of alcohol . It seems that , although I did n’t choose to go into the detail too closely , so as not to cause distress to other persons in this case , in particular your wife , PERSON , it would appear that you felt upset and angry at what you perceived to be your wife ’s conduct on TIME in question . Both of you had had something to drink but it is your drink that I am concentrating on . It seems that you reacted to this by behaving in a cowardly and very unworthy way by striking her , by knocking her down and it appears that during the course of that she sustained an injury .

Now it is not for me to start to speculate on why precisely this happened . It seems , again without causing undue distress to her , that your relationship maybe was not what it might have been and what one might hope in a happy marriage although it is right to say that there seems to be no previous incident of this type . Nevertheless , as a result of your behaviour and perhaps for various other reasons , your marriage has now been damaged apparently irreparably and your wife has suffered this great trauma and of course your own position is not an enviable one either . I have read the victim impact statement on PERSON , who I understand is in the court , and it clearly demonstrates ... that she has suffered considerably through your behaviour . She has now had to make major life changes . She has gained some assistance with support of the counselling into her own life . She will have to undergo what the doctor describes as a tortuous period of readjustment . Other matters are speculated upon which I do n’t propose to read out in open court but in essence this ghastly affair has caused chaos in its wake for her and indeed it is right to say for you and again it sadly demonstrates to the court how drink can cause such a ORG change in some people ’s personality .

When I first read these papers it seemed to me inevitable that you would go to prison : the court will not and can not tolerate violence perpetrated against women in particular and that was my first instinct . I have read carefully , however , what has been said about you , both from the reference which has been provided and which speaks very highly of your otherwise good character and your good nature . I also note carefully the report presented to the court by the highly experienced Probation Officer Ms [ B ] who has very considerable experience of this type of case and I am impressed by the fact that she says of you and I quote :

‘ The defendant presents as ashamed and embarrassed with regard to the violent nature of the assault he perpetrated on his wife . The complete loss of control evidenced by PERSON on this date suggests some form of build up of pressure around the relationship and the trigger on this occasion is what is alleged to have occurred on TIME this incident.’

She says also :

‘ there is little doubt from my discussion with the defendant that his remorse for perpetrating this assault is genuine . There is evidence of some distorted thinking which supports controlling an aggressive behaviour in his psyche and this could be addressed through various appropriate programmes.’

Now I understand that you have actually even before coming to court engaged in counselling and have completed a number of counselling sessions . ... Well I have to concentrate in particular on the wrong done to your wife and it is for that wrong that you appear before the court DATE faced with the very real possibility of going to prison . I thought very carefully about a number of possible ways of disposing of the case . You pleaded guilty at the first reasonable opportunity and ... you will get full credit for that . Clearly that is something that should not be lightly brushed to CARDINAL side . Very often in cases of this type the defendant will brazen it out and require the injured party to give evidence , which as we all know is a highly distressing matter for any witness but particularly when it is a crime committed within the family . You have spared your wife that and that maybe demonstrates to me in a better way than any written words can a different side to your character and supports the view of the experienced probation officer that you genuinely feel ashamed and remorseful .

So in DATE and not without some considerable thought I have decided that the best way to deal with your case is to impose a prison sentence but not to make it immediate . I had thought about a probation order but it seems to me that you have completed a number of counselling sessions and whilst I am absolutely certain that further work with counselling might help , there is no reason why you could n’t undertake that voluntarily . I do n’t think it requires , in the particular circumstances that you are in , and the fact that you and your wife are now estranged , I do n’t think that it requires me to do that . ... [ A]lthough I can see advantages to probation in this particular case I can not see that it is the preferred course .

The sentence of the court therefore in this case is CARDINAL of CARDINAL months’ imprisonment to mark the seriousness of this offence and I am going to suspend the operation of that sentence for DATE . That is a long period of time longer than usual but it is a mark of the seriousness of the offence and also to give you an opportunity to put this behind you . You have already apologised . You have already indicated that you feel remorseful and it will give you and your wife , I hope , an opportunity to draw a line under this sad affair . Clearly your relationship has been seriously damaged by what has happened and you and your wife will have to rebuild your lives from a different prospectus . It will also remind you , PERSON , that if you get into any trouble in DATE I am sure it wo n’t be against your wife , but if you assault anyone else in such a serious manner you will go to prison , you understand that , and I have to warn you that if you do come back before the court within DATE you may well receive this sentence together with any sentence that is thought appropriate for any future offence . I hope given your background that it is only an academic fear and with control of your drinking habits and addressing the aggression that seems to be latent with drink , which you have already started to do , that the court will not see you back again .

I am obliged by law to consider the making of a compensation order . I have thought about this carefully in this case . I do n’t think it is appropriate in this particular case I think it is a matter best left to be dealt with by the criminal injury legislation and therefore the court , as I say , imposes a sentence of DATE suspended for DATE . If you commit no offence within DATE you will hear nothing more of this . You are now free to go . ”

On DATE , the applicant ’s solicitors wrote to the PPS seeking their views on the sentence . A meeting was then arranged for DATE between the senior public prosecutor and the applicant ; at the meeting the prosecutor explained the reasons for the prosecution decision in the case . According to the Government , the applicant indicated that she was content with the ORG ’s actions but remained unhappy with the sentence . A further letter was then sent on DATE by different legal representatives , raising concerns as to the handling of the case and the information provided by the ORG . The senior public prosecutor replied on DATE , referring to the meeting of DATE .

The applicant then complained to various public bodies in GPE about the excessive leniency of the sentence but without success . In particular , by letter dated DATE , the Attorney - General stated he did not have the power to apply to have the sentence reviewed by ORG ( on the grounds that it was “ unduly lenient ” ) as that power was limited to the most serious offences ( see relevant domestic law and practice at paragraph CARDINAL below ) .

The applicant sought compensation for her injuries . This was initially refused by ORG , on the basis that the physical injury suffered by the applicant was not sufficiently serious to reach the minimum level of severity required and there was no evidence of a disabling mental illness . The applicant requested a review of that decision . This led the ORG to refer the applicant for examination and assessment by a psychiatrist . Following receipt of the psychiatrist ’s report , on DATE the ORG offered the applicant compensation of ORG CARDINAL . The applicant accepted that offer .

The offences covered by sections DATE and CARDINAL of the Offences Against the Person Act DATE are CARDINAL of the CARDINAL principal offences against the person where bodily harm is caused ( the other , less serious offence is actual bodily harm contrary to section QUANTITY ) . Section CARDINAL carries a maximum sentence of imprisonment for life . By virtue of ORG ( No . CARDINAL ) ( GPE ) Order CARDINAL , in GPE section CARDINAL carries a maximum sentence of imprisonment for DATE .

For GPE , there are no sentencing guidelines for section CARDINAL assaults in the context of domestic violence . ORG in GPE has stated that , where guidelines promulgated by ORG and GPE accord with local experience , they may be followed ( Attorney - General ’s Reference ( Number DATE ) ORG and others [ DATE ] ORG CARDINAL ) . ORG and GPE has promulgated guidelines entitled “ Overarching Principles : Domestic Violence ” . Aggravating factors set out in the guidelines include : abuse of trust and abuse of power , violence where the victim is particularly vulnerable , where there is an impact on children , the exploitation of contact arrangements with a child in order to commit an offence , a proven history of violence or threats by the offender in a domestic setting , a history of disobedience to court orders , and where the victim is forced to leave home as a consequence of the offence . Mitigating factors include positive good character ( although good character in relation to conduct outside the home should generally be of no relevance where there is a proven pattern of behaviour ) and provocation ( although assertions of provocation should be treated with great care ) . Other factors influencing sentence include the wishes of the victim . Here , the guidelines state ( at paragraphs CARDINAL.CARDINAL–CARDINAL.CARDINAL ) :

“ As a matter of general principle , a sentence imposed for an offence of violence should be determined by the seriousness of the offence , not by the expressed wishes of the victim .

There are a number of reasons why it may be particularly important that this principle is observed in a case of domestic violence :

• it is undesirable that a victim should feel a responsibility for the sentence imposed ;

• there is a risk that a plea for mercy made by a victim will be induced by threats made by , or by a fear of , the offender ;

• the risk of such threats will be increased if it is generally believed that the severity of the sentence may be affected by the wishes of the victim .

Nonetheless , there may be circumstances in which the court can properly mitigate a sentence to give effect to the expressed wish of the victim that the relationship be permitted to continue . The court must , however , be confident that such a wish is genuine , and that giving effect to it will not expose the victim to a real risk of further violence . Critical conditions are likely to be the seriousness of the offence and the history of the relationship . It is vitally important that the court has up - to - date information in a pre - sentence report and victim personal statement .

Either the offender or the victim ( or both ) may ask the court to take into consideration the interests of any children and to impose a less severe sentence . The court will wish to have regard not only to the effect on the children if the relationship is disrupted but also to the likely effect on the children of any further incidents of domestic violence . ”

The Government have provided statistics on those convicted of section CARDINAL offences in GPE for DATE . The most common sentence was an immediate custodial sentence ( with the average sentences for DATE being CARDINAL months’ imprisonment ) . However , a significant proportion of offenders received suspended custodial sentences instead . For instance , in DATE , of CARDINAL offenders , CARDINAL received immediate custodial sentences and CARDINAL received suspended custodial sentences ( the remainder were given community orders , fines or conditional discharges ) .

Sections DATE and CARDINAL of LAW DATE allow the Attorney - General to apply to have sentences for certain offences reviewed by ORG . He or she may do so when a particular sentence appears to him or her to be unduly lenient . An offence under section CARDINAL does not fall within the provisions of sections CARDINAL and DATE and thus the Attorney - General can not apply to have a sentence for that offence reviewed by ORG .

ORG ( GPE ) Order DATE provides civil protection for victims of domestic violence in GPE . LAW allows a court to make an “ occupation order ” , which can require a respondent to leave a house . Articles CARDINAL provide for the making of non - molestation orders . Article CARDINAL makes it an offence without a reasonable excuse to contravene a non - molestation order or , where a non - molestation order is also in force , an occupation order . The maximum penalty is a fine or CARDINAL months’ imprisonment ( LAW ( Miscellaneous Provisions ) ( GPE ) Order DATE ) .

ORG launched the above , DATE strategy in DATE . The foreword states that domestic violence is a crime and is not acceptable in any circumstances , and that the strategy focuses on preventative measures and on the provision of better protection , justice and support services for victims and their children . Initiatives include media advertising and the introduction of a free , TIME , domestic violence telephone helpline .

In PERSON the defendant pleaded guilty to causing death by dangerous driving . He had been drinking . The victim was his friend , who had been in the car he was driving . He was sentenced to CARDINAL years’ imprisonment . When he appealed against his sentence , the victim ’s mother and sister supported his appeal , stating that the length of the sentence was adding to their grief . ORG reduced the sentence to CARDINAL GPE imprisonment . In doing so , it observed :

“ We mean no disrespect to the mother and sister of the deceased , but the opinions of the victim , or the surviving members of the family , about the appropriate level of sentence do not provide any sound basis for reassessing a sentence . If the victim feels utterly merciful towards the criminal , and some do , the crime has still been committed and must be punished as it deserves . If the victim is obsessed with vengeance , which can in reality only be assuaged by a very long sentence , as also happens , the punishment can not be made longer by the court than would otherwise be appropriate . Otherwise cases with identical features would be dealt with in widely differing ways leading to improper and unfair disparity , and even in this particular case , as the short judgment has already indicated , the views of the members of the family of the deceased are not absolutely identical .

If carried to its logical conclusion the process would end up by imposing unfair pressures on the victims of crime or the survivors of a crime resulting in death , to play a part in the sentencing process which many of them would find painful and distasteful . This is very far removed from the court being kept properly informed of the anguish and suffering inflicted on the victims by the crime .

In the present case , however , the ORG is concerned not with the judgment of the deceased ’s mother and sister about the level of sentence imposed on the applicant , but with the clear evidence , which we accept , that by its very length the sentence on [ the defendant ] is adding to the grief and anxiety which they are suffering consequent on [ the victim ’s ] death . When the mother and sister of the deceased and the rest of the family have already suffered so much , we do not think that these adverse consequences of this particular sentence should be disregarded .

In mercy to them we shall reduce the sentence as far as we can , consistent with our continuing public duty to impose appropriate sentences for those who cause death by driving dangerously under the influence of drink . ”


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

NORP The applicant company is a limited liability company which at the material time carried on a business of buying debts .

On DATE the applicant company instituted civil proceedings before ORG ( PERSON ) against ORG ( ORG ) . The applicant company had agreed to buy from CARDINAL hospitals the debts owed by ORG to the hospitals in the amount of MONEY ( ORG ) provided that the company won its case against the ORG . The applicant company sought payment of the above - mentioned sum together with interest , which amounted to ORG ( MONEY ( ORG ) ) . The hospitals claimed that the ORG should be liable for paying the cost of medical treatment that had exceeded the contract that every hospital had negotiated with the ORG but which had been necessarily sustained by them in providing medical services to insured persons .

NORP The applicant company also asked for exemption from court fees , submitting that it had been involved in several court disputes in order to claim debts for medical services .

On DATE the ORG partly allowed the claim and exempted the company from court fees in excess of PLN MONEY ( EUR CARDINAL ) . The court examined the profit generated by the company and found that the assets deposited in its bank account amounted to ORG CARDINAL . Moreover , in DATE the president of the board had received ORG CARDINAL as payment for an unknown service . The court thus concluded that the company had been able to pay this amount of court fees without damaging its operation .

On DATE ORG dismissed the action . The court agreed with the arguments of the defendant , who had refused liability for costs in excess of the amounts agreed in the contracts between the ORG and the hospitals . The court established that the contracts had not been renegotiated and had remained valid , which excluded the ORG ’s liability for expenses sustained by the hospitals that exceeded the contracts .

The applicant company lodged an appeal against the judgment .

On DATE ORG ordered the applicant company to pay a further PLN CARDINAL,CARDINAL in court fees for pursuing its appeal . On DATE the applicant company applied for an exemption from those fees , claiming that the company had already been exempted from fees and should not be ordered to pay any more at the appeal stage . In its supplementary documents the applicant company submitted that the company did not have the required sum of money in its bank account and that previously it had had to borrow from a private individual . The company was small and new on the market , thus it would not be able to obtain a bank loan . In sum it had not been possible for it to pay a further ORG CARDINAL,CARDINAL and the refusal to exempt it from court fees would amount to a violation of its right to court .

On DATE ORG dismissed the application for exemption from the court fees . The court established that the DATE turnover of the company had reached ORG ( EUR CARDINAL,CARDINAL ) although in its bank account it only had CARDINAL . The court , in CARDINAL point of its reasoned decision , found that the company had generated over ORG CARDINAL gross income ( przychód ) , but it had then taken this amount to be net profit ( dochód ) . The court also acknowledged that the applicant company had declared costs and expenses in the amount of MONEY , and thus generated a net loss . In sum , the court concluded that the company must have had other sources of revenue which would make it possible to pay the court fees .

The applicant company appealed against the decision , pointing to the difference between gross and net income . The applicant company maintained that it had been generating no profits but high net losses . The sum of ORG CARDINAL,CARDINAL was gross income , from which costs and expenses should be subtracted to yield the net loss . It had been a mistake on the part of the court to take this sum to be the net profit .

On DATE ORG ( FAC ) dismissed the applicant company ’s appeal . The court considered that the applicant company had been conducting its business activity and producing gross income . The fact that the company declared high costs for its activity had not justified exemption from court fees as it had freedom to spend its gross income as it chose . The court fees should be considered as one of the costs of its business activity .

On DATE ORG rejected an appeal by the applicant company on grounds of inability to pay the court fees . An appeal by the applicant company against this decision was dismissed on DATE .

On DATE the applicant company lodged a constitutional complaint against the provisions governing the imposition of court fees and exemptions from them .

On DATE ORG refused to hear the constitutional complaint .

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

The applicant company made another unsuccessful attempt to challenge the constitutionality of the provisions governing court fees . However , on DATE , ORG , in a final decision , refused to hear the second constitutional complaint .

On DATE ORG dismissed a civil claim for payment lodged by the applicant company against ORG ( ORG GPE ) . The applicant company lodged an appeal .

On DATE ORG dismissed the applicant company ’s appeal .

On DATE ORG dismissed a cassation appeal lodged by the applicant company .

The legal provisions applicable at the material time and questions of practice are set out in paragraphs CARDINAL of the judgment delivered by ORG on DATE in the case of PERSON v. GPE ( no . CARDINAL/CARDINAL , ORG CARDINAL-VI ; see also PERSON and GPE v. GPE , no . GPE , § § CARDINAL ) .


The applicant [ Mr PERSON ] is a NORP national who was born in DATE and lives in GPE . Before the ORG he was represented by PERSON , of ORG .

The facts , as submitted by the applicant , may be summarised as follows .

On DATE ORG of ORG ( the autonomous regional government ) drew up a non - compliance report on the applicant on the ground that as the lessor of a number of business LOC he had failed to deposit with ORG , as required by the provisions of the Junta ’s Decree no . CARDINAL/CARDINAL of DATE , the sums corresponding to the statutory securities paid to him by his tenants , a total of MONEY .

By a decision of DATE the ORG ordered the applicant to deposit the sum corresponding to the securities and to pay a fine of the same amount . He was informed that in the event of failure to comply notice - to - pay proceedings would be brought against him for recovery of the debt ( recaudación por vía de apremio ) .

The applicant appealed against the above decision to ORG arguing in particular that the obligation to deposit sums equivalent to the securities with a public institution in the form of a deposit without interest breached LAW , which guarantees the right of property and to peaceful enjoyment of possessions , and LAW , which guarantees the principle of equality before the law . By a judgment of DATE , served on the applicant on DATE , ORG dismissed the appeal , holding , firstly , that the general interest and the social dimension of the right to housing justified certain inequalities with regard to leases , and secondly that the social function of the right of property could also justify restrictions on the right to dispose of certain possessions , regard being had to the fact that the funds thus deposited were used to finance housing policy .

The applicant lodged a recurso de amparo with ORG , appealing against the above judgment and alleging in particular the breach of ORG CARDINAL § CARDINAL ( right to a fair hearing ) , CARDINAL § CARDINAL ( principle that offences and penalties must be defined by law ) and QUANTITY ( right to peaceful enjoyment of possessions ) of the Spanish Constitution . By a decision of DATE , served on the applicant on DATE , ORG dismissed this appeal . With regard to the complaint of an infringement of the right to peaceful enjoyment of possessions ( LAW ) , it observed that , according to LAW ( b ) of the LAW and section CARDINAL(CARDINAL ) of LAW on ORG , the right protected by LAW was not one of those which could form the subject of a recurso de amparo . As regards the complaints under LAW and CARDINAL § CARDINAL of the LAW , ORG ruled that they were manifestly ill - founded .

“ CARDINAL . The Constitutional Court shall have jurisdiction throughout NORP territory and it is empowered to hear :

( b ) individual appeals for protection ( amparo ) on account of infringement of the rights and freedoms contemplated in LAW in the cases and the forms prescribed by law ;

“ CARDINAL . The rights and freedoms set forth in ORG DATE LAW may form the subject of a recurso de amparo in the cases and the forms defined by the present LAW ... Identical protection shall be afforded to the right to conscientious objection recognised in LAW .