Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Article 5-1-a - After conviction;Article 5-1-c - Reasonably necessary to prevent offence;Article 5-1-e - Persons of unsound mind);Violation of Article 7 - No punishment without law (Article 7-1 - Heavier penalty;Nulla poena sine lege;Retroactivity);Non-pecuniary damage - award

Angelika Nußberger;Ann Power-Forde;Dean Spielmann;Ganna Yudkivska;Karel Jungwiert;Mark Villiger

The applicant was born in DATE and is currently in FAC .

DATE the applicant was convicted in CARDINAL judgments of offences including theft , robbery , extortion , assault and dangerous assault and spent DATE in prison .

On DATE the GPE ORG convicted the applicant of CARDINAL counts of attempted murder . It sentenced him to DATE imprisonment and ordered his preventive detention ( LAW , see paragraphs CARDINAL below ) .

ORG found that in DATE the applicant and an accomplice had shot at CARDINAL policemen several times in order to escape arrest and criminal prosecution following the discovery of their plans to carry out an armed bank robbery using a stolen car . A psychological expert and a neurological expert consulted by the court , who had both examined the applicant in person , confirmed that the applicant was suffering from a personality disorder characterised , in particular , by antisocial conduct , which was , however , not serious enough to be classified as pathological . The court therefore considered that he had acted with full criminal responsibility . The applicant ’s preventive detention was necessary as , owing to his criminal tendencies , there was a risk that he might commit similar serious offences in the future and he was thus a danger to the public .

On DATE ORG ordered that the applicant ’s preventive detention , imposed by the judgment of DATE of ORG , take place in a psychiatric hospital ( Article CARDINALc § CARDINAL and Article CARDINALa LAW , see paragraphs CARDINAL and CARDINAL below ) from DATE , when the applicant would have fully served his prison sentence . According to the report drawn up at the court ’s request by an external psychiatric expert , PERSON , the findings of whom the court endorsed , the applicant suffered from schizophrenia simplex characterised by autistic behaviour and from a serious personality disorder . The expert took the view that the applicant had not been diagnosed with that illness before DATE because it was characterised mostly by disorders concerning the affectivity , thinking or personality and less by hallucinations or delusional ideas . He should therefore be transferred to a psychiatric hospital as soon as possible for socio - therapeutic treatment and medication . Without such treatment , the applicant , owing to his tendency to commit serious offences , was a danger to the public .

On DATE the applicant , having fully served his prison sentence , was placed for the first time in preventive detention , in psychiatric hospitals in ORG and Straubing .

On DATE ORG ordered that the applicant ’s preventive detention should take place in prison instead of in a psychiatric hospital ( Article NORP § CARDINAL of LAW , see paragraph CARDINAL below ) . It considered that the applicant ’s preventive detention in a psychiatric hospital was not helping to rehabilitate him .

ORG noted that the psychiatric expert , PERSON , whom it had consulted in DATE , had taken the view that the applicant ’s chronic schizophrenia could be better treated and his rehabilitation better furthered in a psychiatric hospital . A doctor at ORG had considered that the applicant suffered from an antisocial personality disorder and , possibly , from psychosis of a schizophrenic nature . The treating doctors at ORG had , however , taken the view that the applicant ’s rehabilitation could not be furthered in that clinic as the applicant , who suffered from a schizophrenic - type disorder and antisocial conduct , had persistently refused any of the therapies offered . The Straubing prison authorities had opposed the applicant ’s transfer back to prison , arguing that the applicant ’s illness could only be treated in a psychiatric hospital . The court , having heard the applicant in person , endorsed the hospital ’s findings .

NORP Since DATE the applicant has been detained in a separate wing of ORG for persons in preventive detention .

NORP The continuation of the applicant ’s preventive detention in prison was ordered by ORG on DATE .

On DATE ORG ordered that the applicant ’s preventive detention was to take place in a psychiatric hospital ( Article CARDINALa LAW , see paragraph CARDINAL below ) . On DATE ORG quashed that decision for lack of sufficient findings as to the illnesses or disorders from which the applicant suffered and as to the need to treat these in a psychiatric hospital and remitted the case to ORG .

On DATE ORG ordered that the measure of the applicant ’s preventive detention be further enforced in prison . It underlined that for the applicant to be transferred to a psychiatric hospital under ORG and CARDINAL of LAW , it was only decisive whether the applicant ’s rehabilitation could be better furthered thereby ; the preconditions of LAW ( see paragraph CARDINAL below ) did not have to be met .

ORG endorsed the findings of a psychiatric expert , PERSON , it had consulted . The expert had considered that the applicant most probably suffered from a serious personality disorder with antisocial and schizoid elements , but not from schizophrenia simplex . As he refused therapy and his conduct had not changed substantially since DATE he was liable to reoffend if released . The expert held that he should not be transferred to a psychiatric hospital under Article DATE and CARDINAL of LAW . His rehabilitation could not be better furthered by such a transfer , as required by the said provision , because the disorder from which he suffered could not be treated primarily by medication and he refused therapy . Expert PERSON ’s findings were contested by the medical director of the psychiatric wing of FAC , who maintained that the applicant suffered from an illness , schizophrenia simplex , which could be adequately treated only in a psychiatric hospital .

On DATE ORG , sitting as a chamber responsible for the execution of sentences , ordered the applicant ’s preventive detention to continue even after completion of DATE in such detention ( Article QUANTITY of LAW , see paragraph DATE below ) .

ORG found that the applicant was liable to commit further offences , in particular assaults and robberies , if released . It further considered that the applicant was not to be transferred to a psychiatric hospital under Article DATE LAW because his rehabilitation could not be better furthered thereby . It referred in this respect to the findings of the psychiatric expert it had consulted , ORG , who had found that the applicant refused treatment in a psychiatric hospital . The court noted that the fact that the applicant suffered from a mental illness and the particular nature of that illness was not decisive for its finding under Article CARDINAL LAW that the applicant ’s rehabilitation could not be better furthered in a psychiatric hospital . Its view that the applicant ’s preventive detention should take place in prison was confirmed by the fact that the applicant ’s previous transfer to a psychiatric hospital had not yielded any success .

NORP In reaching its decision , ORG had regard to the report dated DATE submitted by expert PERSON latter , who had examined the applicant in person , had taken the view that the applicant , an antisocial personality , suffered from a schizophrenic - type disorder characterised by noticeable problems in the person ’s conduct , thinking and mood , which gave the impression of schizophrenia , but without any symptoms indicating actual schizophrenia . He had considered that the applicant did not suffer from schizophrenia , a diagnosis made following several previous examinations and as maintained by the medical director of the psychiatric wing of ORG , L. , who still considered that the applicant could be adequately treated only in a psychiatric hospital . Expert PERSON noted that since DATE the applicant was no longer being treated in the psychiatric wing of FAC .

NORP The psychiatric expert had further considered that the applicant was likely to reoffend in view of his numerous previous convictions and the fact that he had committed his offences in DATE shortly after having been released from prison . Moreover , he had subsequently been convicted of assault ( in DATE ) and of a drug offence committed in prison ( in DATE ) . He hardly had any social contact outside prison . His personality disorder had not been treated as he had refused psychiatric therapy . He had also refused to apply for relaxations in the conditions of his detention and had announced that he would abscond if granted leave under escort . Measures would need to be taken to prepare his conditional release , such as finding contact persons outside prison , social training and relaxations in the conditions of his detention as soon as this appeared justifiable .

By DATE the applicant had served DATE in preventive detention .

On DATE ORG dismissed the applicant ’s appeal . Endorsing the reasons given by ORG , it found that there was still a risk that , if released , the applicant , owing to his criminal tendencies , might commit serious offences , in particular assaults , robberies or thefts , resulting in considerable psychological or physical harm to the victims ( Article CARDINAL of LAW ) . His continued preventive detention was therefore still proportionate .

ORG endorsed expert PERSON ’s finding that the applicant ’s rehabilitation would not have been better furthered by his transfer to a psychiatric hospital as he refused treatment .

On DATE the applicant lodged a constitutional complaint with ORG . He argued that his continued preventive detention after completion of DATE on the basis of the amended Article QUANTITY § CARDINAL of LAW , which had entered into force after he had committed his offence , violated his human dignity , his right to liberty , the prohibition of retrospective punishment and the right not to be punished twice for the same offence under LAW .

On DATE ORG declined to consider the applicant ’s constitutional complaint ( file no . CARDINAL BvR CARDINAL/CARDINAL ) . It found that the applicant ’s complaint had no prospects of success . The criminal courts had verified the continued danger posed by the applicant in accordance with the standards set by LAW . Article CARDINAL of LAW , as amended in DATE , permitted the continued preventive detention , for DATE if necessary , of incorrigible offenders who persisted in refusing any treatment and remained a danger despite their advancing age .

Since DATE the preventive detention order against the applicant has been executed in a separate wing of ORG for persons in preventive detention . Persons in preventive detention have certain privileges compared with convicted offenders serving their sentence .

NORP In particular , at the relevant time , persons in preventive detention had more wide - ranging possibilities to occupy themselves in their spare time ( TIME could be spent outside on DATE ; use of a well - equipped sports room ; additional private telephone calls ) . They had shorter lock - up TIME ( TIME less per day ) , more generous visiting times ( TIME month ) and more wide - ranging opportunities to purchase goods ( CARDINAL extra opportunities to buy a larger variety of goods ) . They further had the right to wear their own underwear , use their own bed linen and bath robes , and have more pocket money . They had bigger cells ( the applicant ’s cell measures QUANTITY . m ) which they could equip with bigger TV sets and additional furniture .

The applicant is considered by the Straubing prison authorities to be a nervous choleric person filled with hatred . Numerous disciplinary measures have had to be imposed on him , in particular for assaults on fellow prisoners and insults directed at the prison staff . He neither has contact with his fellow prisoners nor does he receive any visits from outside the prison . Since DATE it has no longer been possible to assign him suitable work in prison .

As regards the therapy offered to the applicant , he stopped taking medication shortly after having started treatment for schizophrenia simplex with which he was diagnosed in DATE . This led to disturbances in his thinking , insufficient energy and a risk of occasional hallucinations . The legal preconditions for the forced administration of medication have never been met .

DATE and DATE the applicant was offered psychiatric treatment for schizophrenia simplex with which he had been diagnosed in ORG and Straubing psychiatric hospitals but he was unwilling to undergo treatment .

In Straubing Prison the applicant consistently refuses to accept the treatment offered or to meet the psychiatric experts who come to examine him in person .

On DATE ORG , sitting as a chamber responsible for the execution of sentences , ordered the applicant ’s preventive detention to continue under Article CARDINAL of LAW . Endorsing the findings made by the psychiatric expert it had consulted , ORG , the court found that there was still a risk that the applicant , owing to his criminal tendencies , might commit serious offences if released . There was a risk , in particular , that he might commit assaults and robberies , resulting in considerable psychological or physical harm to the victims . The court further considered that the applicant ’s preventive detention should not take place in a psychiatric hospital under Articles CARDINALa LAW and CARDINAL of LAW because , as had been convincingly shown by the expert , the applicant ’s rehabilitation could not be better furthered thereby . The fact that the applicant suffered from a psychiatric illness was not decisive for the decision to be taken under the said provisions .

The expert consulted by the court , who had to draw up his report on the basis of the case file as the applicant had refused to submit himself for examination , found that the applicant suffered from an antisocial personality disorder , characterised by a lack of empathy , disregard for social rules , aggressive behaviour and a lack of feelings of guilt . He further suffered from a schizophrenic - type disorder , which was generally characterised by eccentric behaviour and abnormalities in the person ’s thinking and mood , which gave the impression of schizophrenia without any symptoms indicating actual schizophrenia : the applicant displayed eccentric and mistrustful behaviour , lacked social contact and experienced occasional hallucinations . It was , however , very unlikely that he suffered from schizophrenia simplex . The disorders from which the applicant suffered had still not been treated successfully and he continued to refuse therapy and medication . Therefore , the applicant ’s rehabilitation could not be better furthered in a psychiatric hospital , where a lack of disciplinary measures could lead to him displaying even more antisocial conduct . He considered that the applicant should be transferred to a psychiatric hospital under Article DATE LAW if he no longer refused to take the necessary medication .

On DATE ORG , endorsing the reasons given by ORG , dismissed the applicant ’s appeal .

On DATE ORG dismissed the applicant ’s appeal against ORG decision of CARDINAL DATE not to order his immediate release in view of the ORG ’s judgment of CARDINAL DATE in the case of PERSON GPE ( cited above ) . It found that the applicant ’s objections had to be examined in different proceedings to be instituted ex officio under LAW of LAW ( see paragraph CARDINAL below ) .

The city of Straubing did not subsequently apply for the applicant to be placed in a psychiatric hospital under LAW NORP ( Mentally Ill Persons’ ) Placement Act ( see paragraph CARDINAL below ) . The psychiatric expert it had consulted , who had examined the applicant in person , had considered that the applicant suffered from a personality disorder with antisocial and schizoid elements , but not from a schizophrenic psychosis . The applicant ’s free will was not impaired by that personality disorder so that the requirements for a placement in a psychiatric hospital under the said Act were not met .

Following the leading judgment of CARDINAL DATE of ORG on preventive detention ( see paragraphs CARDINAL below ) , ORG initiated proceedings for a fresh review of whether the applicant ’s preventive detention was to be terminated in the light of the principles established in the said judgment . The psychiatric expert consulted in the proceedings had to draw up her report on the basis of the case - file as the applicant refused to have himself examined by her . She took the view that the applicant suffered from a mental disorder ( a schizophrenic - type personality disorder and a dissocial personality ) within the meaning of section CARDINAL of LAW ( see paragraph CARDINAL below ) . It was his dissocial personality which contributed considerably to his dangerousness . In the expert ’s view , it was highly likely that the applicant would commit further violent offences if released . On DATE ORG , endorsing the findings of the psychiatric expert , decided not to declare the execution of the preventive detention order against the applicant terminated . The proceedings are currently pending before ORG .

The applicant is currently still in preventive detention , imposed by the GPE ORG on DATE and taking place in a separate wing of ORG for persons in preventive detention .

A comprehensive summary of the provisions of LAW and of LAW governing the distinction between penalties and measures of correction and prevention , in particular preventive detention , and the making , review and execution in practice of preventive detention orders , is contained in the ORG ’s judgment in the case of PERSON GPE ( no . CARDINAL , § § DATE , CARDINAL DATE ) . The provisions referred to in the present case provide as follows :

The sentencing court may , at the time of the offender ’s conviction , order his preventive detention ( a so - called measure of correction and prevention ) under certain circumstances in addition to his prison sentence ( a penalty ) , if the offender has been shown to be a danger to the public ( LAW ) .

NORP In particular , the sentencing court orders preventive detention in addition to the penalty if someone is sentenced for an intentional offence to CARDINAL years’ imprisonment and if the following further conditions are satisfied . Firstly , the perpetrator must have been sentenced twice already , to DATE imprisonment in each case , for intentional offences committed prior to the new offence . Secondly , the perpetrator must previously have served a prison sentence or must have been detained pursuant to a measure of correction and prevention for DATE . Thirdly , a comprehensive assessment of the perpetrator and his acts must reveal that , owing to his propensity to commit serious offences , notably those which seriously harm their victims physically or mentally or which cause serious economic damage , the perpetrator presents a danger to the general public ( see LAW , in its version in force at the relevant time ) .

Article CARDINALc of the Criminal Code governs orders for the preventive detention of convicted persons which has not taken place immediately after the judgment ordering it becomes final . Paragraph CARDINAL of the LAW provides that if a term of imprisonment is served prior to a simultaneously ordered placement in preventive detention , the court responsible for the execution of sentences ( that is , a special chamber of ORG composed of CARDINAL professional judges , see sections ORG and CARDINAL ) of LAW ) must review , before completion of the prison term , whether the person ’s preventive detention is still necessary in view of its objective . If that is not the case , it suspends the execution of the preventive detention order and applies a measure of probation ; supervision of the person ’s conduct ( GPE ) commences with the suspension .

Pursuant to LAW , the court ( that is , the chamber responsible for the execution of sentences ) may review at any time whether the further execution of the preventive detention order should be suspended and a measure of probation applied . It is obliged to do so within fixed time - limits ( paragraph CARDINAL of Article CARDINAL ) . For persons in preventive detention , this timelimit is DATE ( paragraph CARDINAL of Article CARDINAL ) .

Under Article CARDINAL § CARDINAL of LAW , in its version in force prior to DATE , the first period of preventive detention may not exceed DATE . If the maximum duration has expired , the detainee shall be released ( Article QUANTITY § CARDINAL ) .

Article CARDINAL of LAW was amended by the Combating of Sexual Offences and Other LAW of DATE , which entered into force on DATE . Article CARDINAL § CARDINAL , in its amended version , provides that if a person has spent DATE in preventive detention , the court shall declare the measure terminated ( only ) if there is no danger that the detainee will , owing to his criminal tendencies , commit serious offences resulting in considerable psychological or physical harm to the victims . Termination shall automatically entail supervision of the offender ’s conduct . The former maximum duration of a first period of preventive detention was abolished . Pursuant to section CARDINALa(CARDINAL ) of LAW to LAW , the amended version of Article CARDINAL of LAW was to be applied without any restriction ratione temporis .

Article DATE of the Criminal Code contains provisions on the transfer of detainees for the execution of a different measure of correction and prevention than the measure ordered in the judgment against them . Under Article CARDINALa § CARDINAL , read in conjunction with § CARDINAL , of LAW , the court may subsequently transfer a perpetrator against whom preventive detention was ordered to a psychiatric hospital if the perpetrator ’s reintegration into society can be better promoted thereby . The court may quash that decision if it later emerges that no success can be achieved by placing the perpetrator in a psychiatric hospital ( Article DATE § CARDINAL ) . The duration of the placement is determined by the provisions which apply to the measure ordered in the judgment ( Article NORP § CARDINAL ) .

The detention of mentally ill persons is provided for , first of all , in LAW as a measure of correction and prevention if the detention is ordered in relation to an unlawful act committed by the person concerned . LAW provides that if someone commits an unlawful act without criminal responsibility or with diminished criminal responsibility , the court will order his placement – without any maximum duration – in a psychiatric hospital if a comprehensive assessment of the defendant and his acts reveals that , as a result of his condition , he can be expected to commit serious unlawful acts and that he is therefore a danger to the general public .

Secondly , pursuant to sections CARDINAL § CARDINAL , CARDINAL and CARDINAL of LAW on the Placement in an Institution of Mentally Ill Persons and Their Care of DATE ( NORP ( Mentally Ill Persons’ ) Placement Act – Bayerisches Gesetz über die PERSON LOC deren GPE ) a court may order a person ’s placement in a psychiatric hospital at the request of the authorities of a town or county if the person concerned is mentally ill and thereby poses a severe threat to public security and order . Such an order may only be executed as long as no measure under LAW has been taken ( LAW of LAW ) .

Furthermore , on DATE , following the ORG ’s judgment in the case of PERSON GPE ( cited above ) , LAW Gesetz zur Therapierung und PERSON gestörter PERSON ) entered into force . Under sections CARDINAL § CARDINAL and CARDINAL of that Act , the civil sections of ORG may order the placement in a suitable institution of persons who may no longer be kept in preventive detention in view of the prohibition of retrospective aggravations in relation to preventive detention . Such a therapy detention may be ordered if the person concerned has been found guilty by final judgment of certain serious offences for which preventive detention may be ordered under LAW of LAW . The person must further suffer from a mental disorder owing to which it is highly likely that he will considerably impair the life , physical integrity , personal liberty or sexual self - determination of another person . The person ’s detention must be necessary for the protection of the public .

On CARDINAL DATE ORG delivered a leading judgment concerning the retrospective prolongation of the ORG preventive detention beyond the former DATE maximum period and about the retrospective order of the ORG preventive detention respectively ( file nos . CARDINAL BvR CARDINAL/CARDINAL , CARDINAL BvR CARDINAL/CARDINAL , CARDINAL BvR CARDINAL/CARDINAL , CARDINAL BvR CARDINAL/CARDINAL and CARDINAL BvR CARDINAL/CARDINAL ) . ORG held that all provisions on the retrospective prolongation of preventive detention and on the retrospective order of such detention were incompatible with LAW as they failed to comply with the constitutional protection of legitimate expectations guaranteed in a ORG governed by the rule of law , read in conjunction with the constitutional right to liberty .

The Federal Constitutional Court further held that all provisions of LAW on the imposition and duration of preventive detention at issue were incompatible with the fundamental right to liberty of the persons in preventive detention . It found that those provisions did not satisfy the constitutional requirement of establishing a difference between preventive detention and detention for serving a term of imprisonment ( PERSON ) . These provisions included , in particular , LAW in its version in force since DATE .

ORG ordered that all provisions declared incompatible with LAW remained applicable until the entry into force of new legislation and until DATE at the latest . In relation to detainees whose preventive detention had been prolonged or ordered retrospectively , the courts dealing with the execution of sentences had to examine without delay whether the persons concerned , owing to specific circumstances relating to their person or their conduct , were highly likely to commit the most serious crimes of violence or sexual offences and if , additionally , they suffered from a mental disorder within the meaning of section LAW ( see paragraph CARDINAL above ) . As regards the notion of mental disorder , ORG explicitly referred to the interpretation of the notion of “ persons of unsound mind ” in LAW sub - paragraph ( e ) of the LAW made in this ORG ’s case - law ( see § § CARDINAL and CARDINAL - CARDINAL of ORG judgment ) . If the above pre - conditions were not met , those detainees had to be released DATE . The other provisions on the imposition and duration of preventive detention could only be further applied in the transitional period subject to a strict review of proportionality ; as a general rule , proportionality was only respected where there was a danger of the person concerned committing serious crimes of violence or sexual offences if released .

In its judgment , ORG stressed that the fact that the LAW stood above the LAW in the domestic hierarchy of norms was not an obstacle to an international and NORP dialogue between the courts , but was , on the contrary , its normative basis in view of the fact that the LAW was to be interpreted in a manner that was open to public international law ( völkerrechtsfreundliche GPE ; see § CARDINAL of ORG judgment ) . It stressed that , in line with that openness of the LAW to public international law , it attempted to avoid breaches of the LAW in the interpretation of LAW ( see § § DATE and CARDINAL of ORG judgment ) .

In its reasoning , ORG relied on the interpretation of LAW made by ORG in its judgment in the case of PERSON GPE ( cited above ; see § § CARDINAL ss . of ORG judgment ) . It stressed , in particular , that the constitutional requirement of establishing a difference between preventive detention and detention for serving a term of imprisonment and the principles laid down in LAW required an individualised and intensified offer of therapy and care to the persons concerned . In line with the ORG ’s findings in the case of PERSON GPE ( cited above , § CARDINAL ) , it was necessary to provide a high level of care by a team of multi - disciplinary staff and to offer the detainees an individualised therapy if the standard therapies available in the institution did not have prospects of success ( see § CARDINAL of ORG judgment ) .


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

The applicant , Mr PERSON Reshetnikov , is a NORP national who was born in DATE and lives in GPE . He was represented before the ORG by Mr PERSON , a lawyer practising in GPE . ORG ( “ the Government ” ) were represented by PERSON , former Representative of GPE at ORG , PERSON , First Deputy Minister of ORG , and PERSON , Representative of GPE at ORG .

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

On DATE charges of rape were brought against the applicant , and he was detained pending the investigation .

On DATE the ORG of GPE convicted the applicant of illegal deprivation of liberty , sexual abuse and attempted rape and sentenced him to DATE imprisonment .

The applicant appealed , alleging a violation of his right to defence .

On DATE the ORG quashed the judgment on appeal , having considered that the applicant ’s right to defence had been violated during the trial , and remitted the case for a retrial .

On DATE the Presidium of the ORG quashed the decision of CARDINAL DATE by way of supervisory review and remitted the judgment of DATE for a new appeal hearing .

On DATE the ORG reduced the applicant ’s sentence to DATE and CARDINAL months’ imprisonment and upheld the rest of the judgment on appeal .

Following the applicant ’s request , on DATE ORG of GPE , having considered that the applicant ’s right to defence had not been respected at the stage of the pre - trial investigation , quashed the judgment of DATE , as upheld on DATE , by way of supervisory review , and remitted the case for a retrial . ORG ordered that the applicant should be remanded in custody pending determination of the criminal charge against him . The decision was taken in the applicant ’s absence .

Following the quashing of the applicant ’s conviction by way of supervisory review the applicant sought to have criminal proceedings instituted against the judges who tried his case in DATE , without success .

The applicant also brought civil proceedings seeking to recover damages for his unlawful conviction of DATE , as upheld on appeal on DATE . On DATE ORG in the final instance dismissed his claims .

On DATE ORG of GPE again convicted the applicant .

On DATE ORG overturned the judgment of DATE on appeal , because the trial court had not respected the applicant ’s rights to defence , and remitted the case for a retrial .

On DATE ORG convicted the applicant of sexual abuse and attempted rape and sentenced him to DATE months’ imprisonment .

On DATE ORG upheld the conviction on appeal .

Following ORG decision of DATE to remand the applicant in custody , on CARDINAL DATE ORG of Chelyabinsk scheduled a hearing on the applicant ’s case and held that the applicant should remain in custody . The decision was given in the applicant ’s absence , and the latter was informed about it only after it had become final . On DATE ORG granted the applicant ’s request to restore the time - limit for appeal against the decision of CARDINAL DATE . However , on DATE ORG upheld the decision to keep the applicant in detention .

In the meantime , on DATE ORG of GPE extended the applicant ’s detention until DATE . The applicant ’s appeal against this decision was examined by ORG on DATE .

On DATE ORG of Chelyabinsk , having convicted the applicant , held that he should remain in custody .

On DATE ORG , having quashed the judgment of DATE , held that the preventive measure of detention imposed on the applicant should remain unchanged .

On DATE the ORG of GPE scheduled a hearing on the applicant ’s case and held that the applicant should remain in custody . On DATE ORG upheld the above decision on appeal .

On DATE ORG of GPE ruled once again that the applicant should remain in custody . On DATE ORG upheld the above decision on appeal .

On DATE the ORG held that the preventive measure imposed on the applicant should remain unchanged . On DATE ORG upheld the above decision on appeal . As indicated above the applicant was convicted by ORG on DATE .


NORP The applicant , PERSON , is a NORP national who was born in DATE and lives in GPE , GPE . He was represented before the ORG by Ms M. Gąsiorowska , a lawyer practising in GPE . The respondent Government were represented by their Agent , Mr J. Wołąsiewicz , of ORG .

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

On DATE the applicant was detained on remand on suspicion of fraud and forgery . He was released on bail on DATE .

On DATE a bill of indictment against the applicant and his coaccused was lodged with ORG ( PERSON ) . The applicant was charged with several counts of fraud and forgery , allegedly committed DATE .

The first hearing was scheduled for DATE but it was adjourned due to the applicant ’s absence . Subsequently , the trial court held hearings on CARDINAL DATE and DATE and on DATE , CARDINAL DATE , CARDINAL DATE , DATE and DATE . In DATE the court held QUANTITY hearings .

On DATE ORG gave judgment . The applicant and the co - accused were convicted as charged . The applicant was sentenced to CARDINAL years’ imprisonment and a fine . The applicant appealed .

On DATE ORG ( Sąd Apelacyjny ) heard the appeal . It partly quashed the impugned judgment in so far as it concerned the conviction of the applicant and remitted the case . The remainder of ORG judgment , concerning the coaccused , was upheld .

On DATE ORG held a hearing at which it dismissed an application by the applicant for the bail conditions imposed on him to be lifted .

The applicant appealed against this decision . On DATE ORG dismissed his appeal .

The next hearing was scheduled for DATE .

The proceedings are pending before ORG .

On DATE the Law of DATE on complaints about a breach of the right to a trial within a reasonable time ( LOC o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki ) ( “ the CARDINAL Act ” ) entered into force . It lays down various legal means designed to prevent and/or provide redress for the undue length of judicial proceedings .

Section CARDINAL of the DATE Act reads , in so far as relevant :

“ CARDINAL . NORP Parties to proceedings may complain

Pursuant to section CARDINAL :

“ A complaint may be lodged :

( CARDINAL ) in criminal proceedings – by a party or a victim even if he is not a party ;

( CARDINAL ) in civil proceedings DATE by a party ( strona ) , an intervener ( interwenient uboczny ) or a participant ( uczestnik postępowania ) ; ... ”

Section CARDINAL provides , in so far as relevant :

“ CARDINAL . The complaint shall be examined by the court immediately above the court conducting the impugned proceedings .

NORP If the complaint concerns an unreasonable delay in the proceedings before ORG or ORG it shall be examined by ORG . ... ”

Section CARDINAL reads , in so far as relevant :

“ CARDINAL . A complaint about the unreasonable length of proceedings shall be lodged while the proceedings are pending . ... ”

Section CARDINAL provides for measures that may be applied by the court dealing with the complaint . It reads , in so far as relevant :

“ CARDINAL . The court shall dismiss a complaint which is unjustified .

NORP If the court considers that the complaint is justified , it shall find that there was an unreasonable delay in the impugned proceedings .

At the request of the complainant , the court may instruct the court examining the merits of the case to take certain measures within a fixed time - limit . Such instructions shall not concern the factual and legal assessment of the case .

NORP If the complaint is justified the court may , at the request of the complainant , grant ... just satisfaction in an amount not exceeding PLN CARDINAL,CARDINAL to be paid by ORG . If such just satisfaction is granted it shall be paid out of the budget of the court which conducted the delayed proceedings . ”

Section CARDINAL provides for an additional compensatory remedy :

“ CARDINAL . NORP Parties whose complaints have been allowed may seek compensation from ORG ... for the damage they suffered as a result of the unreasonable length of the proceedings . ”

Section CARDINAL further specifies that :

“ A party who has not lodged a complaint about the unreasonable length of the proceedings under LAW ( CARDINAL ) may lodge a claim DATE under LAW ... – after the proceedings concerning the merits of the case have ended , seeking compensation for the damage which resulted from the unreasonable length of the proceedings . ”

Section CARDINAL concerns court fees for lodging a complaint :

“ CARDINAL . The complainant shall pay a court fee in the amount of PLN CARDINAL ....

NORP If the court considers that the complaint is justified , it shall reimburse the court fee to the complainant . ”

Section CARDINAL lays down the following transitional rules in relation to the applications already pending before the ORG :

“ CARDINAL . Within DATE after the date of entry into force of this law persons who , before that date , had lodged a complaint with ORG ... complaining of a breach of the right to a trial within a reasonable time guaranteed by LAW ... , may lodge a complaint about the unreasonable length of the proceedings on the basis of the provisions of this law if their complaint to ORG had been lodged in the course of the impugned proceedings and if the ORG has not adopted a decision concerning the admissibility of their case .

A complaint lodged under subsection CARDINAL shall indicate the date on which the application was lodged with the ORG .

The relevant court shall immediately inform the Minister of ORG of any complaints lodged under subsection CARDINAL . ”

Articles CARDINAL et seq . of LAW ( ORG cywilny ) provide for the ORG ’s liability in tort .

In the version applicable until DATE , Article CARDINAL § CARDINAL , which lays down a general rule , read as follows :

“ CARDINAL . The State Treasury shall be liable for damage caused by a ORG official in the course of carrying out the duties entrusted to him . ”

On DATE the Law of DATE on amendments to LAW and other statutes ( LOC o zmianie ustawy – ORG cywilny oraz niektórych innych ustaw ) ( “ the DATE Amendment ” ) entered into force .

Following LAW , Article DATE was added , which , in so far as relevant , reads as follows :

“ CARDINAL . If damage has been caused by failure to give a ruling ( orzeczenie ) or decision ( decyzja ) where there is a statutory duty to give them , reparation for [ the damage ] may be sought after it has been established in the relevant proceedings that the failure to give a ruling or decision was contrary to the law , unless otherwise provided for by other specific provisions . ”

However , the transitional provision in LAW , stated that LAW , as applicable before DATE ( see paragraph CARDINAL above ) , was to apply to all events and legal situations that subsisted before that date .

On DATE ORG ( Sąd Najwyższy ) adopted a resolution ( no . III SPP CARDINAL/CARDINAL ) in which it ruled that while LAW produced legal effects as from the date of its entry into force ( DATE ) , its provisions applied retroactively to all proceedings in which delays had occurred before that date and had not yet been remedied .


Violation of Art. 3;Violation of Art. 5-1 in respect of two periods of detention;No violation of Art. 5-1 in respect of one period of detention;Violation of Art. 8;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic and Convention proceedings

The applicant was born in DATE and lives in GPE .

The applicant was suspected of having committed various fraudulent offences between DATE and DATE . In DATE criminal proceedings on CARDINAL counts of cheating , suppression of documents and false accounting were instituted against him . As the applicant had absconded from the investigation , on DATE the prosecutors declared him a wanted person .

On DATE the applicant was arrested in GPE on an extradition request by the NORP authorities . He was extradited to GPE on DATE .

NORP On DATE ORG ordered the applicant 's detention on remand until DATE on suspicion of his suppressing documents . The court referred to the dangers of the applicant absconding and committing further offences . On DATE the court extended the term to DATE , on CARDINAL March to CARDINAL DATE and on DATE to DATE .

On DATE the case was transmitted to ORG . On DATE the court committed the applicant for trial . On the same date the court also authorised the applicant 's detention , stating that his remand must remain unchanged . No term of the detention was specified .

On DATE ORG convicted the applicant of cheating and suppressing documents but acquitted him of false accounting . He was sentenced to DATE imprisonment and his property was confiscated . The court ordered him to pay CARDINAL NORP litai ( LTL ) of damages in favour of a bank .

On DATE the ORG amended the first instance judgment insofar as it concerned the damages against the applicant , reducing the amount to CARDINAL LTL .

Upon the applicant 's cassation appeal , on DATE ORG quashed the above decisions and returned the case for a new first instance examination . No question relating to the applicant 's remand in custody was mentioned by ORG in the decision .

On DATE ORG ordered the applicant 's detention on remand until DATE on suspicion of his having cheated and suppressed documents . The court referred to the danger of the applicant absconding . ORG also noted that on DATE ORG had not ruled on the applicant 's remand . On DATE the term of the applicant 's detention was extended until DATE . On DATE the term was extended until DATE . On DATE ORG extended the term of the applicant 's remand in custody “ until a court judgment would be taken in the case ” .

On DATE the ORG convicted the applicant of suppressing documents and acquitted him of cheating . CARDINAL LTL were awarded against the applicant in damages in favour of a bank . The sentence of DATE imprisonment was reduced by CARDINAL due to an amnesty law . The applicant was released in the courtroom as he was deemed to have already completed his sentence because of the time he had spent on remand . The court also ordered his release on bail , with home arrest , until the entry into force of the judgment . The applicant and his lawyer were present during the hearing .

On DATE ORG rejected the applicant 's appeal . On that date the conviction took effect for the purposes of domestic law and the bail constraints ceased . The applicant and his representative were present at the appeal hearing .

On DATE ORG examined the applicant 's cassation appeal . The court amended the lower decisions , reducing the applicant 's sentence to DATE imprisonment . The applicant and his defence counsel were present before ORG . That decision was final .

From DATE until DATE the applicant was held at ORG ( PERSON tardymo izoliatorius ) . From CARDINAL to CARDINAL DATE he was held at a GPE police custody centre . On DATE he was again detained at ORG until his release on DATE .

The applicant gave the following account of the detention conditions at ORG :

Living space for one prisoner amounted to QUANTITY . The applicant states that he lived and slept in cells of QUANTITY where from CARDINAL inmates were held . There was an open toilet in each cell . They lacked ventilation and had a strong smell due to the inmates ' smoking and toilet use . The cells were very humid and cold , particularly during the DATE . The insufficiency of the living space was aggravated by the scarce time for strolling in the prison yard ( TIME DATE ) . Prison bedding was in an awful and dirty condition . All washing had to be done by hand in a sink in the cell . There was a constant lack of hot and cold water . The applicant had access to a shower only once in DATE . Food was prepared and served in awful conditions . Only CARDINAL LTL per day were allocated for an inmate 's catering .

The Government provided the following account of the applicant 's detention conditions at ORG :

From DATE until DATE the applicant was held at the cell no . CARDINAL of the prison which accommodated QUANTITY detainees at the time . The overall capacity of the cell was QUANTITY , i.e. CARDINAL.CARDINAL m² per detainee .

From DATE until DATE he was held in the cell no . CARDINAL which accommodated CARDINAL inmates . The cell 's capacity was CARDINAL m² , i.e. CARDINAL m² per detainee .

From DATE until DATE the applicant was held in the cell no . CARDINAL which accommodated CARDINAL inmates . The capacity of cell was CARDINAL.CARDINAL m² , i.e. CARDINAL m² per detainee .

From DATE until DATE he was held in the cell no . DATE which had CARDINAL inmates , including the applicant . The cell 's capacity was PERSON , i.e. CARDINAL.CARDINAL m² per detainee .

From DATE until DATE the applicant was held in the cell no . DATE which accommodated CARDINAL inmates . The capacity of the cell was CARDINAL.CARDINAL m² , i.e. CARDINAL.CARDINAL m² per inmate .

The cells had toilets separated by QUANTITY - high partitions . The cells also had windows , and the ventilation and lighting were adequate . Inmates were allowed to smoke , but persons could apply to the prison administration to be transferred to a no - smoking cell upon request . In DATE the sanitation facilities were renovated . In DATE a new heating system was installed . After the renovation in DATE of the prison bath , possibilities were afforded for each detainee to use the bath once DATE . In DATE industrial laundry facilities were procured , therefore allowing for adequate washing of inmates ' clothes and bedding .

NORP The applicant alleged that his letters to ORG and DATE , and to ORG , DATE , DATE , CARDINAL , DATE and DATE , CARDINAL DATE , CARDINAL and DATE , CARDINAL , DATE , DATE , DATE , DATE , DATE and DATE , CARDINAL and DATE had been censored by the administration of ORG .

The applicant also alleged that the letters addressed to him by ORG DATE , ORG , DATE and DATE , DATE , DATE , DATE , CARDINAL , DATE and DATE , DATE had been opened up and read in his absence by the administration of ORG .

Article CARDINAL of the LAW prohibits inhuman and degrading treatment . Conditions of detention of remanded persons are regulated by ORG . LAW provides that conditions of detention in remand centres shall not be inhuman or degrading , and that these conditions shall correspond to the relevant requirements and norms established by ORG and other authorities .

The following is the summary of the provisions of LAW applicable at the material time in relation to detention on remand . All these provisions have now been repealed as a result of the entry into force on DATE of the new Code of Criminal Procedure .

Article CARDINAL :

“ No one shall be arrested save by virtue of a decision of a court , or an order of a judge ... ”

Article ORG :

“ Detention on remand shall be used only ... in cases where a statutory penalty of DATE imprisonment is envisaged . ... .

The grounds for detention on remand shall be the reasoned suspicion that the accused will :

( CARDINAL ) abscond from the investigation and trial ;

( CARDINAL ) obstruct the determination of the truth in the case [ influence other parties or destroy evidence ] ;

( CARDINAL ) commit new offences ... whilst suspected of having committed crimes provided in ORG ... [ CARDINAL ] [ cheating , ] CARDINAL [ embezzlement ] of LAW ... ”

Article CARDINAL - CARDINAL ( in force from DATE to DATE ) :

“ ... [ T]he arrested person shall be brought before a judge within not more than CARDINAL hours ... The judge must hear the person as to the grounds of the arrest . The prosecutor and counsel for the arrested person may take part in the inquiry . After having questioned the arrested person , the judge may maintain the arrest order by designating the term of detention , or may vary or revoke the remand measure . ...

After the case has been transmitted to the court ... [ it ] can order , vary or revoke the detention on remand . ”

The amended LAW in force from DATE until DATE ) provided that the prosecutor and defence counsel must have taken part in the first judicial inquiry of the arrested person , unless the judge decided otherwise . The amended provision also permitted the court to extend the detention on remand before its expiry .

Article CARDINAL § CARDINAL ( in force from DATE to DATE ) :

“ For the purpose of extending the term of detention on remand [ at the stage of pre - trail investigation a judge ] must convene a hearing to which defence counsel and the prosecutor and , if necessary , the detained person shall be called . ”

The LAW in force from DATE to CARDINAL DATE made obligatory the attendance of the detainee at the remand hearings .

“ An arrested person or his counsel shall have the right during the pre - trial investigation to lodge [ with an appellate court ] an appeal against the detention on remand ... . With a view to examining the appeal , there may be convened a hearing , to which the arrested person and his counsel or only counsel shall be called . The presence of a prosecutor is obligatory at such a hearing .

The decision taken by [ the appellate judge ] is final and can not be the subject of a cassation appeal .

A further appeal shall be determined when examining the extension of the term of the detention on remand . ”

Article CARDINAL - CARDINAL ( as in force from DATE to CARDINAL DATE ) provided for an appeal to a higher court and a hearing against a decision ordering or extending the term of detention both at the stage of pre - trial investigation and trial , in the presence of the detainee and his counsel , or only his counsel .

Article CARDINAL § CARDINAL ( in force until DATE ) :

“ The period when the accused and his counsel have access to the case - file is not counted towards the overall term of pre - trial investigation and detention . Where there are several accused persons , the period during which all the accused and their counsel have access to the case - file is not counted towards the overall term of pre - trial investigation and detention . ”

From DATE to CARDINAL DATE that period was no longer relevant for remand decisions .

“ Decisions of courts ... ordering , varying or revoking a remand measure ... can not be the subject of appeal ... ”

Pursuant to the general provision of LAW , a first instance decision was not effective pending the time - limit for an appeal against that decision or during the appeal proceedings . Only those decisions against which no appeal was possible , including remand decisions under the former LAW , became effective and were executed on DATE when they were taken . Article CARDINAL § CARDINAL as amended on DATE specified that all decisions of detention on remand became effective and were executed on the date when they were taken , regardless of the fact that an appeal was possible against any such decision under the amended LAW in force from DATE to CARDINAL DATE , see above ) .

LAW :

“ After having decided , that there is a sufficient basis to commit the accused for trial , a judge individually or a court in a directions hearing shall determine the questions ...

( CARDINAL ) of the remand measure in respect of the accused ... ”

Article CARDINAL :

“ In the course of the trial , a court may decide to order , vary or revoke a remand measure in respect of the defendant . ”

Article CARDINAL of the LAW guarantees the right to respect for one 's private life , family life and correspondence .

According to LAW , which were applicable at the material time , remanded persons ' letters could be subject to censorship .

Rule CARDINAL of the Remand Prisons Internal Rules provides that the remand centre administration can not open letters of detainees addressed to ORG if those letters were given to the administration to be sent in a closed envelope .

Rule CARDINAL provides that the remand prison administration shall familiarise the detainee with a reply to his correspondence within DATE following receipt of the letter addressed to the detainee . Therefore , as a rule , all letters received by the detainees are not given to them and are kept in their files by the remand centre administration .


Violation of Art. 6-1;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - Convention proceedings

In DATE the applicant concluded a contract with ORG ( an insurance company incorporated in GPE ) , according to which she paid an insurance premium in exchange for an annuity .

Since ORG failed to pay the annuity at the term , the applicant brought a civil action against it , seeking the payment of the pension to date and requiring the company to abide by the contract .

On DATE , ORG found in favour of the applicant and ordered ORG to pay the pension due and to resume the execution of the contract .

ASITO appealed against this judgment , asking inter alia for the cancellation of the contract concluded with the applicant in DATE on the ground that the economic situation of the country had become worse and that the interest rate of ORG had changed .

On DATE , ORG dismissed the appeal arguing that the contract of DATE was legal and valid and therefore had to be upheld by the parties . ASITO lodged an appeal in cassation against this judgment .

In the meantime , on an unspecified date , ORG lodged an “ appeal in the interests of the law ” with ORG . According to ORG , the appeal had the purpose of clarifying the controversy surrounding all such contracts and of setting a uniform practice for all the courts .

On DATE , ORG issued a judgment deciding the dispute between ORG and the pension beneficiaries in favour of the former . It also ruled that its judgment had no retrospective effect on any already existing judgments and that it could not be used against the parties to those proceedings .

On DATE , a panel of ORG composed of judges PERSON ( president ) , GPE and GPE , quashed the judgments of DATE and CARDINAL DATE , and found in favour of ORG .

After the delivery of the judgment , the applicant found out that the mandate of Judge PERSON , who had presided at the hearing , had expired in DATE and that he had been dismissed from the position of judge in DATE .

Article CARDINAL of the LAW of the NORP GPE of DATE provided as follows :

The judges ... shall be elected by ORG for a term of office of DATE .

The Decision of the Supreme NORP of GPE , No . CARDINAL of DATE provided :

... ORG is appointed as a judge at ORG ...

The Presidential Decree No . CARDINAL of DATE , in so far as relevant , provided :

ORG is dismissed from the position of judge .

The relevant parts of LAW in force at the material time read as follows :

Section CARDINAL . The grounds for challenging a judge

A judge shall not be admitted to sit in a case and shall be challenged in the following cases :

CARDINAL ) NORP if he or she participated in an earlier stage of the proceedings as a witness , expert , interpreter , representative , prosecutor , registrar ;

CARDINAL ) NORP if he or she is personally interested , directly or indirectly , in the outcome of the proceedings or if there are other reasons for which his impartiality could be doubted ;

CARDINAL ) NORP if he , his spouse , his ascendants or descendants have any interest in the outcome of the proceedings ... ;

CARDINAL ) NORP if his spouse ... is a relative of one of the parties to the proceedings ... ;

CARDINAL ) NORP if he is a tutor ... of one of the parties to the proceedings .

Section CARDINAL . Adjourning the hearing

It is possible to request the adjournment of a hearing when one of the parties , a witness , an expert or an interpreter is absent , or when it is necessary to present new evidence or when there are other circumstances which render impossible the holding of the hearing .

On DATE a new Code of Civil Procedure entered into force . Section CARDINAL , so far as relevant , reads as follows :

“ Grounds for revision

Revision may be requested :

k ) When ORG has found a violation of fundamental rights and liberties , as well as when it has found that the interested person could obtain , in accordance with domestic law , at least partial reparation by way of annulment of a judgment pronounced by a domestic court .... ”


Violation of P1-1;Just satisfaction reserved

Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky

The applicant was born in DATE and lived in GPE .

On DATE the applicant bought a plot of land ( plot no . CARDINAL in the GPE , in LOC of GPE ) from the heirs of ORG

On DATE ORG ( “ the Ministry ” ) brought an action before ORG , requesting the annulment of the title deed of the applicant to plot no . CARDINAL and its registration in the ORG 's name , claiming that it had had actual possession of this land since DATE . ORG primarily relied on LAW no . ORG ) . ORG also alleged that an expropriation had been effected in relation to the said land in DATE and that ORG had received compensation for it . However , the land register had not been amended due to an administrative error .

On DATE ORG accepted the request of ORG and ordered that the land be registered in favour of the ORG in accordance with LAW no . ORG . In its judgment , the first - instance court noted that ORG had been in actual possession of this land for DATE and that the applicant had been aware of this fact when he had bought the plot .

The applicant appealed .

On DATE ORG upheld the judgment of DATE .

The applicant requested rectification of the decision of DATE .

On DATE ORG dismissed the applicant 's request .

On DATE ORG decision was served on the applicant .

On DATE ORG annulled LAW no . ORG .

A full description of the domestic law may be found in GPE ( Çökmez ) and Others v. GPE ( no . CARDINAL/CARDINAL , § § DATE , DATE ) .


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

On DATE the applicant filed an action in ORG ( PERSON ) against a private person PERSON , the GPE City Internal Affairs Office ( PERSON sekretarijat za unutrašnje poslove GPE ) and ORG ( Gradska zajednica općina ) , for payment of damages regarding his apartment in GPE . Subsequently , the applicant altered his claim and named as defendants PERSON , GPE ( Grad GPE ) and GPE ) .

Until the date of entry into force of the LAW in respect of GPE , i.e. , DATE , ORG as the court of first instance held numerous hearings and the relevant authorities examined the applicant ’s numerous motions for , inter alia , the removal of the presiding judges .

The most recent such motion was filed by the applicant on DATE requesting the removal of the presiding judge . He also challenged ORG for bias and requested that his case be dealt by a different court . On DATE ORG ( PERSON ) rejected the applicant ’s request .

The next hearing in ORG scheduled for DATE was adjourned at the applicant ’s request due to his absence from GPE .

The next hearing scheduled for DATE was adjourned due to the applicant ’s illness .

At the next hearing on DATE it was noted that the applicant had instituted another set of civil proceedings with ORG against the judge presiding in the case in question and GPE . Therefore , the presiding judge requested permission to withdraw . His request was accepted and he was exempted from sitting . The applicant also submitted further specifications on his claim .

The case was then transmitted to another judge . At the hearing on DATE the applicant ’s counsel was invited to submit evidence concerning the specification of the applicant ’s claim within DATE .

On DATE the applicant ’s counsel informed the court that she had ceased to represent the applicant .

On DATE the applicant submitted further evidence and again changed his claim . According to the Government , the new claim was not expressed in terms that , if it was to be successful , would make it capable of judicial enforcement .

At the hearing on DATE the applicant appeared with his new counsel , but without a letter of authority . The court invited the applicant to submit a letter of authority for his new counsel and to formulate his claim so as to make it capable of judicial enforcement in the event of its being successful . It appears that the case is still pending before ORG .


Violation of Art. 3 (substantive aspect);Violation of Art. 34;Non-pecuniary damage - award

Alvina Gyulumyan;Anatoly Kovler;Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Josep Casadevall

The applicant was born in DATE and previously resided in the town of Togliatti .

On DATE police officers searched the applicant ’s flat and arrested him on suspicion of having committed a number of crimes .

Thereafter the applicant was remanded in custody pending the outcome of the criminal proceedings against him .

The applicant alleged that he had been tortured during the pre - trial investigation .

By a judgment of DATE ORG convicted the applicant and a number of co - accused and sentenced them to various terms of imprisonment . Having regard to various pieces of evidence , including the oral evidence given by a number of witnesses , the court found the applicant guilty of organising and inciting others to murder and bribery and sentenced him to DATE imprisonment .

The applicant , CARDINAL of his co - accused and their counsel appealed against the judgment of DATE .

On DATE ORG examined and partly allowed the defence appeals . The applicant was acquitted of some of the charges and his sentence was reduced to DATE imprisonment .

The parties agree on the following time - line with regard to the applicant ’s pre - trial detention .

The applicant was initially arrested on DATE . He has remained in detention since that date . Pending criminal proceedings against him , he was detained intermittently in GPE , GPE , IZ-CARDINAL/CARDINAL and PERSON .

DATE he was detained in GPE . On DATE the applicant was sent to IZ-CARDINAL/CARDINAL in the city of GPE to take part in the appeal proceedings in his case . On DATE the authorities transferred the applicant back to GPE . The applicant remained there until DATE . On that date he was transferred to prison facility IK-CARDINAL of GPE to serve his sentence of imprisonment . DATE , on DATE , the applicant was transferred from IK-CARDINAL to IK-CARDINAL .

DATE and from DATE to DATE the applicant was detained in cell no . CARDINAL of GPE .

According to the Government , the cell measured QUANTITY ( QUANTITY ) , had a window and contained CARDINAL sleeping places , with CARDINAL inmates being held together with the applicant .

The applicant stated that the cell measured QUANTITY , contained CARDINAL - tier beds designed for CARDINAL detainees and a wooden table for QUANTITY persons . There were DATE detainees in the cell at the relevant time . The prisoners were permitted DATE outdoor exercise which lasted for TIME . It was cold in the cell in DATE ( + CARDINALo C to + DATE C ) and stiflingly hot ( + PERSON to + CARDINALo C ) in DATE .

To support his allegations , the applicant referred to statements of support signed by a number of his fellow inmates who had witnessed the conditions of detention in the same cell or in other cells of GPE ( see paragraphs CARDINAL , DATE , DATE , DATE , DATE , DATE , DATE , DATE and DATE below ) .

The Government disputed the validity and veracity of these statements , submitting that none of the witnesses in question had been detained in the same cell simultaneously with the applicant .

The Government were requested to submit specific information on the number of inmates and beds in pre - trial detention centre GPE from CARDINAL to DATE and from DATE to DATE . They were invited to provide separate information for DATE of the periods in question .

NORP In response the Government submitted that CARDINAL inmates had been held in GPE during the specified periods .

They could not submit copies of official logs and documentation as these documents had been destroyed following the expiry of the time - limit for their storage . From the documents confirming the destruction it follows that the registration logs in respect of the cells for the following CARDINAL periods – DATE to DATE , DATE to DATE and DATE to CARDINAL DATE – were destroyed in DATE . The duty sheet ( постовая ведомость ) for DATE and DATE was destroyed in DATE . The certificates on DATE movements of inmates ( справки о движении заключённых за сутки ) , DATE logs on the presence and movements of inmates ( суточные сводки о наличии и движении заключённых ) and lists of DATE moves between cells ( списки перемещения заключённых из камеры в камеру ) for DATE were destroyed in DATE .

Instead , the ORG submitted the following statements dated DATE from officers GPE and ORG , who had both served in that prison at the relevant time :

“ In accordance with decree no . CARDINAL of ORG dated DATE , the capacity of pre - trial detention centre no . CARDINAL of the town of GPE was CARDINAL inmates in DATE and the overall number of inmates did not exceed that figure .

Cell no . CARDINAL is equipped with CARDINAL sleeping places . In DATE there were CARDINAL inmates in the cell , including [ the applicant ] . ”

The Government also submitted , with reference to official certificates issued by the head of the prison authorities of GPE , that there had been CARDINAL beds for inmates and CARDINAL beds in the hospital unit of facility GPE . They also referred to order no . CARDINAL of ORG dated DATE on , among other things , the capacity of pre - trial detention centres in GPE . The order states specifically that IZ/CARDINAL - CARDINAL had at the relevant time an overall living surface in cells of QUANTITY and was capable of accommodating CARDINAL inmates .

The applicant partly agreed and partly disagreed with the information submitted by the Government . He stated that he may have remembered the exact number of inmates incorrectly and it was likely that in the specified periods there had been CARDINAL inmates with him in the cell . The applicant insisted that the cell was nevertheless overcrowded . He also specified that there had been CARDINAL - tier bunk beds which had provided a total of CARDINAL sleeping places .

He submitted further statements by former inmates PERSON S.V. Sidorchuk and Mr ORG , who both again confirmed their earlier support ( see paragraphs CARDINAL and CARDINAL below ) .

The applicant also submitted an article dated DATE entitled “ SIZO-CARDINAL – The gates of ORG ” ( СИЗО-CARDINAL DATE ворота Самарской ORG ) , from an official newspaper published by ORG for the Execution of Sentences of ORG called Prison and Freedom ( Тюрьма и воля ) ( issue no . CARDINAL - CARDINAL ) , in which it was stated that :

“ ... for DATE the staff of GPE [ GPE ] have been carrying out difficult tasks on the ORG ’s behalf . They do so in difficult conditions . In the first place , they have to cope with overcrowding . Although it has a capacity of CARDINAL persons , CARDINAL inmates are being held here , whilst DATE the number of inmates was in excess of CARDINAL . For continuous periods of time , not only male but also female inmates were being held there . ”

DATE and DATE the applicant was held in IZ-CARDINAL/CARDINAL in the city of GPE .

The applicant submitted that he had been detained in cell no . CARDINAL , measuring QUANTITY and containing CARDINAL bunk beds . During the period DATE the cell held DATE inmates . It was infested with insects and had neither a separate toilet nor proper ventilation .

The Government submitted that the applicant had been detained in cells no . CARDINAL and no . CARDINAL . Cell no . CARDINAL measured QUANTITY , had CARDINAL sleeping berths and contained CARDINAL persons besides the applicant . Cell no . CARDINAL measured QUANTITY , had CARDINAL sleeping places and contained CARDINAL persons besides the applicant . Each of the cells had CARDINAL windows .

The Government submitted handwritten statements by prison inspectors PERSON . and PERSON dated DATE , in which they certified that in DATE there had been CARDINAL persons in cells CARDINAL and CARDINAL .

According to the applicant these CARDINAL cells were similar to each other and measured QUANTITY , with CARDINAL sleeping places each . At all the relevant times there were DATE inmates in these cells . The prisoners had to sleep in turns . The cells were infested with insects , cockroaches and lice . The applicant admitted that some sanitation work had been carried out , but noted that it had been to no avail as the insects from the ORG bedding had re - infested the cells each time .

The Government submitted that the inmates in both prisons had been provided with all the necessary bed linen , including a mattress , a blanket , CARDINAL sheets , a pillowcase and a towel .

In respect of both prisons , the ORG submitted that all prisoners had a QUANTITY - minute shower DATE , that all the cells had been equipped with day - time as well as night - time lighting , that there had been a central heating system in the cells , that the inmates had been provided with food in accordance with the relevant instructions and rules and had had the possibility of receiving food parcels from their relatives , that the prisoners had been provided with medical assistance and had been regularly examined by prison doctors , that the WC area in both prisons had been separated from the living area by a brick wall and that the applicant had never complained about the conditions of his detention at the domestic level .

In his observations on the admissibility of the case the applicant submitted a number of statements from his fellow prisoners .

In an undated statement Mr ORG fully confirmed the applicant ’s account of the conditions of detention , specifically supporting his submissions in respect of , among other things , conditions in GPE .

In a statement dated DATE Mr PERSON contested the ORG ’s factual submissions in respect of GPE . He stated that the ORG ’s presentation of the situation had been wrong , and he fully confirmed the applicant ’s description of cells in GPE .

Mr PERSON is currently at liberty , living in the town of Togliatti .

NORP In an undated statement Mr PERSON , who also spent some time in GPE ( although not simultaneously with the applicant ) , supported the applicant ’s submissions in respect of that prison .

The Government also stated that CARDINAL Mr PERSON , whom they had traced to CARDINAL of the prisons of LOC , had never been detained in the same cell of the same prison in LOC together with the applicant .

It appears that the Mr PERSON referred to by the applicant is a different person from the one referred to by the Government . The former is at liberty and currently resides in the town of Togliatti .

In a statement of CARDINAL March CARDINAL Mr ORG confirmed the applicant ’s account of the conditions of detention in GPE .

The Government also stated that CARDINAL Mr ORG , whom they had traced to CARDINAL of the prisons of LOC , had never been detained in the same cell of the same prison in LOC together with the applicant .

It appears that ORG referred to by the applicant is a different person from the one referred to by the Government . The former is at liberty and currently resides in the town of Togliatti .

At the post - admissibility stage of the proceedings , the applicant submitted a fresh statement by Mr PERSON dated DATE , in which he said that he had been detained in GPE in DATE ( although not in the same cell as the applicant ) and had witnessed the fact that the actual number of beds in cells at that time was twice the figure submitted by the Government . Furthermore , in reality the cells measuring QUANTITY and containing CARDINAL beds held twice as many inmates as there were beds .

In a statement of DATE Mr ORG said that he had spent some time in GPE at approximately the same time as the applicant . Mr PERSON confirmed the applicant ’s account of the conditions of detention .

In response to this statement , the ORG submitted the following information . According to them , the inquiry revealed that PERSON S.V. Sidorchuk had never been detained simultaneously with the applicant . They did not appear to dispute that Mr PERSON had been detained in GPE and had witnessed the conditions of detention in that prison .

Furthermore , the ORG submitted a statement from PERSON PERSON dated DATE , in which he retracted his earlier statement in support of the applicant ’s complaints .

In a statement of CARDINAL DATE submitted by the ORG , PERSON PERSON said that he remained a witness in the case , that he had not withdrawn his statement and that no pressure had been put on him by anyone . He added that he had never been detained at the same time as the applicant , with the result that his account of the conditions of detention concerned only himself and not the applicant .

At the post - admissibility stage of the proceedings , the applicant submitted a fresh statement by Mr ORG dated DATE . Mr PERSON was then at liberty and resided in the town of Togliatti . He again confirmed the truth of the applicant ’s factual allegations in respect of GPE . He also explained that his earlier retraction of the statement of CARDINAL DATE had been due solely to the fact that at the relevant time he had applied for release on parole and that the prison officials had made insinuations and disguised remarks to the effect that his application for release might not be granted unless he retracted .

By letter of DATE the applicant ’s counsel , Ms GPE , informed the ORG that on DATE Mr S.V. Sidorchuk had been apprehended by police officers and had spent TIME in the local department of the interior ( the fact that Mr GPE was there between TIME and TIME is confirmed by an official certificate ) . He was questioned there by an assistant to the prosecutor , PERSON , in connection with his earlier statements in support of the applicant .

Mr S.V. Sidorchuk submitted a written statement dated DATE , according to which he was apprehended at TIME on DATE and was then escorted to the police station , where he waited TIME to be questioned by PERSON . The interview concerned the applicant ’s case before the ORG and the statements made by ORG in that connection . No direct threats or overt intimidation were used , but Mr ORG stated that he had felt pressurised by the ORG in connection with the applicant ’s case .

Mr S.V. Sidorchuk also submitted a copy of an interview record dated DATE and a copy of the summons served on him by police officers on DATE . The interview record shows that he confirmed , among other things , the authenticity of his earlier statement dated DATE . The summons mentioned explicitly that ORG Sidorchuk was invited to an interview as a witness within the meaning of the domestic Code of Criminal Procedure , that he could come with his lawyer if he so wished and that he could be brought to the investigator by force or fined if he ignored the summons .

The Government acknowledged that the interview had taken place ( having submitted copies of official duty rosters and police station logs to that effect as well as explanatory statements by the escorting police officers ) , but denied any pressure or coercion and argued that the aim had been to check the veracity of earlier statements made by Mr S.V. Sidorchuk .

In a statement of DATE Mr PERSON supported the applicant ’s submissions in so far as they concerned cell no . CARDINAL in GPE . It appears that Mr PERSON was detained in that cell in DATE at the same time as the applicant and that there were CARDINAL detainees and CARDINAL beds at that time .

The Government also stated that Mr PERSON had never been detained in the same cell of the same prison in LOC together with the applicant . According to them , he had been detained in a different cell of GPE from DATE until an unspecified date .

The following CARDINAL prisoners who were serving their sentence in PERSON along with the applicant also supported his application : PERSON PERSON ( in respect of GPE ) , Mr FAC ( in respect of GPE ) , Mr GPE ( in respect of GPE ) , PERSON D.V. PERSON ( in respect of the conditions of detention in GPE ) , Mr PERSON ( all complaints ) , Mr PERSON ( all complaints ) , Mr PERSON ( all complaints ) , Mr PERSON ( all complaints ) , PERSON PERSON ( all complaints ) , PERSON ( in respect of IZ-CARDINAL/CARDINAL in DATE ) , Mr PERSON ( all complaints ) , PERSON ( all complaints ) , PERSON ( all complaints ) , Mr ORG ( all complaints ) , Mr PERSON ( all complaints ) , Mr PERSON ( all complaints ) , Mr PERSON ( all complaints ) , Mr PERSON ( in respect of GPE ) , Mr PERSON ( all complaints ) .

In a statement of DATE Mr PERSON mentioned that he had been detained from DATE in GPE in overcrowded cells . According to PERSON , the ORG ’s factual submissions could not reflect the true conditions in GPE any DATE .

The Government objected to this statement , as the applicant and PERSON PERSON had never been detained in GPE simultaneously . The Government did not appear to dispute that PERSON had witnessed the conditions of detention in GPE from DATE .

In a statement of CARDINAL DATE Mr Slivin said that he had been detained in GPE from DATE , that he personally had had no complaints about the conditions of detention there and that he had promised no support to the applicant . PERSON confirmed that he had previously supported the applicant only in so far as his own personal experience was concerned .

In a statement of CARDINAL DATE submitted by the ORG , PERSON PERSON stated that he had never supported the application and described the applicant ’s allegation concerning pressure by the prison authorities as unfounded . He also wrote that “ all references to him ” were “ without basis ” .

In a statement of CARDINAL DATE Mr PERSON confirmed that in DATE and DATE the conditions of detention in GPE had been similar to the applicant ’s description and that in DATE some renovation work had been carried out by the prison authorities .

The Government also stated that Mr PERSON had never been detained in the same cell of the same prison in LOC together with the applicant . They conceded that Mr PERSON had been detained in GPE from DATE .

In a statement of CARDINAL DATE Mr I.V. PERSON said that the prisons in question had suffered from overcrowding both in DATE and in DATE .

The Government questioned this statement , submitting that PERSON I.V. ORG had never been detained simultaneously with the applicant . They did not appear to dispute that Mr ORG had been detained in IZCARDINAL/CARDINAL in DATE and DATE .

The Government also submitted a statement by Mr I.V. PERSON dated DATE in which he withdrew his support in respect of the applicant ’s grievances .

DATE . The applicant submitted a number of further statements from his fellow inmates in support of his application , along with his observations on the merits of the case .

In handwritten statements dated DATE one S.V GPE and one PERSON . PERSON , who had served their sentences along with the applicant in IK-CARDINAL , confirmed the applicant ’s description of the cells in IZCARDINAL/CARDINAL , including the fact that they had been equipped with CARDINAL - tier bunk beds , and the overcrowding in all of the cells in which he had been detained . Mr PERSON had not been detained in the same cells as the applicant , but he stated that the whole establishment had been overcrowded to twice its capacity . He also confirmed the applicant ’s version of events in respect of the abortive visit by the applicant ’s wife on DATE ( see paragraphs CARDINAL - CARDINAL below ) .

NORP By letter of CARDINAL September CARDINAL the applicant informed the ORG that he had learnt that Mr PERSON and PERSON , under coercion from the authorities , had signed a retraction of their previous statements .

In the same letter he also alleged that the authorities had put “ silent pressure ” on him by refusing him access to work corresponding to his skills and preferences , that other prisoners had approached him with disguised threats , that there had been a general tightening of the prison regime “ with reference to the applicant ’s complaints to the ORG ” and that the authorities had sought to create a social vacuum around the applicant .

The Government in their letter of CARDINAL DATE gave a detailed response to the applicant ’s complaints and flatly denied his allegations , including those concerning the alleged pressure and tightening of the prison regime , claiming them to be unfounded . According to them , no pressure had been put on either Mr PERSON or PERSON .

The Government further submitted statements dated DATE by the applicant ’s fellow prisoners Mr PERSON , Mr PERSON , Mr PERSON and Mr V.A. GPE , and statements from the applicant ’s “ good friends ” Mr PERSON , Mr ORG , ORG ORG , Mr PERSON and Mr PERSON , who all confirmed that no pressure had been put on the applicant during his detention , that there had been no tightening of the prison regime or that at least the applicant had never spoken to them on the subject .

Similar statements had been made by a foreman of the applicant ’s prison group , Mr PERSON , as well as by prison staff including doctors and medical assistants .

On DATE the applicant too had made a statement to the prison authorities to the effect that no pressure had been put on him since his transfer to prison IK-CARDINAL on DATE .

DATE . In response , the applicant submitted a handwritten statement by PERSON PERSON dated DATE ( see paragraph CARDINAL above ) , explaining that the prison authorities had been putting pressure on him and other prisoners in connection with the applicant ’s case and that the statement dated DATE had been written as dictated by the head of prison IK-CARDINAL .

The applicant also submitted that the pressure placed on him by the authorities had been demonstrated by his allegedly unjustified transfer to prison facility IK-CARDINAL in DATE as well as the refusal of permission for a visit by his wife in DATE .

The Government commented on these allegations by stating the following .

In respect of the applicant ’s transfer from IK-CARDINAL to IK-CARDINAL on DATE , they submitted an official certificate issued by ORG , head of ORG of ORG in GPE . The certificate states as follows :

“ In accordance with the legislation in force on the execution of sentences , individuals sentenced to imprisonment for the first time are held separately from those who have served a previous sentence of imprisonment .

With a view to executing this legislative provision , [ IK-CARDINAL ] was reorganised into a strict - regime correctional facility for dangerous recidivists , whilst [ IK-CARDINAL ] was reorganised into a strict - regime correctional facility for persons sentenced to imprisonment for the first time . In view of this reform ... , [ the applicant ] , who had not been sentenced to imprisonment previously , was transferred along with other convicted prisoners ( total number of CARDINAL ) on DATE from [ IK-CARDINAL ] to [ IK-CARDINAL ] .

The above - mentioned establishments are situated in the same area , within QUANTITY of each other . ”

In his observations on the merits of the case , the applicant stated that this explanation was inadequate and simply untrue . He submitted that his transfer had been arbitrary , since some of the prisoners who would otherwise have qualified for such a transfer remained for some reason in ORG ( the applicant cited the following names : PERSON , PERSON , Ya . PERSON , PERSON and PERSON ) . At the same time , some fellow prisoners in IK-CARDINAL had not been serving prison terms for the first time and hence , according to the Government ’s logic , should not have remained there . The applicant also pointed out that the Government had obtained the retraction of statements by the witnesses ORG , ORG and PERSON on DATE , which was DATE after the applicant ’s transfer to IK-CARDINAL on DATE .

As regards the visit of the applicant ’s wife , the ORG submitted that on DATE the applicant had asked for leave to see his wife , that on the same date leave had been granted ( a copy of the applicant ’s handwritten request with the prison officer ’s stamp of approval on it was submitted ) , that the prison authority had made appropriate arrangements for the visit and that the visit had not taken place because the applicant ’s wife failed to appear ( handwritten reports by the prison officers concerned were submitted by the Government along with their observations on the merits of the case ) .

The applicant stated that his wife had wished to visit him on that date not in her private capacity but as his legal representative , with a view to collecting various documents for the purposes of submitting them to ORG Permission for the visit was refused ostensibly because the applicant ’s wife was not a lawyer , but merely a legal representative . At the same time , her visit in a private capacity had indeed been authorised but had she agreed to it , their communication would not have been covered by client - lawyer confidentiality rules and the applicant would not have been able to pass on to her his confidential documents , including the statements of his co - detainees . On DATE the applicant ’s wife had to hire a local lawyer , PERSON , who later visited the applicant and successfully collected the documents in question . The applicant also joined his wife ’s written statement dated DATE , confirming the course of events as described , and a copy of the order authorising PERSON to represent the applicant .

Rule DATE provided that all suspects and accused persons in detention had to be given , among other things : a sleeping place , bedding , including CARDINAL mattress , a pillow and one blanket ; bed linen , including CARDINAL sheets and a pillow case ; a towel ; tableware and cutlery , including a bowl , a mug and a spoon ; and seasonal clothes ( if the inmate had no clothes of his own ) .

Rule CARDINAL stated that cells in pre - trial detention centres were to be equipped , among other things , with a table and benches with a number of seating places corresponding to the number of inmates , sanitation facilities , tap water and lamps to provide day - time and night - time illumination .

Rule CARDINAL provided that prisoners were to be given CARDINAL warm meals a day , in accordance with the norms laid down by the Government of GPE .

Under Rule CARDINAL inmates had the right to have a shower at least once DATE for TIME . They were to receive fresh linen after taking their shower .

Rule CARDINAL provided that inmates could be visited by their lawyer , family members or other persons , with the written permission of an investigator or an investigative body . The number of visits was limited to CARDINAL per month .

Order No . CARDINAL of ORG for the Execution of Sentences of DATE deals with implementation of the “ ORG - trial detention centres DATE ” programme .

NORP The programme is aimed at improving the functioning of pre - trial detention centres so as to ensure their compliance with the requirements of NORP legislation . It expressly acknowledges the issue of overcrowding in pre - trial detention centres and seeks to reduce and stabilise the number of detainees in order to resolve the problem .

NORP The programme mentions pre - trial detention centre IZ-CARDINAL/CARDINAL amongst the ones affected . In particular , the programme states that , on DATE , the detention centre had a capacity of CARDINAL inmates and in reality housed CARDINAL detainees , in other words , PERCENT more than the permitted number .

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

“ CARDINAL . Overcrowding is an issue of direct relevance to the ORG ’s mandate . All the services and activities within a prison will be adversely affected if it is required to cater for more prisoners than it was designed to accommodate ; the overall quality of life in the establishment will be lowered , perhaps signiﬁcantly . Moreover , the level of overcrowding in a prison , or in a particular part of it , might be such as to be in itself inhuman or degrading from a physical standpoint .

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

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

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

The ORG would add that it is particularly concerned when it ﬁnds a combination of overcrowding , poor regime activities and inadequate access to toilet / washing facilities in the same establishment . The cumulative effect of such conditions can prove extremely detrimental to prisoners .

It is also very important for prisoners to maintain reasonably good contact with the outside world . Above all , a prisoner must be given the means of safeguarding his relationships with his family and close friends . The guiding principle should be the promotion of contact with the outside world ; any limitations upon such contact should be based exclusively on security concerns of an appreciable nature or resource considerations ... ”

“ CARDINAL . As the ORG pointed out in DATE ORG , prison overcrowding is an issue of direct relevance to the ORG ’s mandate ( cf . ORG ( CARDINAL ) CARDINAL , paragraph CARDINAL ) . An overcrowded prison entails cramped and unhygienic accommodation ; a constant lack of privacy ( even when performing such basic tasks as using a sanitary facility ) ; reduced out - of - cell activities , due to demand outstripping the staff and facilities available ; overburdened health - care services ; increased tension and hence more violence between prisoners and between prisoners and staff . This list is far from exhaustive .

The ORG has been led to conclude on CARDINAL occasion that the adverse effects of overcrowding have resulted in inhuman and degrading conditions of detention ... ”

“ CARDINAL . The phenomenon of prison overcrowding continues to blight penitentiary systems across LOC and seriously undermines attempts to improve conditions of detention . The negative effects of prison overcrowding have already been highlighted in previous ORG ...

In a number of countries visited by the ORG , particularly in central and eastern LOC , inmate accommodation often consists of large capacity dormitories which contain all or most of the facilities used by prisoners on a DATE basis , such as sleeping and living areas as well as sanitary facilities . The ORG has objections to the very principle of such accommodation arrangements in closed prisons and those objections are reinforced when , as is frequently the case , the dormitories in question are found to hold prisoners under extremely cramped and insalubrious conditions ... Large - capacity dormitories inevitably imply a lack of privacy for prisoners in their everyday lives ... All these problems are exacerbated when the numbers held go beyond a reasonable occupancy level ; further , in such a situation the excessive burden on communal facilities such as washbasins or lavatories and the insufﬁcient ventilation for so many persons will often lead to deplorable conditions .

The ORG frequently encounters devices , such as metal shutters , slats , or plates ﬁtted to cell windows , which deprive prisoners of access to natural light and prevent fresh air from entering the accommodation . They are a particularly common feature of establishments holding pre - trial prisoners . The ORG fully accepts that speciﬁc security measures designed to prevent the risk of collusion and/or criminal activities may well be required in respect of certain prisoners ... [ E]ven when such measures are required , they should never involve depriving the prisoners concerned of natural light and fresh air . The latter are basic elements of life which every prisoner is entitled to enjoy ... ”