Violation of Art. 3;Non-pecuniary damage - financial award

The applicant was born in DATE and lives in ORG .

On DATE the ORG sentenced the applicant to DATE imprisonment for armed robbery carried out as part of a gang , false imprisonment and fraud . He was detained in FAC ( département of FAC ) .

In DATE his health deteriorated .

On DATE a doctor from ORG ( unité de consultation et de soins ambulatoires – “ the ORG ” ) at FAC issued a medical certificate , which stated :

“ This patient has a history of serious [ medical ] problems ...

He was recently found to have B - cell chronic lymphocytic leukaemia , with some evidence of tumour ...

The leukaemia is currently not accompanied by any alteration of the other cell lines ; in particular , there is no sign of anaemia or thrombocytopenia .

However , bilateral axillary adenopathy is present , predominantly on the right - hand side .

This certificate has been issued at the patient 's request and handed to him in connection with an application for parole on medical grounds . ”

On DATE a further medical report stated :

“ This patient has chronic lymphocytic leukaemia , which has caused severe asthenia . Furthermore , there are signs of orthopaedic disorders as a result of an injury to the left knee and the left ankle causing osteoarthritis of the left patellofemoral and tibiofemoral joints and making it painful for him to remain for long periods in a seated position with his legs bent .

In addition , on account of the orthopaedic disorders observed in his left lower limb , the patient has to use a walking stick to move about .

His condition is not compatible with the use of restraints on his lower limbs . ”

On DATE the ORG doctor advised against applying restraints to the applicant 's lower limbs .

The applicant applied to the NORP President for a pardon on medical grounds , but his application was refused on DATE .

On DATE ORG ( IPW ) issued the following press release :

On DATE the Minister of ORG refused applications for a pardon lodged on behalf of a prisoner suffering from a rapidly progressive disease .

DATE PERSON is currently in FAC . He was diagnosed with chronic lymphocytic leukaemia in DATE . PERSON has served CARDINAL of his sentence . If remissions of sentence are taken into account , he will be due for release in DATE . On DATE a doctor from the ORG at FAC drew up a certificate attesting that the disease was transforming into lymphoma and that an extended course of cancer treatment involving chemotherapy was therefore necessary . This prisoner is taken to hospital once DATE and has to endure his illness while in detention . He is allowed CARDINAL visit a week from his relatives , in accordance with the prison 's rules .

His doctor and various associations applied for a pardon on his behalf . ORG , which centralises such applications and takes an initial decision , did not see fit to refer his case to ORG .

IPW wishes to stress that ' no one shall be subjected to torture or to inhuman or degrading treatment or punishment ' ( LAW ) . ”

On DATE the ORG doctor drew up a further medical certificate , which stated :

“ This patient has chronic lymphocytic leukaemia , which was diagnosed in DATE and is currently transforming into lymphoma .

The lymphoma was diagnosed in DATE during a check - up at the haematology department at ORG in GPE .

Mr PERSON 's condition currently requires him to undergo cancer treatment in the form of chemotherapy sessions as a hospital outpatient DATE .

At the moment , he is receiving chemotherapy at ORG medical and surgical centre . The patient 's haematological condition will need to be reassessed in DATE once he has finished the chemotherapy he is currently receiving .

It is subsequently envisaged that he will begin oral chemotherapy , depending on the reassessment to be carried out at ORG .

The compatibility of his condition with his continued detention remains to be determined by an expert . ”

On DATE the applicant wrote to tell the prison governor about a chemotherapy session that had taken place at ORG on DATE :

“ ... After TIME and TIME , the force of my drip was causing me too much pain . My suffering was so great that I had to lower the speed of the drip . That action was not appreciated by the warder in charge of my escort , Mr T. , who came into the room red with anger , yelling and screaming . He told me that if the nurse had turned the drip on full , then I was not to touch it . As he put it , ' he and the other member of the escort were not going to spend all day at the hospital ' .

I was surprised at how aggressive they were being towards me , and I wanted to pull out the drip . The pain was too intense ; it was making me suffer and was becoming unbearable ... The intervention of the doctor and nurse ... persuaded me to end the chemotherapy session . After the doctor had gone , the chief escort officer told me that the matter would be dealt with when we got back to the prison .

At the end of the chemotherapy session , I felt worse than ever as the injection had made me feel much weaker ... I was duly handcuffed and dragged with brute force along the hospital corridors on a chain which the warder was holding , no doubt as a form of retribution . When we got back that TIME , I was handcuffed in the usual way without force .

I am being treated for leukaemia , a cancer of the blood which is nothing like a mere case of the flu ! In my case , unfortunately , there is no possible cure ; the disease I have caught here at FAC is incurable .

I am therefore entitled to conclude that the prison staff who escort me to the hospital regularly ask the nurses to make sure that I am injected as quickly as possible so that they do not have to spend DATE waiting around for me .

As there is currently no way of solving the problem on an administrative level , I shall have to give up the chemotherapy sessions for the time being . I am not refusing the treatment , but the conditions in which I am receiving it are not satisfactory ... This has been going on for DATE and I can not stand it any longer . My physical condition can not allow it and my morale is getting lower DATE . I am dying , but I would like to die peacefully and not in an atmosphere of conflict . ”

Following a further application for a pardon on medical grounds , ORG instructed an expert at ORG to assess the applicant 's state of health , the treatment he required and the manner in which it should be administered , the likelihood of any changes ( for example , regarding life expectancy ) , and whether his condition and the forms of treatment in progress or envisaged were compatible with detention in a specialist unit . The expert 's report , completed on DATE , read as follows :

“ ... Recent developments

According to the certificate of CARDINAL DATE , Mr GPE has a form of chronic leukaemia which was diagnosed in DATE and is currently transforming into lymphoma ...

His condition has necessitated an intensive course of chemotherapy administered following the insertion of a ' portacath ' .

His condition has also required him to be taken to hospital in a non - emergency ambulance for chemotherapy sessions ( at the outpatient department of ORG medical and surgical centre ) , initially DATE and subsequently DATE ...

Clinical condition on the date of the examination

Functional symptoms complained of by the patient :

– permanent asthenia and fatigue ;

– waking up in pain during TIME ;

– muscle fatigue and breathlessness ;

– alleged psychological impact of stress on his life expectancy and deterioration of his health ( this condition has led to his being prescribed a course of antidepressants , which he is currently taking ) ...

It should be noted that these functional symptoms are to a large extent attributable to the chemotherapy he has been undergoing ...

Particular mention should be made of a problem relating to the escort and supervision arrangements during visits to hospital for chemotherapy sessions . Indeed , since DATE the patient has not consented to treatment .

Clinical examination

It should be noted that , according to the documents produced , Mr PERSON 's current degree of disablement was assessed at PERCENT by the LAW [ ORG ] in a decision of DATE , and he was awarded a disabled adult 's allowance for the period from DATE to DATE .

Conclusion

By the date of the examination the applicant 's health had deteriorated as a result of the progression of his haematological disorder , diagnosed in DATE as leukaemia ...

Mr PERSON is currently undergoing intensive chemotherapy as an outpatient at ORG , where he is taken for treatment DATE by medical transport ( a non - emergency ambulance ) .

The cancer treatment , ... which is already scarcely compatible with imprisonment , is at present causing problems as a result of the position he has adopted recently in not consenting to treatment in the conditions in which he is currently being detained ( this has lasted since DATE , the date scheduled for his treatment ) .

His not consenting to treatment , in spite of all the information received from the ORG medical team in ORG , is likely to bring about the rapid progression of the disorder observed recently and a reduction in his life expectancy .

Accordingly , he should be looked after in a specialist unit . ”

On DATE the applicant was transferred as a matter of urgency to ORG ( so that he would be nearer to ORG ) and given a cell of his own .

On DATE the applicant applied to the département of GPE - Garonne 's ORG for acknowledgment of a vaccination - related accident , claiming that he had contracted cancer as a result of a hepatitis - B vaccination . On DATE he received a reply from ORG of ORG and ORG informing him that strict liability could not be imposed on the ORG except for damage sustained as a result of the compulsory vaccinations provided for in LAW . Hepatitis - B vaccinations were compulsory only for certain occupational groups exposed to a risk of contamination , and the applicant did not belong to any such group .

On DATE the applicant was notified of a reply by the Regional Director of ORG to his complaints concerning the application of LAW ( “ the ORG ” ) on the use of handcuffs or restraints ( see “ Relevant domestic law and practice ” below ) :

“ ... The provisions of the Article do not establish an absolute prohibition on the use of handcuffs or restraints and do not expressly refer to the detainee 's health . They leave the matter to the discretion of those responsible for laying down , and enforcing , security measures : gendarmes , police officers or prison warders .

Moreover , Article D CARDINAL ORG provides that handcuffs or restraints are to be used solely in connection with ' precautions against absconding ' , except where a person is being brought before a judicial authority . Where a long sentence is being served for criminal acts causing bodily harm , the appropriate measures are applied . ”

On DATE the Minister of ORG refused an application for a pardon lodged on the applicant 's behalf by the ORG des droits de l'homme ( Human Rights League ) .

On DATE the applicant received a letter from the doctor who had treated him in ORG :

“ ... As regards your condition , there does seem to be a change taking place at the moment ... I think it is always worth fighting an illness , whatever it may be ; even if there is no possible cure , a remission in the disease is still possible , especially as PERSON is offering you a new course of chemotherapy , which I would strongly advise you to agree to ... ”

A medical certificate issued on DATE by a doctor from the haematology department at ORG reads as follows :

“ Mr PERSON has been treated by our department since DATE for chronic lymphocytic leukaemia , initially with tonsillar hypertrophy on both sides causing dysphagia , and substantial axillary adenopathy on the right - hand side ( QUANTITY in diameter ) .

He was initially given chemotherapy once DATE using the COP protocol , then once DATE with ORG , and subsequently with chlorambucil .

The results obtained were satisfactory , but in DATE we noticed a renewed increase in the size of the right axillary adenopathy and therefore resumed DATE chemotherapy using the ORG protocol .

A biopsy of the lymph nodes in DATE revealed the presence of Hodgkin 's disease . CARDINAL cycles of chemotherapy using the LOC protocol are therefore envisaged , followed by additional radiotherapy . ”

NORP In an order of CARDINAL DATE the judge responsible for the execution of sentences at the LOC tribunal de grande instance released the applicant on parole until DATE , subject to an obligation to receive medical treatment or care :

“ Admissibility

Mr Mouisel exercises parental responsibility over his daughter , born on DATE ... , and no ancillary penalties have been imposed on him entailing the forfeiture of that right .

Article CARDINAL - CARDINAL ORG empowers the judge responsible for the execution of sentences to decide cases concerning prisoners who have DATE of their sentence to serve and who exercise parental responsibility over a child under DATE .

Merits

It appears from the medical certificates adduced in evidence ( dated DATE and DATE and DATE ) that the applicant 's condition has become incompatible with his continued detention , on account of the medical care he requires during regular visits to hospital .

It is therefore appropriate , notwithstanding his criminal record , to release the applicant on parole , subject to his staying at his wife 's home ( see the declaration of DATE ) and receiving treatment in accordance with a medical protocol at ORG . ... ”

French National Assembly – Report drawn up on behalf of ORG on the situation in GPE 's prisons ( vol . I , p. CARDINAL , DATE )

Extract from Part V ( “ Controlling the prison population : an essential goal ” ) :

“ A. Stemming the influx

( CARDINAL ) Limiting the imprisonment of certain groups

( e ) Sick or elderly prisoners

The increasing number of elderly prisoners has already been noted ; at DATE there were CARDINAL prisoners over DATE , a figure which has almost doubled in DATE . This upsurge is linked , in particular , to the rise in the number of convictions for sexual harassment , rape and incest .

The inadequate provision of care for those prisoners and , more broadly , for prisoners who are seriously ill or dependent has also been discussed .

The presence of such persons in prison raises the very real issue of their dying there . ORG and other inmates are not prepared for that eventuality and no proper arrangements are in place for assisting prisoners in their final moments . Dying in prison means experiencing a feeling of hopeless solitude . It amounts to an admission of failure and waste for families unable to be present as the end approaches .

All prison staff try , wherever possible , to transfer inmates to hospital in DATE ; however , this again raises the issue of escort officers and the difficulty of calling on the services of the police or the gendarmerie . Mention has also frequently been made of the attitude of doctors , who all too often send patients back to prison once the alert is over , just as easily as though they were returning home . CARDINAL case in GPE where a doctor sent the patient back to prison only for him to die DATE seems to have had a particularly profound effect on prison staff .

There is no dignity in dying in prison . The question therefore arises whether the sick or the elderly should continue to be detained . Currently , the President alone is empowered to grant a pardon on medical grounds . However , it appears that this measure is recommended sparingly and granted even more cautiously ; in DATE such applications were referred to the President and pardons were granted in CARDINAL cases , while in DATE CARDINAL out of CARDINAL proposals resulted in a pardon .

Indeed , a review of the procedure for granting pardons on medical grounds would appear necessary ; there is no reason why such decisions should continue to be left to the President . Responsibility for the procedure should be vested in the judge for the execution of sentences , who could base his decision on expert medical assessments in which it was concluded that the prisoner was suffering from a life - threatening illness . ”

The Code of Criminal Procedure ( ORG )

( i ) Since the PERSON of DATE came into force the provision of treatment for prisoners has been the responsibility of the public hospital service . Accordingly , prisoners receive treatment from medical units that are set up within prisons and are directly attached to the nearest public hospital ( Article D CARDINAL ) .

( ii ) The ORG contains the following provisions on parole :

“ At each prison the judge responsible for the execution of sentences shall determine the principal terms of detention for each convicted person . Subject to the limits and conditions prescribed by law , he shall grant ... parole ... Except in urgent cases , he shall give his decision after hearing the opinion of ORG ...

( Law no . DATE of DATE , applicable from DATE ) “ Measures entailing ... parole shall be granted , deferred , refused , withdrawn or revoked in a reasoned decision by the judge responsible for the execution of sentences , who shall examine the case of his own motion , at the request of the convicted person or on an application by the public prosecutor ... ”

( Law no . DATE of DATE ) “ Parole is designed to encourage the rehabilitation of convicted prisoners and prevent them from reoffending . Convicted persons serving CARDINAL or more prison sentences may be granted parole if they have made serious efforts to readjust to society , particularly if they can show that they have engaged in occupational activities , or regularly attended an education or vocational training course , or have taken part in a work - experience scheme , or had a temporary contract of employment with a view to their social integration , or that their presence is essential to the life of their family , or that they have to undergo treatment ... ”

( Law no CARDINAL - CARDINAL of DATE ) “ Subject to LAW , parole may be granted if the length of the sentence already served by the prisoner is at least equal to that remaining to be served . However , reoffenders ... may only be granted parole if the length of the sentence already served is at least double that remaining to be served . ... ”

( Law no . DATE of DATE ) “ Parole may be granted to any person who has been sentenced to a term of imprisonment of DATE or less , or who has DATE or less of his or her sentence to serve , where the person exercises parental responsibility over a child under DATE who habitually lives with him or her .

“ Where a prison sentence of DATE or less has been imposed , or where , regardless of the length of the sentence initially imposed , the portion remaining to be served amounts to DATE or less , parole shall be granted by the judge responsible for the execution of sentences , in the manner prescribed in LAW .

In other cases , parole shall be granted by the regional parole court , in the manner prescribed in LAW .

A circular of DATE ( CRIM CARDINAL FCARDINAL ) , outlining the provisions of the PERSON of DATE on reinforcing the presumption of innocence and victims ' rights in relation to the enforcement of sentences , states :

“ Under the new LAW ... , parole may be granted to any person who has been sentenced to a term of imprisonment of DATE or less , or who has DATE or less of a sentence to serve , where that person exercises parental responsibility over a child under DATE who habitually lives with him or her . ...

Those provisions do not invalidate the general requirement in Article CARDINAL whereby the judge responsible for the execution of sentences must assess whether serious efforts have been made to readjust to society . They do not therefore imply that the granting of parole for which they provide is systematic .

However , depending on the length of the initial sentence , they may allow prisoners to be released at an earlier stage than would be possible under that Article . ... ”

The provisions in question increase the powers of the judge responsible for the execution of sentences with regard to parole and are designed to counter long - standing criticism of the fact that NORP law previously made no provision for the early release of terminally ill prisoners , other than by means of an application for a pardon on medical grounds at the discretion of the NORP President ( Articles CARDINAL and CARDINAL of the LAW ) .

( iii ) A law of DATE on patients ' rights and the quality of the health system supplements the ORG and adds a new LAW providing for the possibility of suspending a sentence “ regardless of the nature of the sentence or the portion remaining to be served ... where it has been established that the prisoner has a life - threatening illness or that his or her state of health is incompatible in the long term with continued detention , save in cases where persons detained in a psychiatric institution are admitted to hospital ” . The judge may direct that the sentence be suspended indefinitely . He must arrange for CARDINAL expert assessments in order to determine whether a sentence should be suspended or whether a suspension should be lifted .

( iv ) Article CARDINAL ORG provides :

“ No one may be forced to wear handcuffs or restraints unless he is considered either a danger to others or to himself , or likely to attempt to abscond . ”

A general circular on that LAW ) states :

Except in special circumstances , persons being detained by the police after voluntarily surrendering to custody , persons whose mobility is impaired on account of their age or health and persons sentenced to only a short term of imprisonment are unlikely to pose the dangers referred to in the LAW . ... ”

Report to the Government of GPE on the visit to GPE by ORG for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment ( ORG ) from CARDINAL to CARDINAL DATE

Although the quality of the material conditions of detention at FAC was found to be high ( see paragraph CARDINAL of the report ) , transfers to outside hospitals continued to cause the ORG concern during its prison visits :

“ In spite of the recommendations made by the ORG in paragraph CARDINAL of its report on the DATE visit , the delegation that carried out the visit in DATE has again obtained information ( especially in PERSON ) suggesting that the conditions in which detainees are transferred to hospital and examined and treated there are in breach of medical ethics : patients are systematically handcuffed with force , regardless of their state of health or age , are examined and treated in the presence of law - enforcement officials , and are physically attached to their hospital beds .

In this connection , the NORP authorities have pointed out that they have drawn up a draft circular to promote the application of the principle that handcuffs or restraints are to be used in exceptional cases only .

The ORG recommends that the adoption of the circular be expedited and that the document contain express reference to the recommendations set out in paragraph CARDINAL of its report on the DATE visit , namely :

– that all medical check - ups , examinations and treatment in public hospitals take place out of the hearing and – unless the medical staff concerned request otherwise in a given case DATE out of the sight of law - enforcement officials ;

– that the practice of attaching prisoners to their hospital beds for security reasons be prohibited . ...

The ORG calls upon the NORP authorities to complete the implementation of the national hospitalisation scheme as soon as possible in order to ensure that , throughout the country , prisoners are provided with hospital treatment in conditions that comply with medical ethics and respect human dignity . ” ( paragraph CARDINAL of the report )

Third General Report on the ORG 's activities covering DATE ( Section III – Health care services in prisons )

“ ( iv ) prisoners unsuited for continued detention

Typical examples of this kind of prisoner are those who are the subject of a short - term fatal prognosis , who are suffering from a serious disease which can not be properly treated in prison conditions , who are severely handicapped or of advanced age . The continued detention of such persons in a prison environment can create an intolerable situation . In cases of this type , it lies with the prison doctor to draw up a report for the responsible authority , with a view to suitable alternative arrangements being made . ”

Recommendation No . R ( CARDINAL ) CARDINAL of ORG concerning the ethical and organisational aspects of health care in prison ( adopted on DATE )

“ C. Persons unsuited to continued detention : serious physical handicap , advanced age , short term fatal prognosis

Prisoners with serious physical handicaps and those of advanced age should be accommodated in such a way as to allow as normal a life as possible and should not be segregated from the general prison population . Structural alterations should be effected to assist the wheelchair - bound and handicapped on lines similar to those in the outside environment .

The decision as to when patients subject to short term fatal prognosis should be transferred to outside hospital units should be taken on medical grounds . While awaiting such transfer , these patients should receive optimum nursing care during the terminal phase of their illness within the prison health care centre . In such cases provision should be made for periodic respite care in an outside hospice . The possibility of a pardon for medical reasons or early release should be examined . ”

Recommendation Rec(CARDINAL)CARDINAL of ORG to the member States on improving the implementation of the NORP rules on community sanctions and measures

Appendix CARDINAL : guiding principles for achieving a wider and more effective use of community sanctions and measures :

“ Legislation

Provision should be made for a sufficient number of suitably varied community sanctions and measures of which the following are examples :

– suspension of the enforcement of a sentence to imprisonment with imposed conditions ;


André Potocki;Angelika Nußberger;Ann Power-Forde;Dean Spielmann;Karel Jungwiert;Paul Lemmens

NORP The applicant , Mr PERSON , is a NORP national who was born in DATE . He is represented before the ORG by Ms K. ORG , a lawyer practising in GPE . The respondent Government are represented by their Agent , Mr PERSON , from ORG .

NORP The applicant lived in GPE , GPE from DATE onwards . He lived there with his wife and QUANTITY children , who are all NORP nationals . The children are attending school there .

In DATE he was extradited from GPE to GPE for a criminal prosecution . On DATE ORG found the applicant guilty of attempted murder and sentenced him to CARDINAL years’ imprisonment . He is serving his prison sentence in FAC in GPE .

The applicant has been trying to be transferred to a NORP prison so he can be closer to his family who , he states , are living in impoverished conditions and do not have means to travel to GPE . Also , his son ’s mental health has been damaged by his not being able to see his father .

He sent several requests in that regard to ORG . On DATE , CARDINAL DATE and CARDINAL May and CARDINAL DATE the Ministry replied by letter , giving negative responses . It firstly reasoned that the applicant was a NORP national and thus it would not be possible to transfer him to GPE . In another letter , on DATE , the ORG reasoned that NORP law allowed such a transfer only exceptionally and that the fact that the applicant ’s family was living in GPE was not such an exceptional circumstance .

The applicant is in contact with his family by regular telephone calls , allowed for TIME once a week , and unrestricted written correspondence . The family has not been able to visit him yet , according to the applicant , mainly because of the distance , poor health and lack of funds .

On an unspecified date the applicant applied for NORP nationality and simultaneous revocation of his NORP nationality . It seems that these proceedings are pending .

The applicant approached various other bodies , including the ombudsman , the ORG and numerous non - governmental organisations , about his situation .

Under section CARDINAL(CARDINAL)(a ) , a constitutional appeal may be lodged by any natural or legal person who claims that a final decision given in proceedings to which he or she was a party , or a measure or any other action taken by a public authority , has infringed his or her fundamental rights or freedoms as guaranteed by a constitutional law .

Section CARDINAL(CARDINAL ) provides that when ORG upholds a constitutional appeal it must either set aside the impugned decision by a public authority or , where the infringement of a right guaranteed by LAW is the result of an interference other than a decision , forbid the authority concerned to continue to infringe the right and order it to reestablish the status quo if that is possible .

In a judgment no . III . ÚS CARDINAL of CARDINAL DATE it defined an “ other action taken by a public authority ” in section DATE of the Act on ORG largely as a CARDINAL - off , illegal and unconstitutional attack by such an authority on constitutionally guaranteed fundamental rights ( freedoms ) that , at the time of the attack , posed a continuous threat to an existing legal situation , while such an attack itself was not an expression ( result ) of a decision - making power of the authority , and as such fell outside the usual review proceedings .

NORP In a decision no . I. ÚS CARDINAL of DATE it held that a primary feature of “ other action taken by a public authority ” in section CARDINAL of LAW must be that the interference was still going on at the time of the decision of ORG .

In its judgment no . III . ÚS CARDINAL/CARDINAL of DATE it held that for admissibility of a constitutional appeal under section CARDINAL(CARDINAL)(a ) it was immaterial how the challenged act of an administrative authority had been labelled . What mattered was only if the administrative authority had by that act interfered with an individual ’s legal standing in an authoritative and possibly final way . The substantive content of an act was always decisive , rather than its formal designation .

In its judgment no . PERSON . ÚS CARDINAL/CARDINAL of CARDINAL June CARDINAL it held that the ratified and promulgated international agreements on human rights and fundamental freedoms , including the Convention , were part of NORP constitutional law .


Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä

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

The applicant ’s personal circumstances

The applicant served a sentence of CARDINAL years’ imprisonment for offences relating to the importation of drugs , from which he secured early release in DATE . The applicant has a long - term girlfriend who has a child from a previous relationship . He also has an adult son from a previous relationship . Whilst in prison , he kept in contact with these and other family members by telephone .

As a prisoner , the applicant ’s earnings were limited . He earned on average about GBP DATE . Prisoners can only make telephone calls if they have credit on their prison pin account .

The applicant ’s complaint to ORG

On DATE the applicant submitted a complaint to ORG that the charges for telephone calls made from prisons were not equivalent to those made from payphone boxes in the community .

On DATE the ORG upheld the applicant ’s complaint and recommended that ORG reopen negotiations with ORG ( “ BT ” , their telephone communications provider ) over the cost of prison telephone calls , “ with a view to reducing the tariff so that prisoners are not penalised for making longer calls . ”

In his consideration of the applicant ’s complaint , the ORG made the following observations ; Firstly , he noted that the cost of a telephone call from a prison telephone was higher than the cost of a call from a public payphone if the call lasted TIME . In particular , if a prisoner were to make a TIME telephone call it would cost him / her over CARDINAL times more from a prison telephone compared to a public payphone . It was further remarked that ORG had entered into a contract with ORG in DATE for the provision of telephone services to prisoners . The contract was awarded following a tendering process . The invitation to tender had required that prisoners should not be charged above public payphone rates and the contract itself had also stated that prices would be kept to the public payphone level . Moreover , the contract identified that a commission would be paid by ORG on the sale of all telephone credits to prisoners .

The difference in charges had first arisen in DATE when GPE decided to increase the minimum charge for using a public payphone from MONEY to MONEY . ORG wished to retain a MONEY minimum charge and thus decided to agree to a different regime of call charges to that applied in the community . The deviation between the charging system in prisons and public payphones had since increased owing to more competitive public pricing .

The change in the contract appeared to have been confirmed in a Change Control Note between ORG and ORG dated DATE . It further appeared that there was no tendering process adopted at this or any other time since the deviation in charging rates . Figures obtained by the ORG ’s investigator suggested that prisoners lost significant amounts of money as a result of their not being charged public payphone rates for making telephone calls . In the applicant ’s case , he had lost GBP CARDINAL per annum as a consequence of being required to pay more than public payphone rates . This represented over CARDINAL months’ earnings for the applicant .

The ORG also highlighted that no impact assessment had been undertaken of the effect on prisoners of the decision that charges for prison telephone calls should deviate from those for public payphones . The information obtained in the course of the ORG ’s investigation suggested that the average length of a prisoner ’s call was TIME , which meant that a significant proportion of the prison population was likely to be disadvantaged .

Finally , the ORG considered that , given the high levels of literacy problems amongst prisoners , the choice to communicate by letter or telephone was not an equal one . Furthermore , letter writing between family and friends was on the decline in society at large . The immediacy and intimacy of telephone communication could not be substituted by letter writing . In particular , letter writing was time consuming , and whilst prisoners might have the time to write , their family and friends outside might not . The high cost of telephone calls would have an indirect impact on ORG ability to maintain contact with their family and friends .

The reaction of ORG to the ORG ’s Report

On DATE , in a letter directed to ORG , ORG ( “ Director General ” ) stated that the separate pricing structure from that used in payphones was assumed following the introduction of the MONEY minimum charge in DATE and that it ensured that pricing was consistent so that prisoners who made short calls did not effectively subsidise those who made longer calls .

The Director General further maintained that the majority of calls made by prisoners were short while PERCENT of calls lasted TIME . PERCENT of calls lasted TIME and PERCENT of calls were DATE , which was the point where public payphone calls became cheaper by comparison . Having regard to the foregoing , the Director General saw no reason to change the practices in this area .

In a letter dated DATE the Director General confirmed its intention not to follow the ORG ’s recommendation . It was underlined that the current contract with ORG would expire in DATE and that GPE had been informed that there would be no extension .

The applicant ’s letter before action to the Secretary of ORG

On DATE the applicant ’s solicitors wrote a letter before action challenging ORG failure to reduce the excessive cost of telephone calls for prisoners .

On DATE ORG responded to the applicant ’s letter before action . They made the following arguments . The pricing structure for telephone calls made by prisoners was reasonable and proportionate as it prevented prisoners who made short telephone calls from subsidising those making long telephone calls . Any reduction in the cost of calls would require a subsidy from the taxpayer which was unacceptable . Moreover , there was no legal obligation for ORG to provide prisoners with telephone services . It could therefore be argued that ORG access to a telephone was a privilege and not a right . Prisoners traditionally made calls of short duration and historical call data suggested that PERCENT of prisoner calls would be cheaper using the prison call rates . Prisoners still benefited from the MONEY minimum charge and analysis of the historical call data clearly indicated that a significant volume of calls were terminated before the connection was made ( for example due to an answering machine or the unavailability of the person sought ) . Finally , the contract with ORG allowed prisoners to pay for their calls with ORG the whole cost of the telephone network with the potential to make a profit .

The applicant ’s application for permission to apply for judicial review

On DATE the applicant lodged an application for permission to apply for judicial review of ORG refusal to reopen negotiations with ORG , with regard to reducing the cost of telephone calls for prisoners as recommended by the ORG .

On DATE PERSON refused the application following a review of the papers . In so doing , he reasoned that even if LAW was engaged , which he doubted , given the other means available to the applicant to maintain family contact ( such as correspondence , visits and short telephone calls ) , and despite their limitations , any interference was not arguably so serious so as to amount to an infringement of the applicant ’s LAW . The applicant had contended that his rights under LAW had been violated as it had not been demonstrated that there were legitimate reasons for the charging regime . Though one might agree or disagree with ORG assertion that prisoners were better served by the current charging regime in place , it was an entirely rational justification . The fact that no research had demonstrated that ORG view was true did not mean that there was a lack of justification or that there was an arguable breach of LAW .

On DATE permission to apply for judicial review was again refused following an oral hearing . PERSON pointed out that the applicant ’s claim for a mandatory order was impossible , but he accepted that if a breach of the applicant ’s Convention rights had occurred , it would be appropriate for the court to make a declaration to that effect . In refusing the application , GPE J considered that LAW was engaged in a limited sense as prisoners , notwithstanding their incarceration , had a family life . Of course , such family life could not be maintained in the same way as someone at liberty would seek to maintain it but it nevertheless could be maintained by correspondence , family visits and telephone calls . Within that context , telephone calls were of some importance . Consequently , the ability of a prisoner to communicate with his family by telephone was capable of engaging LAW and any interference would “ arguably amount to a violation of that right unless it could be shown under LAW to be proportionate and justified . ”

It was “ self evident ” that this was a “ question of fact and degree and that not every restriction upon free use of telephone facilities can constitute an interference with family life such as to engage LAW In GPE view , the facts of the present case were incapable of giving rise to a reasonable argument that the applicant ’s LAW had been infringed . The means of communication open to prisoners , which included correspondence , family visits and telephone calls ( albeit on the tariff criticised by the Ombudsman ) demonstrated proper regard for the family life of serving prisoners . The fact that a different tariff would permit prisoners to make telephone calls at a lesser cost than under the current regime was “ simply incapable of infringing family rights in the circumstances ... ”

The applicant ’s appeal against the refusal to grant him permission to apply for judicial review

On DATE ORG dismissed the applicant ’s appeal against the refusal to grant him permission to apply for judicial review . PERSON , in delivering judgment , accepted at the outset that under the prison telephone regime applicable to the applicant “ ... a TIME call from prison costs £ MONEY , or CARDINAL times the public box rate ” . He further found that DATE was capable of being engaged by an issue relating to telephone calls made by prisoners to their families . He considered that the question before the court was whether the availability of telephone calls in itself engaged LAW , and if so , whether the facts of the case demonstrated an interference sufficiently severe to breach LAW .

In light of this ORG ’s judgment in the case of PERSON v. the GPE , no . CARDINAL , DATE , it was doubtful whether it was open to the ORG even to question the availability of telephone calls through the application of LAW . Notwithstanding , the circumstances in the present case with regard to the availability of telephone calls were not sufficiently severe to constitute an interference under LAW . As such , ORG had no obligation to justify the charging regime as being proportionate under LAW .

As to the applicant ’s complaint under LAW , a limited approach had to be taken when considering whether the availability of telephone calls fell within the ambit of LAW . In light of the fact that LAW was not engaged in the circumstances , LAW could not be relied on . In any event , in respect of use of the telephone , prisoners could not claim to be in a relatively comparable position to persons in the wider community .

ORG Complaint to ORG ( ORG )

On DATE the ORG submitted a complaint to ORG , with the assistance of ORG ( PRT ) . The complaint stated specifically that the high cost of telephone calls made by prisoners in GPE , GPE and GPE seemed unrelated to the cost of provision of the service and that the service contract itself prevented competition .

On DATE ORG published its response to the complaint . It found that the cost of telephone calls made by prisoners appeared to be high compared to the measure of costs involved and the cost of telephone calls in private prisons . It also noted that at least until DATE , the average cost of telephone calls from ORG prisons in GPE , GPE and GPE was higher than if the same pattern of telephone calls were made from a GPE public payphone . In particular , the average cost of a telephone call to a landline was MONEY from a prison telephone but MONEY from a GPE public payphone . It was observed that CARDINAL of the QUANTITY privately managed prisons in the GPE operated on a non - BT pinphone system . The average cost of a telephone call from ORG prisons in GPE , GPE and GPE to a landline was MONEY but only MONEY to MONEY from private prisons not using the ORG pin - phone system . Moreover , under the contract with ORG received a PERCENT commission on the revenue generated by telephone calls made by prisoners . BT , on the other hand , received a relatively high rate of return on the revenue generated by these telephone calls which amounted to PERCENT return over the entire contract period until DATE and which was worth MONEY in revenue .

ORG recommended early renegotiation between ORG and ORG current service contract with a view to reducing the cost of telephone calls made by prisoners . ORG warned that if ORG did not engage in early renegotiation , or if the renegotiation was unsuccessful in reducing the cost of telephone calls , they might reconsider the matter and take further action . This further action could include referring the matter to ORG .

Telephone Services

The prison telephone service ( except in certain private prisons ) is provided under a contract between ORG and ORG . A prisoner will pay MONEY for TIME of any call to a GPE landline and CARDINAL p for each TIME thereafter .

In public telephone boxes , a minimum charge of MONEY is imposed for any call of TIME , and thereafter MONEY for each period of TIME .

This means that calls by a prisoner that last for TIME are cheaper than from a public payphone , but longer calls will be more expensive than public telephone calls by amounts significantly increasing as the call increases in length . For instance , a TIME call from prison costs GBP MONEY , or CARDINAL times than from a public payphone .

Prison Rules

Rule CARDINAL of the Prison Rules DATE ( SI CARDINAL/CARDINAL ) ( “ the DATE Rules ” ) provides the following :

“ CARDINAL . - ( CARDINAL ) Special attention shall be paid to the maintenance of such relationships between a prisoner and his family as are desirable in the best interests of both . ( CARDINAL ) A prisoner shall be encouraged and assisted to establish and maintain such relations with persons and agencies outside prison as may , in the opinion of the governor , best promote the interests of his family and his own social rehabilitation . ”

Rule CARDINAL of the Prison Rules DATE ( as amended by FAC ) ( no.CARDINAL ) Rules DATE ) provides that any interference with a prisoner ’s right to communicate is subject to the qualification that such restrictions must not interfere with the prisoner ’s Convention rights unless proportionate to the aims prescribed by LAW or for prison security , discipline or good order .

ORG

In “ A Human Rights Approach to ORG , ” ORG , Second Edition , which was produced by ORG in conjunction with ORG in DATE , prison staff are instructed as follows ( see p. CARDINAL ) :

“ Forms of contact other than family visits are also important . Prisoners should be able to send and receive correspondence as freely as possible and where feasible to make and to receive telephone calls . ”

It further states ( see p. CARDINAL ) :

“ In many prison systems it is now possible for prisoners to make or to receive telephone calls . Logistical arrangements differ from country to country . In some cases the person receiving the call from the prisoner has to agree to meet the cost of the call . This can be a very expensive arrangement since such calls are normally charged at a higher rate than normal calls . In other prison systems prisoners can purchase special telephone cards , which sometimes will only permit calls to be made to approved telephone numbers . Telephone conversations become especially important when the prisoner is being held QUANTITY from home and it is difficult for his or her family to visit . ”

ORG DATE ) CARDINAL of ORG to member states on ORG , adopted by ORG on DATE , recommends the following at paragraph CARDINAL :

“ Contact with the outside world

CARDINAL Prisoners shall be allowed to communicate as often as possible by letter , telephone or other forms of communication with their families , other persons and representatives of outside organisations and to receive visits from these persons .

CARDINAL Communication and visits may be subject to restrictions and monitoring necessary for the requirements of continuing criminal investigations , maintenance of good order , safety and security , prevention of criminal offences and protection of victims of crime , but such restrictions , including specific restrictions ordered by a judicial authority , shall nevertheless allow an acceptable minimum level of contact . ”


CASE OF GHEORGHE AND MARIA MIHAELA DUMITRESCU  v. ROMANIA

Violation of Article 6 - Right to a fair trial

Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Ineta Ziemele;Josep Casadevall

The applicants , who are father and daughter , were born in DATE and DATE respectively and live in ORG .

On DATE the second applicant was grievously injured in a car accident . She suffered total paralysis of her lower limbs and was admitted to hospital where , according to the first applicant , she remained for DATE .

On an unknown date during pre - trial investigations the second applicant ’s mother claimed damages in criminal proceedings . On DATE ORG attached to ORG of First Instance ( “ ORG ” ) committed PERSON , the driver of the car , for trial before ORG .

Of the CARDINAL hearings held DATE and CARDINAL DATE , CARDINAL were adjourned for the absence of witnesses or of expert reports , for hearing new witnesses and for ordering a new expert report , CARDINAL at PERSON ’s request for the absence of her lawyer and CARDINAL for deliberations .

On DATE ORG convicted PERSON of having negligently caused bodily harm , sentenced her to a conditional prison sentence of DATE , held her personally liable and awarded both pecuniary and non - pecuniary damages to the second applicant and to her mother . It also ordered PERSON to pay the mother a DATE sum pending her daughter ’s recovery .

On DATE ORG ( “ the Regional Court ” ) rejected an appeal by the mother , considering that ORG had correctly reduced the damages on the ground of contributory negligence by the second applicant and lack of surveillance by the parents .

On DATE ORG ( “ the Court of Appeal ” ) upheld a subsequent appeal lodged by both the second applicant ’s mother and PERSON and quashed the previous judgment , sending the case back for retrial . The court noted that the insurance company had not been summoned .

During the retrial the QUANTITY hearings held DATE and DATE were adjourned at the request of either PERSON or the insurance company .

On DATE ORG sentenced PERSON to a conditional prison sentence of DATE , held her jointly liable with the insurance company and awarded both pecuniary and non - pecuniary damages to the second applicant and to her mother , including a DATE sum pending the second applicant ’s recovery .

On DATE ORG rejected an appeal by the second applicant ’s mother and , finding that her daughter had been exclusively at fault , allowed an appeal by the opposing parties , held PERSON personally liable and reduced the amount of damages .

On DATE ORG upheld subsequent appeals lodged by the second applicant ’s mother and by the public prosecutor , quashed the previous judgment and sent the case back for retrial . The court considered that both parties to the accident had been at fault and that ORG had not pronounced on all the complaints raised by the second applicant ’s mother .

After the retrial , on DATE ORG allowed the action lodged by the second applicant ’s mother in part and awarded both pecuniary and non - pecuniary damages , finding PERSON jointly liable up to a certain sum and exclusively liable for the remainder .

On DATE ORG gave a final decision rejecting as unfounded an appeal by the second applicant ’s mother . The court considered that the quantum of damages had been correctly assessed .


Violation of Art. 6-1;Violation of Art. 13

Isabelle Berro-Lefèvre;Karel Jungwiert;Mirjana Lazarova Trajkovska;Mykhaylo Buromenskiy;Peer Lorenzen;Renate Jaeger;Zdravka Kalaydjieva

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

By judgment of DATE ORG partitioned a property inheritance between the applicant 's mother and her relatives .

On DATE the applicant 's mother gifted the applicant part of an apartment in ORG awarded to her by the above - mentioned judgment .

In DATE the applicant 's mother instituted proceedings in ORG against GPE , GPE and CARDINAL other persons ( her relatives ) , seeking their eviction from her apartment .

On DATE the applicant 's mother died . On DATE the applicant was admitted to the proceedings as her next of kin .

In DATE GPE and PERSON lodged a counterclaim , seeking to have the contract of CARDINAL DATE declared void ; subsequently they sought invalidation of the applicant 's mother 's will which was in favour of the applicant . They also sought to have property rights over the relevant parts of the disputed apartment acknowledged as theirs .

On DATE the court found for the applicant and ordered the defendants to vacate the apartment . It dismissed the counterclaim by GPE and GPE

The defendants appealed but due to the shortcomings of their appeal the proceedings were protracted for DATE .

On DATE the ORG , having found , inter alia , that the lower court had failed to examine crucial pieces of evidence , set aside that judgment and remitted the case for fresh examination .

On DATE the applicant appealed in cassation against the latter decision ; on DATE ORG dismissed her appeal .

Of TIME hearings held DATE and DATE CARDINAL were adjourned due to the defendants ' failure to appear before the court . Within this period CARDINAL forensic examinations were held staying the proceedings in total for DATE and DATE .

In DATE ORG took over the case .

From DATE to DATE the proceedings were stayed as the additional forensic examination had been ordered .

On DATE ORG declared the contract of CARDINAL DATE and the applicant 's mother 's will void . It dismissed the applicant 's request to have the defendants evicted .

Of the CARDINAL hearings held by the first instance court one was adjourned due to the applicant 's and CARDINAL due to the defendants ' failure to appear before the court .

On DATE and DATE ORG and ORG of GPE dismissed the applicant 's appeals and upheld the judgment .


Remainder inadmissible;No violation of Art. 3 (substantive aspect);Violation of Art. 3 (procedural aspect);Violation of Art. 5-3;Violation of Art. 6-3-c;Non-pecuniary damage - award

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

The applicants were born in DATE and DATE respectively and live in GPE .

On DATE CARDINAL persons were shot and injured in a bus by a person who subsequently got off the bus .

On DATE , upon receipt of information that the suspect of the shooting was in a red car , police officers from the GPE police headquarters arrested the applicants during a traffic control operation that had they initiated on the ORG motorway . The security forces further arrested CARDINAL other persons , including the first applicant ’s brother , in another car . The police officers confiscated the applicants’ mobile telephones and both cars , in which CARDINAL firearms were found . On DATE , the applicants were taken into police custody .

On DATE CARDINAL police officers drafted a report containing the numbers dialled and calls received on the mobile telephones of the first applicant , his brother and another suspect .

On DATE a single judge at the ORG extended the period of the applicants’ detention in police custody for a further DATE .

On DATE the applicants’ statements were taken by police officers from the organised crime unit of ORG . According to the document containing their statements , the applicants were suspected of forming a criminal profit - making organisation proscribed by LAW no . CARDINAL . According to the document , both applicants confessed to their involvement in a criminal organisation .

On DATE , DATE and DATE , the applicants were examined by doctors at ORG . The doctors noted in their reports that there were no signs of ill - treatment on the applicants’ persons .

On DATE the applicants were brought before a single judge at the Aydın ORG , who ordered their detention on remand . Before the judge , the applicants refuted the accuracy of the documents containing their statements taken by the police .

NORP On DATE the firearms found in the cars were subjected to a ballistic examination . The experts found that CARDINAL of the weapons found in the car of the first applicant ’s brother had been used in the shooting of DATE .

On an unspecified date a test was conducted in order to detect traces of gunpowder on the ORG and other PERSON hands , which resulted in the finding of gunpowder traces on the applicants’ hands .

On DATE ORG at ORG filed a bill of indictment , charging the applicants and CARDINAL other persons with forming a criminal profit - making organisation .

On DATE the applicants made statements before ORG and refuted the veracity of the documents containing their statements taken by the police . TIME containing their statements were then sent to ORG .

On DATE ORG held the first hearing on the merits of the case and heard some of the accused and read out the evidence in the case file . On DATE the ORG representative stated before the court that the applicants disputed the accuracy of the evidence against them , including the medical reports issued following their detention in police custody , which stated that there was no sign of physical violence on their bodies .

On DATE and DATE the court held the second and third hearings and took statements from some of the other accused .

On DATE , DATE , DATE and DATE , ORG refused to release the applicants , relying on the seriousness of the offence and the evidence in the case file .

On DATE , during the fourth hearing before ORG , the first applicant , PERSON , complained that he had been subjected to torture during his detention in police custody and that he suffered from cervical disk syndrome as a result . He denounced the statements that had been taken from him in police custody and contested the accuracy of the medical reports issued in his respect . At the end of the hearing , the court refused to release the applicants , taking into account the nature of the offence and state of the evidence . The court held that the next hearing would be held on DATE .

The applicants filed an objection to the decision for their continued detention .

On DATE another Chamber of the İzmir State Security Court dismissed the applicants’ objection , holding that the decision for their continued detention was justified .

DATE and DATE the ORG held CARDINAL more hearings .

On DATE the ORG convicted the applicants of forming a profit - making criminal gang and sentenced them to DATE and CARDINAL months’ imprisonment . In its judgment , the court took into consideration as evidence the arrest report , the report stating that firearms were found in the applicants’ car , the ORG statements to the police , the medical reports issued at the end of their detention in police custody , the report containing the details of the telephone calls made by the first applicant , the results of the test showing gunpowder traces on the applicants’ hands and the ballistic reports . The court further noted the past relations between the applicants and the other accused , as well as the hostility between them and CARDINAL of the persons who had been shot on DATE . In the light of the evidence in the case file , ORG found it established that the applicants had formed a criminal organisation with a view to making a profit , and that the shooting of the CARDINAL persons on DATE had been a result of the activities of that organisation . Taking into account the total period of the applicants’ pre - trial detention , the court ordered their release .

On DATE ORG upheld the decision of ORG .

On DATE ORG filed a bill of indictment with ORG , charging the applicants with causing grievously bodily harm to third persons .

On DATE ORG acquitted the applicants . The court noted that the persons who had been shot could not identify the applicants as the perpetrators of the shooting . It held that there was insufficient evidence in the case file to conclude that the applicants had been involved in the shooting .

On DATE the applicant met his representative in the ORG prison . The applicant complained about the ill - treatment he had allegedly suffered in police custody . He asked his representative to secure him a medical examination .

On DATE the applicant ’s representative filed a petition with ORG office , requesting the latter to order the medical examination of both applicants . He alleged that , during the applicants’ detention in police custody , they had been subjected to various forms of ill - treatment , including hanging by the arms , which still caused them pain and had left marks on their bodies . He further stated that the applicants had previously been examined by doctors who had turned a blind eye to these marks and had failed to draft accurate medical reports . He warned that an immediate medical examination was necessary since the traces of ill - treatment risked disappearing .

On DATE , ORG sent a letter to ORG , requesting the latter to send the applicants to ORG ORG for medical examinations . He further asked the prison administration to provide him with the medical reports concerning the findings on the ORG bodies so that he could verify whether they had been subjected to ill - treatment .

On DATE the first applicant was taken to a clinic attached to the ORG Governor ’s office . A doctor examined the applicant and drafted a report in which he noted that there was no sign of ill - treatment . He recommended that the applicant undergo a medical examination by a neurologist .

On DATE a doctor at ORG drafted a report on the first applicant ’s neurological examination . He noted that there were no pathological findings in respect of the applicant .

According to the first applicant ’s submissions , on DATE , another doctor at the hospital took an x - ray of his neck . The applicant further submitted that the doctor had noted in his report that he was suffering from cervical disk syndrome . The doctor sent the applicant ’s x - ray to the ORG prison .

On DATE a doctor at ORG prescribed a hard cervical collar for the first applicant . According to TIME of the hearing before ORG held on DATE , the applicant appeared before the court wearing the collar .

On DATE the applicant filed a complaint with ORG office against the police officers who had allegedly illtreated him , and the prison authorities , who had failed to arrange his transportation to a hospital for medical examination . He also complained about the doctors who had not examined him in accordance with the regulations and had failed to note his injuries in their reports .

On DATE a doctor prescribed anti - inflammatory medicine ( GPE ) for the applicant .

On DATE the applicant stated before ORG , within the context of his defence concerning the case brought against him before ORG ( see paragraph CARDINAL above ) , that he had been subjected to torture and had suffered from severe pain in his neck as a result . He further maintained that he could not receive appropriate medical treatment since he was detained .

On DATE ORG issued a decision to discontinue the criminal proceedings against the police officers since no sign of ill - treatment had been detected on the applicant ’s person . In his decision , the public prosecutor relied exclusively on the medical reports issued in respect of the applicant on CARDINAL , DATE and DATE and the medical report issued during the investigation .

On DATE Mr PERSON filed an objection with ORG against this decision . He maintained that he had worn a cervical collar for DATE . He further contended that the cervical X - ray , the medical report diagnosing him with cervical disk syndrome and the prescriptions had not been given to him . Nor had they been included in the investigation file .

On DATE ORG dismissed the applicant ’s objection . The court considered that the decision to discontinue the proceedings was justified given the lack of sufficient evidence capable of substantiating the applicant ’s allegations of ill - treatment .

A full description of the law and practice at the relevant time may be found in GPE and Others v. GPE , ( nos . PERSON and CARDINAL , § § CARDINAL - CARDINAL , ECHR CARDINAL-IV ( extracts ) ) and in GPE v. GPE ( [ ORG ] , no . CARDINAL , § § DATE and DATE , DATE ) .


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

Christos Rozakis;Dean Spielmann;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens

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

The applicant owns a flat in GPE , GPE . In DATE ORG passed a law governing the temporary use of property of persons who had left GPE - Temporary Takeover and ORG o privremenom preuzimanju i upravljanju određenom imovinom - hereinafter the “ Property Takeover Act ” ) , which allowed municipalities to temporarily accommodate other persons in such property .

NORP In DATE NORP , a policeman , forcibly moved into the applicant ’s flat in GPE , GPE . On DATE ORG granted him refugee status and legalised his occupation of the applicant ’s flat . On DATE the applicant applied to ORG for repossession of her property .

On DATE the applicant instituted civil proceedings before ORG seeking NORP ’s eviction . On DATE the claim was declared inadmissible for lack of jurisdiction . The applicant appealed .

On DATE the applicant lodged a request with ORG , Reconstruction and Construction seeking annulment of the decision authorising NORP to occupy her flat .

The judgment of ORG of DATE was quashed by ORG on DATE and the case was remitted to ORG for a fresh trial .

On DATE the LAW to LAW ( Zakon o izmjenama i dopunama PERSON o područjima od posebne državne skrbi – “ the DATE Amendments ” ) entered into force . They transferred the jurisdiction in the matter from the housing commissions ( which were abolished ) to ORG , Reconstruction and Construction ( ORG radove , obnovu i graditeljstvo – “ the Ministry ” ) .

On DATE ORG upheld the claim and ordered NORP ’s eviction . NORP appealed .

On DATE the Ministry set aside ORG decision authorising NORP to occupy the applicant ’s flat but also stated that NORP had the right to housing under LAW .

The judgment of ORG of DATE was quashed by ORG on DATE on the ground that no alternative accommodation had been provided to NORP Accordingly , the case was returned to ORG for further examination . On DATE the applicant lodged an application with ORG complaining about the length of the proceedings . In a letter of CARDINAL DATE ORG instructed ORG to speed up the proceedings .

On DATE ORG again granted the applicant ’s claim and ordered NORP ’s eviction . NORP appealed against this judgment to ORG . While the case was pending there the applicant once more applied to ORG complaining about the length of the proceedings . In a letter of DATE ORG instructed ORG to speed up the proceedings and adopt a judgment .

On DATE ORG again quashed the judgment of ORG and accordingly the latter was once more required to examine the applicant ’s claims . In a judgment of CARDINAL DATE ORG , as in its previous judgments , found in favour of the applicant . NORP appealed against this judgment and the appeal is at present pending before ORG .

The following are the relevant sections of LAW ( Zakon o privremenom preuzimanju i upravljanju određenom imovinom , ORG nos . CARDINAL/CARDINAL and CARDINAL/CARDINAL):-

Section CARDINAL(CARDINAL ) transferred the property belonging to persons who had left GPE after DATE to the care and control of the ORG .

Section CARDINAL , inter alia , authorised the property takeover commissions to allow temporary occupation of property under section CARDINAL by refugees , displaced persons or persons whose property had been destroyed in the war .

Section CARDINAL of the Programme for Return ( Program povratka i zbrinjavanja prognanika , izbjeglica i raseljenih osoba , Official Gazette no . GPE ) provided as follows :

“ Persons with NORP [ citizenship ] documents who are owners of property in GPE in which other persons are temporarily accommodated may apply to the municipal housing commission seeking repossession of their property . The commission shall inform the owner within DATE about the status of his property . Relying on proof of ownership , the commission shall set aside any previous decision allowing the temporary accommodation of other persons and order the temporary occupier to vacate the LOC . The commission shall serve a written decision on the owner and on the temporary occupier within DATE . The decision shall contain a time - limit for eviction and an offer of alternative accommodation for the temporary occupier in a house or flat under state ownership .

If a temporary occupier fails to vacate the LOC within the fixed time - limit , the commission shall institute eviction proceedings in the competent municipal court within DATE . The court shall apply the provisions concerning summary procedure in civil matters . The court ’s decision shall be immediately enforceable . An appeal shall not interfere with the enforcement proceedings or the repossession of the property by the owner . ”

Section CARDINAL(CARDINAL ) and CARDINAL ) of LAW ( Zakon o prestanku važenja PERSON o privremenom preuzimanju i upravljanu određenom imovinom , Official PERSON no . DATE ) provided that the Programme for Return applied to proceedings concerning the temporary use , management and control of the property of persons who had left GPE and that such proceedings were to be conducted by housing commissions in the first instance and by municipal courts in the second instance . They were required to apply LAW .

Sections CARDINAL , DATE and QUANTITY on Areas of Special State Concern ( Zakon o područjima od posebne državne skrbi , ORG nos . CARDINAL , ORG ( errata ) , DATE , CARDINAL , QUANTITY ( errata ) , PERSON , PERSON , CARDINAL , CARDINAL ( consolidated text ) , DATE ) , as amended by LAW , gave a temporary occupier a right to housing .

Section CARDINAL ( enacted on DATE , published in the Official Gazette no . CARDINAL of DATE , came into force on DATE ) obliges the Ministry to secure alternative accommodation for the occupier within DATE of the owner ’s request for the return of his or her property , failing which the owner is entitled to seek the conclusion of a lease agreement by which the occupier leases the LOC and ORG pays the rent to the owner .

Section CARDINAL obliges the Ministry to pay compensation for the damage sustained by an owner who applied for repossession of his or her property prior to DATE but to whom the property was not returned by DATE .

The Decision on the Level of Compensation Due to Owners for Damage Sustained ( ORG o visini naknade vlasnicima za pretrpljenu štetu , ORG no . CARDINAL/CARDINAL ) establishes the amount of that compensation at CARDINAL NORP kunas ( HRK ) per square metre .

The following are the relevant sections of LAW ( Zakon o vlasništvu i drugim stvarnim pravima , ORG nos . CARDINAL/CARDINAL , CARDINAL and CARDINAL

Section CARDINAL(CARDINAL ) entitles the owner of property to recover it from anyone who is in possession of it .

Section CARDINAL(CARDINAL ) allows anyone entitled to retain possession ( that is , if he or she has a right of possession ) to refuse to return the property to its owner .

The relevant part of LAW ( Zakon o sudovima , ORG no . CARDINAL of DATE , entered into force on DATE ) reads as follows :

“ ( CARDINAL ) In the determination of his rights and obligations or of a criminal charge against him or her , everyone is entitled to a fair hearing within a reasonable time by an independent and impartial tribunal established by law .

“ ( CARDINAL ) A party to the judicial proceedings ... may lodge a request for the protection of the right to a hearing within a reasonable time with a court hierarchically superior [ to the one conducting the proceedings ] .

“ ( CARDINAL ) Where the court deciding a request under LAW finds it founded it shall set a time - limit within which the competent court must decide the case on the merits ... and shall also assess appropriate compensation for the applicant for the violation of his or her right to a hearing within a reasonable time .

( CARDINAL ) An appeal lies to ORG against a decision on a request for protection of the right to a hearing within a reasonable time . ... a constitutional complaint may be lodged against ORG decision . ”

The relevant part of LAW on LAW ( Ustavni zakon o PERSON , ORG no . CARDINAL of CARDINAL DATE – “ LAW ” ) reads as follows :

Section CARDINAL

“ ( CARDINAL ) The Constitutional Court shall examine a constitutional complaint whether or not all legal remedies have been exhausted if the competent court fails to decide a claim concerning the applicant ’s rights and obligations or a criminal charge against him or her within a reasonable time ...

( CARDINAL ) If a constitutional complaint ... under paragraph CARDINAL of this section is upheld , the Constitutional Court shall set a time - limit within which the competent court must decide the case on the merits ...

( CARDINAL ) In a decision issued under paragraph CARDINAL of this section , the Constitutional Court shall assess appropriate compensation for the applicant for the violation of his or her constitutional rights ... The compensation shall be paid out of the ORG budget within DATE from the date on which a request for payment is lodged . ”

NORP In a series of decisions ( for example , in cases nos . Rev-CARDINAL/CARDINAL - CARDINAL of DATE , CARDINAL of DATE and CARDINAL of DATE ) , starting with decision no . RevCARDINAL/CARDINAL - CARDINAL of DATE ORG interpreted the relationship between LAW and LAW as follows :

“ The jurisdiction to decide on an owner ’s application for repossession conferred on the administrative authorities LAW does not exclude ordinary court jurisdiction in such matters under LAW . Therefore , a civil action for repossession , based on section CARDINAL(CARDINAL ) of LAW and brought in a court against a temporary occupier by an owner whose property had been taken over under LAW , should be decided on its merits rather than declared inadmissible for lack of jurisdiction . ”

In its decisions ORG . LAW and RevCARDINAL/CARDINAL - CARDINAL of DATE ORG gave a further interpretation of the relationship between LAW and LAW as well as of ORG :

“ The temporary occupier ’s right to use the owner ’s property does not cease merely for the reason that a housing commission has set aside the decision allowing him or her to do so . This is because the duty to return the property to its owner is conditional upon the duty of the ORG to provide alternative accommodation for the temporary occupier .

It follows that the temporary occupier is not obliged to compensate the owner for the use of his or her property since , before being provided with alternative accommodation , he or she remains in bona fide possession . ”


Violation of Article 13 - Right to an effective remedy;Violation of Article 6 - Right to a fair trial;Violation of Article 1 of Protocol No. 1 - Protection of property

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

The applicant was born in DATE and lives in GPE .

As a victim of GPE , the applicant was entitled to social beneﬁts . Considering himself underpaid , he brought CARDINAL actions against a social - security authority .

On DATE ORG held for the applicant and ordered the authority to pay arrears and to increase the periodic payments . This judgment became binding on DATE . According to the Government , this judgment was gradually enforced by DATE . According to the applicant , this judgment has not been fully enforced to date , because the periodic payments lag behind the cost of living .

On DATE the town court held for the applicant and ordered the authority to pay MONEY ( RUB ) in arrears and to upgrade the periodic payments to RUB CARDINAL,CARDINAL.CARDINAL with their subsequent adjustment for the cost - of - living . This judgment became binding on DATE , but has not been fully enforced to date .

Under LAW of DATE , a bailiff must enforce a judgment in DATE . Under section QUANTITY of LAW of DATE , ORG must enforce a judgment in DATE .


The applicant is a NORP national , born in DATE and living in GPE , GPE .

On DATE the applicant ’s flat was visited by CARDINAL bailiffs accompanied by an employee of a private security agency . The bailiffs informed the applicant ’s wife , who was present in the flat together with her CARDINAL minor children and CARDINAL adult members of her family , that they had a warrant for seizure of the movable property located in the flat . They also stated that the warrant had been issued after the applicant , who had been running a small business , had failed to pay social security contributions . The applicant ’s wife refused to surrender any property since the outstanding social security contributions had already been paid up and she telephoned her husband . After being informed by his wife about the bailiffs’ attempt to execute the warrant , the applicant spoke on the telephone to CARDINAL of them and confirmed that he had paid all outstanding social security contributions . Subsequently the bailiffs and the security agent left the flat .

On DATE the applicant visited ORG ( PERSON ) . After he presented a receipt proving that he had paid all outstanding social security contributions on DATE , the employee responsible for his account admitted that the warrant had been erroneously issued and apologised to him .

On DATE the applicant complained to ORG ) about the actions of the bailiffs . He alleged that they had behaved in a threatening manner and one of them was armed . As a result the state of health of the applicant ’s wife deteriorated and his children would not stay alone at home . The applicant contended that the bailiffs had breached the peace and abused their powers .

On DATE the applicant ’s wife died . On an unspecified date the applicant informed ORG that in his opinion his wife ’s death had resulted from the stress caused by the actions of the bailiffs .

On DATE ORG decided to discontinue the investigation of the applicant ’s complaint relating to the breach of the peace . He considered that the bailiffs had acted in good faith and had not committed any offence , which was subject to public prosecution . He also advised the applicant that he could bring a private indictment seeking a conviction of breach of peace . On an unspecified date the applicant ’s appeal against the decision of DATE was dismissed .

On DATE ORG decided to discontinue the investigation of the applicant ’s complaint concerning the alleged abuse of powers by the bailiffs . He pointed out that they had refrained from the execution of the warrant as soon as they had been informed that the social security contributions had been paid up . ORG further noted that the bailiffs had behaved in a peaceful manner during the incident and that they were always armed with gas pistols during the execution of warrants . With respect to the applicant ’s allegation that his wife ’s death had resulted from the stress caused by the actions of the bailiffs , ORG observed that she had suffered from neurasthenia and had been treated in a psychiatric clinic . He also noted that although she had had problems with blood pressure , she had been satisfied with the treatment she had been receiving and had felt better before her death . ORG concluded that there was no causal link between the death of the applicant ’s wife , which had taken place DATE after the incident , and the actions of the bailiffs . On DATE the applicant appealed to ORG against the decision of DATE .

On DATE the applicant complained to ORG about the actions of the bailiffs during the incident which had taken place on DATE . On DATE the complaint was transferred to ORG ( Izba Skarbowa ) . On DATE the Director of ORG informed the applicant that the investigation of his complaint had showed that it had been unfounded . He pointed out that the bailiffs had left the applicant ’s flat after the applicant had declared that the outstanding social security contributions had been paid up . Moreover , during his visit to ORG on DATE the applicant had not raised any complaints about the behaviour of the bailiffs . The Director also informed the applicant that disciplinary measures had been taken against the employee responsible for the erroneous warrant .

On DATE ORG dismissed the applicant ’s appeal against ORG decision to discontinue the investigation considering that there was no causal link between the bailiffs’ actions and the death of the applicant ’s wife . He pointed out that the bailiffs had behaved well during the incident and that although the applicant ’s wife had become agitated as a result of their attempt to execute the warrant , she had been calm already in TIME following the incident .

On DATE the applicant complained to the Poznań Appellate Prosecutor ( Prokuratura Apelacyjna ) about the decision of CARDINAL DATE . He pointed out that ORG had not taken evidence from a certain witness and had not requested an expert medical opinion as to the existence of a causal link between the bailiffs’ actions and his wife ’s death . In a letter of DATE ORG informed the applicant that he had instructed the subordinate prosecutor to reopen the investigation .

On DATE ORG reopened the investigation of the applicant ’s complaint concerning the abuse of powers by the bailiffs . On DATE ORG requested ORG in GPE to prepare an expert opinion on whether there was a causal link between the actions of the bailiffs during the incident in the applicant ’s flat on DATE and the death of the applicant ’s wife on DATE and whether her agitation caused by the bailiffs’ actions could have had a negative impact on her state of health .

On DATE ORG issued an expert opinion . It stated that it was impossible to establish the existence of a causal link between the bailiffs’ actions and the death of the applicant ’s wife as there was no sufficient medical evidence leading to such conclusion . Furthermore , the opinion stated that although it was possible that the bailiffs’ actions could have had a negative impact on the state of health of the applicant ’s wife , there was no evidence supporting such conclusion .

On DATE ORG decided to discontinue the investigation of the applicant ’s complaint . He considered that the evidence showed that there was no causal link between the bailiffs’ actions and the death of the applicant ’s wife . In particular , ORG referred to the depositions of the applicant and his children , who had witnessed the bailiffs’ actions , according to which the incident on DATE had not involved the use of force , threats or insults . Although the applicant ’s wife and the bailiffs spoke in raised voices , the latter had left the flat after talking on the telephone with the applicant . ORG also recalled the conclusions of the expert opinion prepared by ORG in GPE .

On DATE the applicant appealed against the decision of DATE . On CARDINAL DATE ORG dismissed the appeal considering that ORG had correctly concluded on the basis of the evidence in the case - file that there had been no causal link between the bailiffs’ actions and the death of the applicant ’s wife .

On DATE the applicant complained to ORG about the decision to discontinue the investigation . On DATE his complaint was transmitted to the ORG . On DATE the ORG


The applicant is a NORP national , born in DATE and living in GPE .

A.

On DATE the applicant lodged an action with ORG súd - “ the ORG ” ) in which she claimed that her neighbours should remove a fence , that they should stop disturbing her in the enjoyment of her property and that a certificate according to which her neighbours owned a plot was void .

On DATE the parties , assisted by a judge of ORG , reached a friendly settlement of the case . The agreement was signed by both the applicant and her son whom she had authorised to represent her in the proceedings . On DATE ORG issued a decision in which it approved the terms of the settlement under which each party undertook to respect the other party ’s property rights .

Subsequently the applicant requested that ORG decision of CARDINAL DATE should be quashed . She submitted that the agreement was unlawful as it determined the property rights of other co - owners who had not been a party to the proceedings and that she had signed it under pressure . In particular , the applicant alleged that the judge dealing with the case had shouted at her , that she had called a policeman to the court room and had threatened to evict the applicant should she not sign the agreement . The applicant further complained that she had not been able to duly verify whether her property had been specified correctly in the agreement .

Another judge of ORG dismissed the request on DATE after having heard the participants and the policeman concerned . It was established that the latter ’s presence had been ordered because of the parties’ undisciplined behaviour in the course of the previous hearing . ORG found no reliable evidence indicating that either the judge or the policeman had exercised any pressure on the applicant or her representative . The latter confirmed that he had signed the agreement after having glanced through it . The court held that the applicant and her representative had signed the agreement freely within the meaning of LAW ( CARDINAL ) of LAW ( see “ Relevant domestic law ” below ) and concluded that the agreement was valid . Finally , ORG found that the agreement concerned exclusively the applicant ’s share in the relevant property and that the rights of the other co - owners remained unaffected .

The applicant appealed and alleged that the agreement was contrary to Sections CARDINAL and CARDINAL of LAW . In particular , she maintained that she and her son had been deterred by the presence of a policeman and had signed the agreement at the judge ’s insistence notwithstanding that she had not understood its terms . She further alleged that the agreement had unlawfully modified the rights of other co - owners of the real property .

On DATE the Banská Bystrica Regional Court ( Krajský súd - “ the Regional Court ” ) upheld the first instance judgment as it considered that the friendly settlement agreement was not invalid under the law within the meaning of LAW ( CARDINAL ) of LAW .

ORG noted that the presence of a policeman at the hearing before ORG could not be considered , as such , as a threat , that it had been justified by the need to ensure a proper conduct of the proceedings and that the applicant had failed to show that the judge or the policeman had exercised any pressure on her . In the court ’s view , the agreement was in any event valid as it had been signed by the applicant ’s son who had been duly authorised to act on her behalf within the meaning of LAW ( CARDINAL ) of LAW .

ORG also noted that in the agreement the applicant had recognised , on her own behalf , that the defendants were owners of the plot at issue . It pointed out that the rights of any other person to contest the ownership of the plot remained unaffected .

In the appellate proceedings the applicant was represented by a lawyer . She attended the hearing and was given the floor . When she started speaking the judge told the applicant that she should keep herself at a greater distance so that she would not splutter at her . As a result , the applicant was distressed and was not able to finish her speech .

On DATE the applicant complained about this fact to ORG .

The applicant also lodged an appeal on points of law with ORG ( Najvyšší súd ) . She alleged that she had concluded the agreement under psychological pressure without having understood its terms . She further stated that she had not been able to act before the appellate court .

On DATE ORG rejected the applicant ’s appeal on points of law on the ground that such a remedy was not available in the case . In its decision ORG noted that in the appellate proceedings the applicant had had full opportunity to submit her arguments both through her lawyer and in person and that all relevant evidence suggested by her had been taken .

On DATE ORG informed the applicant that ORG judge had not intended to confuse or offend the applicant . ORG found therefore no reason for disciplining the judge .

B. Relevant domestic law

Civil Code

Section CARDINAL ( CARDINAL ) provides that for a legal act to be valid , it is to be carried out freely , with serious intention , certainly and comprehensibly .

Pursuant to Section CARDINAL , a legal act is void if its contents or purpose contradicts or circumvents the law or is contrary to boni mores .

Code of Civil Procedure

Section CARDINAL ( CARDINAL ) provides that an authority to represent a party in the proceedings as a whole can not be restricted . A representative with such an authority can carry out all acts a party to the proceedings is entitled to .

Under LAW ( CARDINAL ) , parties may terminate civil proceedings by means of a friendly settlement if it is compatible with the nature of the case . Courts should always make an attempt with a view to securing a friendly settlement .

Section CARDINAL ( CARDINAL ) provides that a court shall decide whether or not it approves a friendly settlement . A settlement can not be approved if it is contrary to the law .

Pursuant to Section CARDINAL ( CARDINAL ) , an approved friendly settlement has the effect of a final judgment . A court may , however , quash an earlier decision on the approval of a settlement agreement if the latter is void under the relevant law .