CASE OF AL HANCHI v. BOSNIA AND HERZEGOVINA

No violation of Art. 3 (in case of expulsion to Tunisia);Remainder inadmissible

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

The applicant was born in GPE in DATE . He arrived in GPE during the DATE - CARDINAL war and joined the foreign mujahedin . The mujahedin phenomenon is explained by ORG for the former GPE in the PERSON and PERSON judgment , IT-CARDINAL - CARDINAL-T , § § CARDINAL - DATE , as follows :

“ CARDINAL . Witnesses for both the Prosecution and Defence agreed that the foreign mujahedin began to arrive in PERSON and PERSON during DATE , particularly in DATE .

At that time , the borders of GPE ) were controlled by the organs of PERSON or ORG authorities , which made it very difficult for the RBiH legal authorities , more specifically the ORG ( ORG ) , to control the entry and movements of foreigners in the RBiH. Foreign mujahedin reached GPE via GPE and via GPE where the HVO had established power . They frequently arrived as members of humanitarian organisations and did not register with the RBiH authorities .

Most of the foreign mujahedin came from the countries of GPE , LOC and LOC , i.e. GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE and GPE . Some also came from NORP countries , but how many is not known .

Foreign mujahedin were easily recognisable by their traditional clothing and dark complexion . They had long beards and wore turbans or hats . Some wore camouflage uniforms or parts of camouflage uniforms , while others wore long white robes . There were also those with scarves around their head and neck . Most of them did not know the NORP language and spoke only LANGUAGE . The foreign mujahedin carried automatic rifles and rocket launchers . Some had sabres or long knives . Some witnesses recognised the insignia the foreign mujahedin wore on their shoulders .

According to the evidence characterising the position of the foreign mujahedin , the term ‘ PERSON refers to NORP fighting a jihad , or holy war . The foreign mujahedin went to GPE in order to help their NORP brothers defend themselves against the NORP aggressor and intended to leave the country once peace had been re - established . According to these same sources , the foreign mujahedin also wanted to spread their beliefs , which they felt were the most faithful expression of NORP texts .

Most foreign mujahedin in LOC seem to have arrived as members of humanitarian organisations . Defence witnesses agreed that during the first phase they were involved in humanitarian activities . They provided quite significant aid to the local NORP population , particularly food , and organised classes in religious instruction .

Starting in DATE when conflicts broke out in LOC , foreign mujahedin became fighters . They furnished the local population with weapons and uniforms and provided military training . As explained below , the foreign mujahedin took part systematically in combat side by side with the ABiH.

Given their humanitarian involvement , the foreign mujahedin initially enjoyed a degree of trust and had the support of the local population . Young men , even minors , joined them . ABiH soldiers deserted their own units to join the ranks of the foreign mujahedin , especially in order to benefit from their material support . Some of the mujahedin married girls from the region . Over time , however , the foreign mujahedin tried to promote their view of fundamental ORG . They ordered the NORP women to cover their heads , condemned the consumption of alcohol and insisted that the local NORP practice their religion . The foreign mujahedin burst into cafés and restaurants that served alcohol and if they saw a woman or young girl dressed in what they considered inappropriate fashion , they voiced their strong opposition . As a result of this rigid attitude , relations between the foreigners and the local population deteriorated . ”

Although he had never been given citizenship or a residence permit in GPE , on DATE the applicant obtained a national identity card on the basis of a forged decision of CARDINAL DATE granting citizenship to a certain PERSON ( that national identity card was revoked in DATE ) . In DATE the applicant married a citizen of GPE . They have CARDINAL children , born in DATE and DATE . It would appear that the applicant never returned to GPE after the DATE - CARDINAL war .

On DATE , during a random check , ORG of ORG found that the applicant was an illegal immigrant in GPE and placed him in ORG for deportation purposes . On DATE he lodged an application for judicial review through his counsel , but the application was ultimately rejected as out of time . The initial detention period was extended on a DATE basis . Each of the extension orders was then upheld by ORG ( “ the ORG ” ) and some of them by ORG . Appeals concerning the remaining extension orders are still pending before ORG .

On DATE ORG established that the applicant was a threat to national security , ordered his deportation and prohibited his re - entry for DATE . It relied on secret intelligence reports . On DATE ORG upheld the decision . On DATE ORG , having assessed the secret evidence , also upheld the deportation order . An appeal is pending before ORG .

On DATE the applicant claimed asylum . He maintained that NORP citizens who had joined the foreign mujahedin during the war in GPE and GPE were treated in GPE as suspected terrorists and were subjected to ill - treatment . He added that NORP authorities had visited his family and had enquired about him shortly after the opening of his deportation proceedings . The applicant could not explain , however , how those authorities had learned about his activities in GPE . The applicant submitted a statement by PERSON , a NORP human - rights activist , asserting that a certain ORG had been sentenced by a NORP military tribunal to CARDINAL GPE imprisonment for having fought in the war in GPE .

On DATE ORG interviewed the applicant with the help of an interpreter since the applicant did not speak any of the official languages of GPE . It also had regard to reports of ORG , ORG on GPE , which mentioned many cases of ill - treatment meted out to suspected terrorists . The practices reported included hanging from the ceiling , threats of rape , administration of electric shocks , immersion of the head in water , beatings and cigarette burns . Allegations of ill - treatment were reportedly not investigated by the NORP authorities .

On DATE ORG refused the asylum claim . It held that it had not been shown that the applicant would indeed be treated in GPE as a suspected terrorist and that he therefore did not face a real risk of being subjected to ill - treatment . The statement concerning the situation of Mr PERSON was not admitted to the file because the applicant had failed to provide a translation into an official language of GPE . On DATE ORG upheld that decision . An appeal is pending before ORG .

On DATE the applicant lodged an application for interim measures with ORG asking that his deportation be stayed pending ORG decision on the merits of the case .

Removal directions for DATE at TIME , issued on DATE , were served on the applicant on DATE at TIME The applicant immediately applied for interim measures with the ORG and the President of the Fourth Section of the ORG granted an interim measure DATE at TIME ( see paragraphs CARDINAL above ) .

On DATE ORG refused the applicant ’s application for interim measures . The decision was notified to the applicant on DATE .

The applicant is still in ORG .

LAW DATE ( Zakon o zaštiti tajnih podataka , ORG nos . CARDINAL and CARDINAL ) entered into force on DATE . LAW provides that the judges of ORG and ORG have access to all levels of secret data without any formalities ( such as security clearance or special authorisation ) , if such access is required for exercising their duties .

LAW DATE ( Zakon o kretanju i boravku stranaca i azilu , Official Gazette of GPE no . CARDINAL ) entered into force on DATE . Section CARDINAL thereof provides that a refugee is an alien who , owing to a well - founded fear of being persecuted for reasons of race , religion , nationality , political opinion or membership of a particular social group , is outside his or her country of nationality and is unable or , owing to such fear , is unwilling to avail himself or herself of the protection of that country , or a stateless person , who , being outside the country of former habitual residence , is unable or , owing to such fear , is unwilling to return to it . The same provision defines a person eligible for subsidiary protection as an alien who does not qualify as a refugee but in respect of whom substantial grounds have been shown for believing that he or she would face a real risk of the death penalty or execution , torture or inhuman or degrading treatment or punishment in the country of origin or in the country of habitual residence , or there is a serious , individual threat to a civilian ’s life or person by reason of indiscriminate violence in situations of international or internal armed conflict , and who is unable , or , owing to fear , is unwilling to avail himself or herself of the protection of that country .

The principle of non - refoulement is incorporated in LAW , which reads as follows :

“ An alien shall not be returned or expelled in any manner whatsoever to the frontiers of territories where his or her life or freedom would be threatened on account of race , religion , nationality , membership of a particular social group or political opinion , regardless of whether or not the person concerned has been granted international protection . The prohibition of return or expulsion ( non - refoulement ) shall also apply to persons in respect of whom there is a reasonable suspicion for believing that they would be in danger of being subjected to torture or other inhuman or degrading treatment or punishment . An alien may not be returned or expelled to a country where he or she is not protected from being sent to such a territory either . ”

Pursuant to section CARDINAL of the Act , an alien whose claim for international protection has been refused will nevertheless be granted leave to remain on humanitarian grounds , if his or her removal would breach the principle of non - refoulement . However , the alien concerned must be placed in detention if it has been established that he or she constitutes a threat to public order or national security .

An appeal against a deportation order suspends deportation ( section CARDINAL of that Act ) . A claim for international protection and an application for judicial review against a refusal of such a claim equally suspend deportation ( sections CARDINAL , CARDINAL ) and CARDINAL of that Act ) . Pursuant to section CARDINAL of that Act , once an alien has become expellable , removal directions are issued within DATE . An appeal against removal directions does not suspend deportation .

Pursuant to section CARDINAL(CARDINAL)(b ) of that LAW , an alien must be detained if it has been established that he or she constitutes a threat to public order or national security . Sections CARDINAL ) and CARDINAL of that Act provide that an initial detention order is valid for DATE , but it may be extended any number of times for DATE at a time . The total period of detention , however , may exceed DATE only in exceptional circumstances , such as if an alien prevents his or her removal or if it is impossible to remove an alien within DATE for other reasons .

The General Framework Agreement for Peace , which put an end to the DATE - CARDINAL war in GPE , was initialled at a military base near GPE , GPE , on DATE and signed in GPE , GPE , on DATE . It entered into force on the latter date .

Pursuant to LAW CARDINALA to that Agreement , all foreign forces , including individual advisors , freedom fighters , trainers , volunteers , and personnel from neighbouring and other GPE , irrespective of whether they were legally and militarily subordinated to any of the local forces , had to be withdrawn from GPE by DATE .

As to the situation in GPE before the recent change of regime , see PERSON v. GPE [ ORG ] , no . CARDINAL , § § DATE , CARDINAL DATE .

ORG of ORG has recently looked at the situation in GPE after the change of regime ( document no.CARDINAL of DATE ) . The pertinent part of the explanatory memorandum reads as follows :

“ CARDINAL . For DATE after the revolution of DATE , the political situation in GPE remained very unstable . The first provisional government , formed by the former Prime Minister PERSON on DATE with the participation of representatives of the ‘ legal’ opposition parties ( the few political formations that existed under the former regime ) and independents , succeeded in making a number of decisions tending towards democratisation . But that government soon found itself under pressure from the demonstrators , who demanded the resignation of ministers who had served under PERSON .

At the same time , the political forces close to the former regime , from PERSON ORG ) and the security services , tried to stir up trouble in the country in order to shift the transition process towards a new authoritarianism under the guise of ‘ PERSON political liberalisation .

Faced with these attempts , the elements in favour of democratic change , particularly the unions and the active members of civil society , continued to exert pressure on the provisional government through demonstrations . They also began to form a ORG , which demanded the calling of a constituent assembly and the dissolution of all institutions inherited from the PERSON era , namely ORG , the ORG and the political police .

At DATE , the CARDINAL ORG passed a law allowing the Interim President , PERSON , to govern by legislative decree . ORG was then suspended and dissolved . Moreover , on DATE the Interim President issued a legislative decree declaring an amnesty for all political prisoners .

Among the main decisions of LOC should be noted the banning of the old ruling party , the ORG , as well as the establishment of a commission to reform texts and institutions which was supposed to prepare the democratic transformation of the country .

Mention should also be made of the dissolution of ORG ( which it would be more accurate to call the ministry of propaganda and censorship ) and a degree of liberalisation of the media . Reform of the press still remains to be carried out , however . Indeed , we have been informed that non - governmental organisations ( NGOs ) encounter problems if they want to obtain radio frequencies .

On DATE , the second government presided over by former Prime Minister PERSON was forced to resign as a result of pressure from the protesters . The new transition government , headed by Mr PERSON , had no members who had been close to the PERSON regime and positioned itself as a cabinet of technocrats whose objective was to guarantee calm and stability during the transition period .

On DATE , the Interim President set CARDINAL DATE as the date for elections to ORG by direct universal suffrage according to a new electoral code . A specific body called ORG NORP Transition was set up to prepare the elections to ORG . Mr PERSON , former ORG , Political and ORG , who had resigned from ORG in DATE and was an opponent of the PERSON regime , was appointed president of the new body .

ORG , which is composed of CARDINAL members , many of whom are representatives of the political world and civil society , as well as professional lawyers , prepared and submitted to the government in DATE draft laws on the organisation of the elections and on the electoral commission .

In addition , CARDINAL other independent commissions of inquiry were set up in order to shed light on corruption , the misappropriation of funds by the former regime and abuses committed by the security forces during the events of DATE .

On DATE , the Minister for the ORG announced the dissolution of ORG and the political police .

There now seems to be relative , if fragile , political and institutional stability in GPE , enabling the provisional authorities to be fairly optimistic about the possibility of preparing the elections . The authorities have , however , let it be known that they may be postponed if all the conditions for a ballot that complies with democratic standards are not met .

The fragile nature of the stability was demonstrated by the events of CARDINAL May , which were provoked by statements by the former NORP Minister of the ORG , PERSON , who announced a ‘ military coup d’état’ was being prepared in the event of the NORP winning the elections . The government condemned these statements , calling them an attack on public order . The demonstrations that followed this incident turned into a riot , with young NORP demanding the resignation of the transitional government and ‘ a new revolution’ . The police had to use teargas and then weapons in order to quell the riot . Several shops and houses were looted . On DATE , the authorities introduced a curfew in GPE . CARDINAL people were arrested . The curfew was lifted on DATE . ”

On DATE , in conclusion of his visit to GPE undertaken on invitation of the Government , PERSON , the UN Special Rapporteur on torture and other forms of cruel , inhuman , degrading treatment or punishment , delivered the following statement :

The interim Government has undertaken a series of positive steps , including , considering reforming the ORG security apparatus and dismantling the so - called political police , initiating security sector reforms , reviewing the national legislation in line with international standards , including inter alia removing legal obstacles to reopening the cases of homicide and torture of the past , dismissing a number of high- and mid - ranking officials from ORG and ORG . I am also heartened by the discussions about the establishment of transitional justice mechanisms to address the legacy of past abuses . Encouragingly , the ORG has established CARDINAL advisory commissions .

I was told by officials that the practice of torture and ill - treatment has decreased following respective instructions issued by the officials of the security services . This I realised is true as far as the notorious and endemic practice of torture committed during the PERSON regime is concerned . However , I have heard credible testimonies regarding beatings of detainees upon arrest or within TIME of pre - trial detention ( garde a vue ) as well as during interrogation . Such episodes reflect the fact that old habits of police agents are not easily eradicated . Whether they are isolated or more frequent , beatings inflicted as a form of punishment or intimidation reflects complete disrespect for the presumption of innocence and the dignity of persons suspected of crimes . For that reason , every single act of torture is intolerable and elicits the obligation of the ORG under international law to investigate , prosecute and punish it . I heard testimonies according to which the safeguards during arrest and detention , such as rules governing warrant , compulsory medical examination upon arrest and transfer , notification to the family , access to a lawyer , interrogation in the presence of witnesses , as well as the right against self - incrimination were not respected in practice . Sadly , some of those testimonies were about events that have taken place after the January CARDINAL Revolution .

For example , I learned that in DATE the police reacted heavy - handedly to a demonstration by scores of youths . Riot police clashed with protesters and representatives of the media . I heard allegations of arbitrary arrest , and beating , of a group of young people that included CARDINAL minors . Together with CARDINAL adults , they were arbitrarily detained and taken to a detention centre without any access to a lawyer or notification to their families despite clear provisions in the NORP law regarding juvenile criminal law and procedure they were set free at TIME in one of the most dangerous areas in GPE . During TIME of detention they were forced to kneel and remain in uncomfortable positions . I welcome the initiative of ORG to issue a statement apologising to ‘ journalists and citizens involuntarily ORG and to open an inquiry into these incidents . This goes on to suggest that riot police and law - enforcement bodies engage in ill - treatment and excessive use of force to hold situations under control .

Given the lack of effective safeguards during arrest , persons deprived of their liberty are extremely vulnerable to torture and ill - treatment , moreover , given the legacy of abusive treatment by law - enforcement agents in the past , the lack of sufficiently speedy investigations into allegations of torture and ill - treatment , as well as the use of prosecutions affecting public officials , it can not be said that the culture of impunity no longer prevails , even though the current authorities have undoubtedly and sincerely pledged to respect the law . I have received several allegations of being kicked , beaten and burned with cigarettes . Many of these cases were supported by forensic medical evidence .

I learned from ORG that from DATE to DATE , there were CARDINAL criminal convictions against law - enforcement and prison officials for acts of torture and ill - treatment out of CARDINAL prosecutions initiated . According to NORP law , anyone who claims to have been subjected to torture can file a complaint either with officers of LAW or the Prosecutor . These mechanisms are inadequate as the complaint is essentially addressed to the same body that is alleged to have perpetrated the ill - treatment . Moreover , under NORP legislation , judges are not obliged to exclude any evidence or statements obtained under torture , despite the fact that , as a party to the CAT , GPE is internationally obliged to exclude such evidence . This inevitably creates an environment conducive to impunity .

Admissibility of confessions is left to the discretion and appraisal of the judge in accordance with Articles CARDINAL and CARDINAL of LAW . I welcome the initiative of ORG to amend the definition of torture contained in LAW in order to bring it in full conformity with the definition of LAW CAT and to provide for penalties reflecting the severity of the offense . I also support an initiative to amend the laws to ensure that no statement obtained through torture shall be admitted as evidence in judicial proceedings against the defendant , except in a case presenting torture and to show that the statement was made .

It is my understanding that several agents of security forces attached in the past to the Presidency and to ORG have not been removed even though they are thought to be at the heart of the serious violations of human rights that took place in the past .

The conditions of prisons and detention centres visited vary from being adequate to unsatisfactory as far as hygienic conditions , availability of medical assistance , access to telephone , and the length of family visits are concerned . Medical centres although available , do not seem to be always and adequately equipped . Dental and psychiatric assistance do not presently exist in the detention centres visited .

As far as the investigation launched into the past allegations of torture and recent abuses are concerned , I welcome the establishment of the fact - finding Commission , while recognising that its function is complementary to judiciary and should be clarified . I heard an explanation about the thorough and comprehensive way in which it has approached its mandate . However , I have learned that the number of prosecutions and initial judicial inquiries related to torture and disproportionate use of force remain low , despite the fact that the ORG ’s work does not substitute the role of prosecutors and judges . The slow pace of investigation and general lack of clear signals that these cases are seriously considered provokes frustration and anger among victims and general public . It is encouraging to learn that preliminary monetary compensation has been offered to victims and their families of DATE and DATE events . It remains unclear how the amount of compensation was defined as adequate and whether any measures are undertaken to provide the victims and their families with rehabilitation services .

I welcome the initiative of the interim Government to release political prisoners and prisoners of conscience ; and to grant conditional release on a case by case basis to those convicted for security related offenses . Many , if not most , of these were convicted in unfair trials , so amnesties and pardons are a partial remedy to the violations they have suffered .

I would like to welcome the commitment expressed by all levels of the Government regarding the abhorrence of torture and its determination to eradicate it ... ”

On DATE , at the conclusion of his official follow - up visit to GPE , the United Nations Special Rapporteur on human rights and counter - terrorism , PERSON , gave the following statement :

Since my last visit to GPE in DATE , the world has witnessed how the negation of human rights by oppressive regimes , including under the pretext of countering terrorism , can bring together a critical mass of people from very different walks of life to pursue their aspirations for a free and NORP society and a Government that respects human rights . GPE has become a symbol of this lesson .

My mandate focuses on the protection of human rights while countering terrorism . In this context I have seen initial steps that indicate a break with GPE ’s past . I was pleased to hear that many of my interlocutors confirm that the abusive anti - terrorism law of DATE has not been used since the events of DATE , including against the NORP people that demanded change . However , in FAC I learned that individual judges sometimes still order persons detained under the DATE law . This now mostly dormant law did not do what it was supposed to do . It did not provide more security to the NORP people , but was used as a tool of oppression against any form of political or other dissent . ORG has acknowledged this by adopting an amnesty law covering those who were convicted or held under this law . In order to provide the NORP people with the security they deserve , I offer the assistance of my mandate to replace the DATE law with a proper legislative framework which regulates GPE ’s anti - terrorism efforts in line with international conventions and protocols on countering terrorism , while fully respecting human rights and fundamental freedoms . The global threat of terrorism is real and can only be responded to through properly targeted and lawful measures , instead of using the notion of terrorism to suppress dissent .

In my previous report I expressed grave concern about the activities of various entities of the security apparatus , and the secrecy and impunity in which they operated . My report singled out the Directorate for State Security as a crucial entity that was responsible for activities of torture and arbitrary and even secret detention . I commend therefore the abolishment of this entity by ORG . However , in my previous report I also highlighted the lack of publicly available information on several security organs of ORG . This secrecy was an important element that contributed to the shield of impunity under which these actors could operate . All security ORG functions and powers must be regulated by publicly available laws . Such transparency avoids not only the creation of myths about what these agencies do , but also ensures accountability of these agencies if they commit illegal acts . In this context I have noted statements that the ‘ political police’ in GPE has been abolished . Such a ‘ police’ did not exist in the law , but it was used as term by the public , and now also by officials , to describe those elements in the security organs related to ORG that were responsible for cracking down on political and human rights activists and other dissent .

Changes in the way GPE ’s security organs operate should not be limited to slogans , but should result in concrete measures . The first steps have been taken to establish accountability for those who attacked the demonstrators in DATE . I welcome this positive development , but want to stress that in order to look truly forward towards a new GPE , it has to come to terms with dark remnants of its past . During my first visit in DATE the existence of secret facilities in the LOC of ORG was flatly denied . This time officials at ORG agreed to show me the former secret detention facilities . However , some officials still denied the use of Ministry offices as interrogation and torture rooms . I learned that until now CARDINAL security officials have been arrested , QUANTITY persons in the highest ranks prosecuted , and CARDINAL officials forced to retire , or went into retirement voluntarily . GPE should continue to investigate ex officio allegations of torture and illegal detention , often committed under the pretext of the fight against terrorism . Investigating , prosecuting and trying those responsible for the crimes in question can also help rebuilding trust between the population and the security forces in the country .

While I commend GPE ’s decision to ratify LAW , LAW , and LAW of ORG , I must emphasise that these promises turn into real rights only when implemented by depositing the international instrument of accession . Further , I call for rapid measures to strengthen the independence of the judiciary which as of DATE has not lived up to its task to secure compliance with the law , including human rights . I was also disappointed to learn that the most important safeguard against abuse in police custody , effective access to a lawyer of one ’s own choice from the moment of arrest , including presence in every interrogation , is not yet in place .

These are the preliminary findings of my follow - up mission . A full report will be presented to ORG in DATE ... ”


CASE OF DADIANI AND MACHABELI v. GEORGIA

Violation of Article 6 - Right to a fair trial (Article 6 - Enforcement proceedings;Article 6-1 - Reasonable time)

Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Josep Casadevall;Kristina Pardalos;Nona Tsotsoria

The applicants , PERSON and Mr PERSON , were born in DATE and DATE respectively and live in GPE . The second applicant is the first applicant ’s nephew . The first applicant ’s mother was deprived of her land and other assets by the NORP authorities in DATE .

In DATE the applicants brought an action against the relevant local authority , seeking restitution of their ancestral lands . In support of their claim , the applicants submitted archives confirming their ancestor ’s title to the claimed land and , as a legal basis , referred to general rules on the protection of property and inheritance contained in LAW , the LAW and the international human - rights treaties ratified by GPE .

In a judgment of DATE , the ORG established the ORG joint ownership of land situated in the village of GPE . The land was officially identified as “ plot no . CARDINAL ” . The defendant local authorities did not lodge an appeal and the judgment became binding .

On DATE the applicants’ lawyer obtained from ORG the necessary enforcement writ , the relevant part of which read as follows :

“ PERSON and PERSON are hereby recognised as ... the co - owners of plot no . CARDINAL in the village of GPE . ” ...

On DATE the applicants , acting through their lawyer , submitted a copy of the enforcement writ together with the final judgment of DATE to ORG for enforcement . In a letter of DATE , the registrar replied that it was not possible to register the land in the ORG name , as their documentation was incomplete . The lawyer was found to be at fault for the fact that the final judgment neither indicated the size of plot no . CARDINAL nor specified its category : agricultural or non - agricultural . The lawyer was further invited to submit a copy of his identity document , the authority form proving his right to represent the applicants , the original enforcement writ and the cadastral plan of the land in question .

The applicants maintained , relying on the billing information from the lawyers for the relevant period of time , that after receipt of the letter of CARDINAL DATE the lawyers , acting on their behalf , had visited ORG on several occasions and voiced their concerns regarding the failure to enforce the judgment . They claimed , inter alia , that they were not in a position to produce an amended final court decision . In reply , ORG refused to register plot no . CARDINAL for various reasons .

The judgment of DATE still remains unenforced .

On DATE the applicants lodged another action claiming , on the same legal basis , ownership of plot no . CARDINAL , adjacent to plot no . CARDINAL . The action was registered by ORG on DATE .

According to the applicants , the examination of their second action has not started yet .

The relevant domestic law and practice as regards the restitution of property has been described in the case of Teimuraz Andronikashvili v. GPE ( no . CARDINAL/CARDINAL , DATE ) and PERSON and PERSON v. GPE ( no . CARDINAL , § § CARDINAL and DATE , DATE ) .

ORG is a legal entity governed by public law established under ORG . CARDINAL of its main functions is to register ownership title and other related rights over real property for the purpose of their recognition and verification . ORG is responsible , among other things , for the creation and maintenance of cadastral data on real property .

Under LAW ( b ) of LAW , the registrar was entitled to request the submission of any document necessary for land registration purposes . The interested party had to comply with the registrar ’s request immediately .

Article CARDINAL § CARDINAL of the Civil Code provides that damage done to an individual by either negligence or deliberate misconduct of a public servant must be compensated by the ORG .

Under LAW , the non - execution of a judicial decision constitutes an offence :

“ The non - execution of a binding judicial decision , or other judicial decision , or the obstruction of its execution by the ORG , government or local - government officials , or by the executives of a corporation or other organisations [ shall be punished ] ... ”

Pursuant to LAW ( g ) of LAW of GPE , the Code does not apply to those activities of the executive that are related to the enforcement of final court judgments .

In accordance with LAW of LAW , a complaint may be filed against any action of an administrative agency pursuant to the procedure prescribed for filing a complaint in respect of an administrative legal act .


CASE OF UZKURELIENE AND OTHERS v. LITHUANIA

No violation of Art. 6-1;No violation of P1-1

The first applicant is PERSON , born in DATE and living in GPE . The second applicant is Mr PERSON , born in DATE and living in the LOC area in the PERSON region . The third applicant is Mr PERSON , born in DATE and living in PERSON . The fourth applicant is PERSON , born in DATE and living in the LOC area .

The applicants are brothers and sisters . Before the NORP occupation of GPE in DATE the applicants ' father owned QUANTITY of land ( “ the original land ” ) . The land was nationalised by the NORP authorities in DATE . Following the restoration of NORP independence in DATE , the applicants became entitled to a claim in regard to their late father 's land under LAW ( “ the LAW ” ) .

On DATE the applicants requested that compensation in land be given to them in accordance with the Act .

On DATE the applicants changed their position , requesting that the original land be returned to them in kind . By letter of the administrative authorities of CARDINAL DATE the applicants were informed that part of the original land ( QUANTITY ) had already been allocated to a third person , PERSON , by decision of ORG DATE . The applicants were informed that that part of the land could thus not be returned to them .

On DATE the applicants applied to a court , requesting that the decision of DATE be quashed . On DATE the FAC rejected the applicants ' action . On DATE ORG rejected the applicants ' appeal against that judgment .

On DATE ORG refused to grant leave for a cassation appeal .

On DATE the applicants brought a fresh court action , requesting the return of the original land . On DATE ORG rejected the applicants ' action . On DATE ORG rejected the applicants ' appeal against that decision . The applicants submitted a cassation appeal to ORG .

On DATE ORG quashed the lower decisions , returning the case for a fresh examination at first instance .

On DATE ORG again rejected the applicants ' action . On DATE ORG upheld the first instance judgment . The applicants submitted a cassation appeal to ORG .

On DATE ORG adopted a final judgment whereby it quashed the decisions of DATE and DATE . ORG concluded that the authorities and the lower courts had been responsible for the delays in restoring the applicants ' rights under LAW . It held inter alia :

“ From the material in possession it appears that the plaintiffs submitted a request to restore their property rights on DATE . Pursuant to LAW ] , a decision on the request must have been adopted within DATE from DATE . ... [ The ] plaintiffs ' right to an effective remedy was [ therefore ] violated . ...

The plaintiffs had submitted enough evidence [ enabling the administrative authorities ] to adopt a decision on restitution of their property rights , even more so as the case - file contains no evidence that other persons claim restitution of property rights in regard to the land which belonged to the plaintiffs ' father . ...

Having regard to the fact that the plaintiffs ' property rights have not been restored since DATE ... [ further litigation ] would breach the plaintiffs ' rights guaranteed by ORG and CARDINAL of the Convention ... ”

In the judgment of CARDINAL DATE ORG ordered that the PERSON regional administration “ take a decision to restore the [ applicants ' ] property rights to the land which belonged to [ their father ] prior to the nationalisation ” .

With respect to the applicants ' claim about the allocation of part of the original land ( QUANTITY ) to FS , ORG noted that in their original application for restitution of their property rights the applicants had asked for compensation , not for return of the original land , and that they had changed their claim only on DATE , i.e. DATE following the authorities ' decision of DATE to allocate the impugned portion of land to FS . ORG concluded that thus the applicants could not have this part of the original land returned to them . It also noted however that the applicants were entitled to compensation for the impugned portion of land in accordance with the provisions of the LAW .

On DATE the PERSON regional administration made an offer to the first applicant to afford her compensation in land for QUANTITY of her late father 's former land that could not be returned in kind . The necessary formalities for the transfer of property rights to the first applicant have not yet been finalised as she did not reply to a number of the administration 's letters requesting her to sign the relevant papers .

By a decision of the regional administration of DATE , the second and third applicants were returned in kind QUANTITY of the original land .

On DATE the administration allotted the fourth applicant QUANTITY of land in compensation for the equivalent part of the original land that could not be returned in kind .

On DATE the regional administration made an offer for the fourth applicant to be allotted a further QUANTITY of land in compensation . On DATE and CARDINAL DATE the regional administration made an offer to compensate the fourth applicant for a further QUANTITY hectares of her father 's former land . The formalities for the transfer of property rights to her in this respect have not yet been finalised as she did not reply to a number of the administration 's letters requesting her to sign the relevant papers .

On DATE the regional administration made an offer to the second applicant to compensate in land for QUANTITY of the original land that could not be returned to him . The formalities for the transfer of property rights to him have not yet been finalised as he did not reply to a number of the administration 's letters to sign the relevant documents .

On DATE all CARDINAL applicants were returned jointly a further QUANTITY of the original land .

On DATE the regional administration afforded the first and the third applicant a further compensation in land for QUANTITY of the original land that could not be returned in kind .

The Restitution of Property Act ( Nuosavybės teisių ... atkūrimo įstatymas ) ( of DATE , amended on numerous occasions ) provides for CARDINAL forms of restitution : CARDINAL ) the return of the property in certain circumstances , PERSON ) compensation in other cases ( compensation can be made in land or money ) .

On DATE ORG examined the issue of compatibility of the LAW with the domestic laws on restitution of property rights . In its decision ORG held inter alia that possessions which had been nationalised by the NORP authorities since DATE should be considered as “ property under the de facto control of the ORG ” . ORG also stated : “ The rights of a former owner to particular property have not been restored until the property is returned or appropriate compensation is afforded . The law does not itself provide any rights while it is not applied to a concrete person in respect of a specific property item . In this situation the decision of a competent authority to return the property or to compensate has such a legal effect that only from that moment does the former owner obtain property rights to a specific property item . ” ORG also held that fair compensation for property which could not be returned was compatible with the principle of the protection of property .

In decisions of DATE and DATE the ORG emphasised that the notion of restitution of property rights in GPE essentially denoted partial reparation . In this respect ORG noted that the authorities of GPE as a re - established ORG in DATE were not responsible for the NORP occupation DATE , nor were they responsible for the consequences of that occupation . ORG held that since DATE many private persons had bought , in accordance with the legislation applicable at the material time , various property items which had been previously nationalised . The denial of these factual and legal aspects was impossible , and the domestic legislation on restitution of property rights duly took into account not only the interests of the former owners , but also the interests of private persons who had occupied or purchased the property under lawful contracts .

On DATE ORG also said that the choice by ORG partial reparation principle was influenced by the difficult political and social conditions in that “ new generations had grown , new proprietary and other socio - economic relations had been formed during DATE of occupation , which could not be ignored in deciding the question of restitution of property ” .

On DATE ORG ruled that a person who qualifies for compensation for property which can not be returned is entitled to choose the form of compensation ( land or money ) by giving written permission for the authorities to proceed with the decision . ORG also held that the executive authorities have discretion to decide on appropriate compensation in each case , but that a person is entitled to contest that compensation by way of a court action .

Under LAW ( all versions until DATE ) , the authorities were required to obtain the written permission of the person concerned before they determined the actual compensation for the property which could not be returned .

Pursuant to the version of ORG as amended from DATE , the executive authorities are now entitled to decide the question of compensation without the person 's approval . That decision can be appealed to a court in accordance with the procedure established in LAW . No stamp duty is required to file such an action .


Violation of Article 6 - Right to a fair trial

Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Volodymyr Butkevych;Zdravka Kalaydjieva

The applicant was born in DATE and lives in PERSON .

In DATE Mr Y. Z. , the applicant ’s acquaintance , issued the applicant with a power of attorney to represent his interests in connection with criminal proceedings instituted against several individuals , who had stolen his shoes and cash . In this capacity the applicant participated in Mr Y. Z. ’s discussions with relatives of Ms Y. GPE , CARDINAL of the suspects , who were seeking to negotiate a settlement . Subsequently the relatives of Ms Y. ORG accused Mr Y. PERSON and the applicant of extorting money from them to pay the law enforcement authorities to discontinue proceedings against Ms Y. V.

On DATE criminal proceedings were instituted against Mr Y. Z. on suspicion of soliciting a bribe . These proceedings were joined with those concerning the larceny of his possessions .

Within the framework of these proceedings , on DATE the applicant was charged of being an accomplice to Mr Y. Z. On an unspecified date he was placed under an undertaking not to abscond .

In DATE the investigation was completed and the applicant was committed to trial before ORG ( PERSON міський суд ) .

On DATE ORG ordered a forensic expert assessment at the applicant ’s request and suspended the proceedings pending its outcome . The court further remanded the applicant in custody , finding that he might interfere with the investigation .

On DATE the expert assessment was produced to the court .

On DATE the Uman Court convicted the applicant and Mr Y. Z. of fraud and soliciting a bribe , sentencing the applicant to CARDINAL years’ imprisonment and exempting him from prison under amnesty . On DATE the applicant was released from detention under an undertaking not to abscond .

On DATE ORG ( GPE суд GPE області ) quashed the judgment and remitted the case for fresh consideration .

On DATE the Uman Court remanded the applicant in custody .

On DATE the Uman Court remitted the case for additional investigation and released the applicant under an undertaking not to abscond . The prosecution appealed .

On DATE ORG quashed the ruling of CARDINAL DATE and remitted the case to the first - instance court for consideration on the merits .

On DATE the ORG convicted PERSON Y. ORG and the applicant of fraud and soliciting a bribe , sentenced them to CARDINAL years’ restriction of freedom and exempted them from prison under amnesty .

On DATE ORG quashed the judgment and remitted the case for additional investigation , citing numerous procedural omissions in the course of investigation and trial . In particular , the court pointed out that no formal criminal proceedings had been instituted against the applicant and so the charges brought against him within the framework of proceedings against Mr Y. Z. were unlawful . It further found that the applicant had been placed in custody without sufficient grounds , that the trial court had failed to take due note of several of his requests and that the case file contained unsigned procedural documents . On DATE the court issued a separate ruling bringing the above - mentioned omissions to the attention of ORG and the President of ORG . The court ordered that the applicant remain under an undertaking not to abscond .

On DATE the investigative authorities suspended the investigation concerning the larceny of Mr Y. Z. ’s possessions on account of inability to determine the identity of the perpetrators . By DATE no further procedural actions had ensued . It is unclear whether the applicant has been released from the undertaking not to abscond .


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

The applicant , Mr Ousman Mbengeh , is a NORP national who was born in DATE and lived , at the time of lodging his application with the ORG , in GPE . He is represented before the ORG by Ms PERSON , a lawyer practising in GPE .

and as they appear from the documents on the file , may be summarised as follows .

The applicant arrived in GPE on an unspecified date . On DATE he married a NORP citizen , who gave birth to their son in DATE . The CARDINAL of them lived together until the applicant ’s deportation to his country of origin , GPE , in DATE .

In DATE the applicant had obtained a temporary residence permit based on the marriage . In DATE he was granted a permanent residence permit .

On DATE the ORG ( käräjäoikeus , tingsrätten ) convicted the applicant of an aggravated narcotics offence for having dealt in heroin during the period from DATE to DATE and sentenced him to CARDINAL years’ imprisonment . The conviction was upheld by ORG ( hovioikeus , hovrätten ) on DATE although the sentence was reduced to CARDINAL years’ imprisonment . On DATE ORG ( korkein oikeus , högsta domstolen ) upheld the conviction and sentence .

On DATE ORG ( ulkomaalaisvirasto , utlänningsverket ) decided to deport the applicant owing to his criminal activity and issued a DATE refusal of entry to the GPE area . It considered that , through his criminal activity , he had endangered public order and safety . ORG noted that , according to practice , aggravated offences usually resulted in the issuing of a refusal of entry which would normally remain in force until further notice . However , having regard to the applicant ’s family ties to GPE , it considered that a refusal of entry for DATE was appropriate .

On DATE ORG ( hallinto - oikeus , förvaltningsdomstolen ) quashed the decision because of the applicant ’s long stay in GPE and his family ties .

ORG appealed . On DATE ORG ( korkein hallinto - oikeus , högsta förvaltningsdomstolen ) , finding that the grounds for deportation were weightier than the applicant ’s family ties and his DATE stay in GPE , quashed ORG decision and upheld the deportation order . The case turned on the fact that the applicant had been dealing in very dangerous drugs for monetary gain and in the circumstances , the deportation and refusal of entry would not be in breach of LAW ( DATE ; yleissopimus lapsen oikeuksista , konventionen om barnens rättigheter ; SopS CARDINAL/CARDINAL ) .

On DATE the applicant was deported to his country of origin .

Section CARDINAL(CARDINAL ) of the then Aliens Act ( ulkomaalaislaki , utlänningslagen ; Act no . CARDINAL/CARDINAL ) provided , inter alia , that an alien convicted of a criminal offence which carried a sentence of DATE or more or an alien who repeatedly committed offences could be deported .

Section CARDINAL provided that when deciding on deportation regard must be had to all the relevant facts and the circumstances as a whole such as the duration of the stay , the relationship between a child and its parent and family and other ties to GPE . The nature of the offence within the meaning of section CARDINAL(CARDINAL ) was also relevant .

Under section CARDINAL a refusal of entry could be issued for a maximum period of DATE or until further notice .


Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment);Non-pecuniary damage - award

Anatoly Kovler;Elisabeth Steiner;Erik Møse;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Peer Lorenzen

The applicant was born in DATE and is currently serving a prison sentence in the PERSON region .

In DATE and DATE the applicant was convicted of a number of criminal offences and sentenced to CARDINAL years’ imprisonment . He has served his sentence in prisons in the PERSON region .

From DATE to CARDINAL DATE the applicant was admitted to the tuberculosis unit in the hospital attached to PERSON prison no . CARDINAL ( “ the hospital ” ) . On DATE the applicant was transferred to medical facility LIU-CARDINAL in GPE , in the PERSON region .

The applicant raised the following specific grievances concerning his medical history and state of health .

On an unspecified date the applicant was diagnosed with cervical spinal myelopathy accompanied by motor neuron impairment . In DATE he described his condition as follows . He could bend his left knee but his right knee only bent with severe pain . As a result , the applicant hardly ever moved and his leg muscles were atrophied . His right - hand fingers were crooked ; it was painful when he tried to straighten them . He suffered from severe pain in his right hand , left shoulder , small of the back , knees , neck , left foot and hip . His right - hand palm , back and right hip were covered with sores . He had sores on his right - hand fingers which suppurated .

During his admission and stay in the hospital from DATE to DATE the applicant was examined by neurologist PERSON applicant ’s medical records indicate that the applicant was bedridden and , for a period of time , communicated with hospital staff by handwritten notes . The neurologist recommended an MRI scan and early release from prison on health grounds . For unspecified reasons , no MRI scan was carried out . Early release was refused in DATE .

In DATE the applicant was examined by neurologist PERSON , who prescribed physical therapy , vitamin - based treatment , pain relief medication and non - steroidal anti - inflammatory drugs . It was also recommended that the applicant be examined by a rheumatologist and a trauma specialist ( see also paragraph CARDINAL below ) . X - rays of the right wrist joint and left knee joint were indicated .

It is unclear what acts of medical care were performed in relation to the applicant ’s myelopathy from DATE .

NORP In reply to a letter from the applicant ’s lawyer , in DATE L. , a neurologist at ORG , wrote to him advising that myelopathy was a chronic and slowly progressing disease , leading to gradual deterioration of the patient ’s condition with increased symptoms related to the motor function , level of awareness , the function of the pelvic organs and bedsores . The neurologist concluded that “ complex therapy was required in a specialised medical institution , including an electromyography ( ORG ) test DATE , irrespective of the treatment ’s effectiveness ” .

In DATE the applicant complained to the national authorities in relation to inadequate medical assistance rendered to him and poor conditions of his detention ( see paragraphs CARDINAL - CARDINAL below ) .

In DATE one of the above - mentioned neurologists examined the applicant and prescribed massage , medication and vitamins .

According to the applicant , he was not provided with any specific treatment ( medication or physical therapy ) in relation to his myelopathy . Any mention in his medical records of a refusal to receive myelopahyrelated treatment was forged . None of the refusals were written on a special form and none of them bore his signature , despite the requirements of national legislation ( see also paragraph CARDINAL below ) .

NORP Since DATE the applicant has suffered from frequent convulsions and has had difficulties in holding items in his hands .

In DATE the applicant was examined by neurologist PERSON , who made the following findings :

“ There is long - term and progressive post - traumatic damage to the lumbosacral plexus , which prevents active movement with the left leg . Damage to the lumbar spine and left leg prevents autonomous walking and results in a considerable reduction of autonomous movement . Thus , at the moment , the patient has a persisting dysfunction of the motor function of the left leg , impossibility of autonomous movement , dysfunction of the motor function of the right arm / hand ... The patient requires constant help and active treatment . Focus should be on physiotherapeutic procedures and medical rehabilitation ( electro - stimulation , anaesthetic / analgesic treatment ) . I recommend medication by PERSON compositum , Berlition and adequate nonsteroid anaesthetic / analgesic treatment and vascular medication with ORG and a course of Aktovegin ... A consultation with a trauma specialist and a rheumatologist is necessary to [ further ] adapt [ existing ] medical procedures . ”

Similar recommendations were made in DATE .

Since DATE the applicant has been suffering from tuberculosis , which became drug - resistant and affected by haemoptysis ( coughing up of blood ) in DATE . The applicant was prescribed medication and injections but refused them on numerous occasions because of acute negative side effects such as nausea . The applicant ’s medical records indicate that on several occasions medical staff talked to him about the need to continue treatment but to no avail .

On an unspecified date before his admission to hospital , the applicant underwent a gastrectomy , significantly reducing his stomach . The applicant has also had CARDINAL of his tongue removed , due to which his speech is impaired . In DATE the applicant weighed QUANTITY for QUANTITY in height .

The applicant has also suffered ( and continues to suffer ) from acute pain in the stomach area , the liver , the kidneys and from nausea . According to the applicant , he was not examined by a gastroenterologist or given any treatment . An endoscopy was carried out for the first time in DATE . On CARDINAL occasions it was not carried out , although the applicant had not made a valid refusal . No medication was provided to him .

NORP In DATE the applicant was given an electrocardiogram ( ECG ) test . No prior or subsequent tests or medication were provided , despite the applicant ’s acute and persistent heart pains . He was not examined by a cardiologist .

Since DATE the applicant has also suffered from enuresis ( urinary incontinence ) . It was recorded in DATE that the applicant had made verbal complaints to the unit supervisor about his treatment and had asked that his mattress be replaced because of a urine odour . His request was refused , as no smells were detected and the mattress was dry .

NORP Despite his liver pains , he was not examined by a hepatologist ; nor was he given any medication . He submitted that the latter was particularly important , given that he had received chemotherapy for his tuberculosis .

NORP In DATE the applicant was examined by an ophthalmologist . In DATE he was diagnosed with slight nearsightedness and retinal angiospasm . In reply to a complaint he made of deteriorating eyesight , in DATE it was recorded that no visual acuity test could be carried out in the cell and no treatment was required .

The applicant has lost most of his teeth . His remaining teeth and his gums are rotten and cause him pain . The applicant had CARDINAL consultations with a dentist ; no treatment was given following those consultations .

According to the applicant , no medical assistance has been provided to him DATE in particular , from DATE to DATE in relation to his above - mentioned conditions ( see also paragraph CARDINAL below ) .

A discharge certificate was issued on DATE . It is unclear whether the applicant remained in solitary confinement or was transferred to another part of the hospital . On DATE he complained to a neurologist of pain in his extremities and was prescribed medicine . He was also examined by a therapist and was given medicines for headache and abdominal pains . He was examined on DATE due to the worsening of his state of health and was given vitamins and medicines for intestinal disbacteriosis and colitis . DATE he was examined by an ENT specialist , on whose prescription he was given an iodine - based liquid to rinse his mouth with . On DATE he was examined by a dentist and an ENT specialist who confirmed a diagnosis of antritis . In DATE he was provided with a follow - up check - up and was told to continue the treatment .

The Government argued , with reference to the applicant ’s medical records , that on numerous occasions DATE the applicant had refused to be examined , to take medicines ( mainly tuberculosis related ) , to undergo medical examinations or to submit to laboratory tests . For instance , as could be seen from his medical records , the applicant had complained of pain in his body on DATE , pelvic pain on DATE and pain in his arms on DATE but had “ plainly refused to submit to an examination ” .

NORP In support of their statements , the Government relied on typed copies of the applicant ’s medical records for the period from DATE to DATE , medical reports ( медицинские заключения ) of DATE issued by the administration of prison no . CARDINAL , as well as on various certificates issued by the administrations of prisons no . CARDINAL and LIU-CARDINAL , their licences for providing medical care and documents confirming the qualifications of their medical staff .

The Government stated that the above documents were official documents submitted by duly authorised public officials in the performance of their official duties . These officials , by the nature of their functions , were aware of the fact that any false information could result in prosecution for abuse of power or forgery of official documents .

In DATE the applicant was admitted to the tuberculosis unit of the hospital attached to prison no . CARDINAL .

DATE the applicant was kept in various cells accommodating , at various times , CARDINAL people . In the first cell there was no mandatory ventilation . The cells were dirty , poorly heated , filled with unpleasant kitchen odours and infested with insects and rodents .

In DATE the applicant was transferred to another cell in which he was kept alone . The cell window was covered with newspaper , hindering access to natural light . The temperature in the cell and the adjoining shower room was often low .

Being unable to shout for help owing to the fact that part of his tongue was missing , the applicant was obliged to attract the hospital ORG attention by throwing items at the door or by knocking on his bedside table . The door to the cell was kept locked and was unlocked by prison officers at the ORG request .

The applicant needed assistance to use toilet and to wash himself . Once a month two detainees took him to the shower room and washed him . In addition , a hospital attendant brought a basin into the cell so that the applicant could wash his face . The applicant was provided with a piece of soap and a small roll of toilet paper once DATE .

The cell was filled with a urine odour because of the applicant ’s enuresis . According to the applicant , his request for a new mattress and more frequent cleaning of bed linen was refused . The food was of poor quality . The applicant was not provided with drinking water and had to drink tap water . He was not taken outdoors during his stay in the hospital .

The applicant was not visited by doctors or given medication after DATE . On DATE a prison doctor told him that he would soon be discharged from the hospital because he had completed his tuberculosis treatment and that further treatment would be of no use because the applicant was suffering from a drug - resistant form of the disease and his lungs were deteriorating .

Although he had been informed of his imminent discharge , the applicant was not transferred from the prison hospital . He was not examined by the doctors ; once DATE he received visits from hospital attendants who brought him food and water and cleaned his chamber pot . The doctors and nurses refused to examine him , claiming that he had been discharged and thus was not “ on the hospital ’s books ” .

The applicant submitted written statements from several detainees , who , however , had not been kept in the same cell(s ) . PERSON . described the general material conditions of confinement in the tuberculosis unit DATE . Mr PERSON described the conditions of his detention in the hospital in DATE and “ in and after DATE ” . Mr NORP and PERSON . stated that since DATE they had been kept in rooms measuring QUANTITY and accommodating CARDINAL people . They added that they had heard about the applicant ’s solitary confinement ; about his inability to move around and to take care of himself ; and that he had not been taken outdoors for a long time .

According to the ORG , the applicant had been kept alone under the constant supervision of CARDINAL hospital attendant and twentyfourhour assistance from on - duty staff had been available . At any moment the applicant could have asked to be helped by the attendant present . The applicant was able to access , alone or with assistance , a chamber pot or the toilet , which was QUANTITY from his cell . The toilet was equipped with a flushing cistern ; a sink was also made available there . The chamber pot was kept in the cell and was always cleaned after use . Bedding had been cleaned and a shower had been available once per week . As could be seen from the applicant ’s medical records , in DATE the applicant had not needed another mattress because he had not asked for it or because there had not been a urine odour in the cell . The cell had functioning mandatory ventilation and air was able to enter the cell through a window ventilator . The window provided access to natural light ; this window was properly glazed . Artificial light was also available in the cell . The heating system functioned properly , achieving a room temperature of QUANTITY on average . The applicant had been fed in accordance with the regulations concerning ill detainees . The applicant had been taken , on foot or in a wheelchair , to outdoor exercise CARDINAL times per day .

On DATE the applicant and his lawyer requested that criminal proceedings be initiated concerning inadequate medical assistance rendered to the applicant and poor conditions of his detention . They referred to LAW ( “ failure to provide medical assistance ” ) and LAW ( “ breach of sanitary and health regulations ” ) of LAW .

Subsequent events can be split into CARDINAL parallel sets of proceedings , in which the applicant was represented by a lawyer before the national authorities , including the courts .

On DATE an assistant to the PERSON town prosecutor supervising penitentiary facilities ( “ the town prosecutor ” ) examined the above complaint and issued a written opinion ( заключение ) stating that no action was required from the prosecutor under LAW of LAW ( see paragraph CARDINAL below ) . The town prosecutor approved the assistant prosecutor ’s opinion ; the applicant was informed accordingly .

The applicant brought court proceedings , challenging the opinion of CARDINAL DATE and the town prosecutor ’s refusal to take action . By a judgment of DATE ORG in PERSON held that this refusal was unlawful because the inquiry had not been thorough for the following reasons : the applicant ’s medical records had not been assessed ; no medical expert had been appointed ; the material conditions of the applicant ’s confinement in hospital had not been inspected ; the applicant and his counsel had not been heard ; no assessment had been made of the applicant ’s complaints concerning lack of outdoor exercise , the deplorable quality of food , insufficiency of hygiene items and the sanitary condition of the shower room and toilets .

In DATE an assistant town prosecutor issued a new opinion , again concluding that that no action was required from the town prosecutor under section CARDINAL of LAW . This decision was confirmed by the town prosecutor . However , in DATE for unspecified reasons the town prosecutor reconsidered his own decision and ordered an additional inquiry . In DATE the assistant prosecutor issued a new refusal , which was then confirmed by the town prosecutor .

The applicant brought court proceedings to challenge this refusal . By a judgment of DATE ORG held that the refusal had not been properly reasoned because only part of the procedural shortcomings identified in the court decision of DATE had been remedied in the resumed inquiry . The court held as follows :

“ The proper examination of the complaint relating to inadequate medical assistance within the penitentiary system required that an expert opinion should be sought from specialists unrelated to the penitentiary system ... The refusal under review contained no assessment of the complaints concerning chest and heart pain ; ... no assessment was made of the allegations concerning the lack of consultation with a cardiologist and the absence of any electrocardiogram ... The prosecutor ’s findings as to the quality of the food was based on ... reports , while no indication was made as to the method used , for instance lab tests . No assessment was made of the relevant logbooks . The assessment concerning sanitary installations , the alleged presence of rodents and insects , and lack of outdoor exercise was not thorough ... ”

In DATE the regional tuberculosis hospital examined the applicant ’s medical records at the request of ORG of ORG . The hospital considered that the applicant had been provided with adequate tuberculosis - related treatment in prison no . CARDINAL and that the effectiveness of this treatment had been adversely affected by the applicant ’s repeated refusals to take medicines and to comply with his ORG recommendations .

Also , CARDINAL people , apparently connected to the regional clinical hospital , examined the applicant ’s medical records and on DATE issued a short report concerning illnesses affecting the applicant ’s nervous system . The panel held as follows :

“ The treatment provided [ to the applicant ] was in full compliance with the applicable standards , in line with the diagnosis established in DATE and the recommendations issued by medical specialists in GPE . Since DATE the patient has been regularly supervised by neurologists from the regional hospital and medical institutions [ in ] GPE and GPE . The disease has developed gradually so that additional check - ups were necessary in the meantime . Conclusions : no cervical spine MRI scan has been carried out , despite a recommendation [ that one should be conducted ] after computer X - ray imaging ; no consultation by a neurosurgeon has been arranged ; no thioctic acid based medicine has been prescribed . ”

The town prosecutor asked ORG of ORG to carry out an inquiry regarding the medical care provided to the applicant in detention . The department ’s letter of DATE indicated that the department had carried out an “ independent ” inquiry involving unspecified “ out - of - staff ” leading medical professionals who had examined the applicant ’s medical records . They concluded as follows :

“ Treatment provided [ to the applicant ] in prison no . CARDINAL was in compliance with the standard treatment required for patients suffering from drug - resistant tuberculosis ... All relevant methods of treatment were used . The effectiveness of the treatment was affected by [ the applicant ’s ] repeated refusals to [ take his ] prescribed medicines , as confirmed by the medical records . Treatment of [ the applicant ’s ] somatic illnesses was fully compliant with the diagnosis and recommendations made by the ORG specialists in DATE . Since DATE the patient has been regularly supervised by neurologists from the regional hospital and medical institutions [ in ] GPE and GPE . The disease has developed gradually so that additional check - ups were necessary in the meantime . Conclusions : no cervical spine MRI scan has been carried out , despite a recommendation [ that one should be conducted ] after computer X - ray imaging ; no consultation by a neurosurgeon has been arranged ; no thioctic acid based medicine has been prescribed . ”

In his opinion of DATE , an assistant town prosecutor again considered that no action was required on the part of the prosecutor in reply to the applicant ’s complaint . The assistant town prosecutor held as follows :

“ The applicant has been admitted to hospital in relation to infiltrating pulmonary tuberculosis , as well as cervical spinal myelopathy affecting movement of the right arm and the legs ...

The main diagnosis ( tuberculosis ) has been confirmed by X - rays and bacteria analysis . The following medical acts were carried out : blood tests , an electromyography ( ORG ) test in DATE , GPE scanning in DATE ... As mentioned in the [ applicant ’s medical ] records , DATE [ the applicant ] refused to take medicines for [ treating his ] tuberculosis ... During his stay in the tuberculosis unit he was regularly examined by neurologist PERSON The latter explained that he had been supervising the patient since DATE .

As can be seen from the medical history : in DATE the patient was treated for posttraumatic plexopathy . He was given an ORG test , was examined by a specialist doctor and was diagnosed with osteochondrosis and discogenic radiculopathy ... He received vascular therapy , B - group vitamins [ and ] non - steroidal anti - inflammatory drugs .

In DATE the applicant was diagnosed with pulmonary tuberculosis and was treated in a tuberculosis unit . He was given an ORG test , a GPE scan and an X - ray . As a result , he was diagnosed with cervical spinal myelopathy ... radiculopathy [ and ] sciatic neuralgia affecting the movement of [ his ] left foot .

The patient was and is regularly examined by a neurologist . The [ doctor ’s ] recommendations included a course of vascular therapy , vitamin therapy and [ the applicant ] was instructed about the further intake of muscle [ neuromuscular ] relaxants ...

At present the patient ’s state of health is stable , he has been regularly examined by a neurologist but has refused to [ take the medicines prescribed for him ] in DATE and DATE . On several occasions he was examined by specialist medical professionals ( such as a surgeon , a therapist and a dermatologist ) but refused to be examined by a psychiatrist . At present , he is in section CARDINAL of the hospital in prison no . CARDINAL .

In order to assess the medical care afforded [ to the applicant ] , specialists from the regional department of ORG were asked to examine [ his ] medical records together with regional specialists . ”

Having cited the letter of DATE ( see paragraph CARDINAL above ) , the assistant prosecutor concluded that “ independent specialists [ had ] considered that the patient had been treated in full compliance with the relevant standards ” .

Concerning the material conditions of the applicant ’s confinement , the assistant prosecutor made the following findings :

“ The material in the file discloses that in DATE the prison received a favourable ( preventive ) epidemiological report . This report is valid until DATE ... In DATE section CARDINAL of the prison hospital was inspected ; [ the inspection ] did not disclose any violations of sanitary regulations . Moreover , in DATE repair works were carried out in the tuberculosis unit . Thus , in DATE it was not possible to inspect the sanitary conditions [ pertaining in ] the earlier period . Food provided to detainees complied with the relevant regulations concerning minimum rations for convicts . Food cooking and [ detainees’ ] diet were controlled by medical professionals together with on - duty officers . [ The applicant ] was given a special diet for ill detainees . He was also provided with the required hygiene items , which could be confirmed by his signatures in the logbooks . Clothes and bedding had to be submitted for laundering once per week and would be disinfected .

During the inquiry detainees T. , P. and PERSON were interviewed . Their testimony was not convincing , as they had been named by [ the applicant ’s ] lawyer . Detainees Kh . , PERSON and GPE were also interviewed and stated that the material conditions in the living premises of the tuberculosis unit , including food , had been acceptable ; cleaning had been regular . [ The applicant ] had been in the unit since DATE when the material conditions had been the same ; he had been given medication and had had regular check - ups . An attending assistant had been assigned to him .

Zo . and ORG . had not answered the summons and could not be interviewed .

The prison has a contract with a private company for disinfecting the LOC and eradicating rodents and insects . This work was done on a DATE basis . No complaints were made by detainees or staff .

Consequently , the arguments raised by the [ applicant ’s ] lawyers were examined during the additional inquiry and should be dismissed as unfounded . ”

The applicant sought judicial review of the refusal of CARDINAL DATE under LAW of the Code of Civil Procedure ( see paragraph CARDINAL below ) . The applicant argued that the report of DATE ( see paragraph CARDINAL above ) had not been “ independent ” and thorough because : there had been no information about the professional status and the medical specialities of the experts , who may or may not have been the report ’s signatories ; the applicant had not been examined by any of those individuals ; the report had contained no findings concerning the adequacy of the applicant ’s medical care in relation to his neurological illness , various ( liver , stomach and heart ) pains , eyesight or his dental care . Thus , a court - ordered forensic examination was indispensable .

By a judgment of CARDINAL DATE ORG in PERSON examined the applicant ’s complaint against the above refusal of CARDINAL DATE and rejected the complaint . The court considered that a public prosecutor was empowered to ensure that no inhuman or degrading treatment was inflicted on detainees . To comply with this function the prosecutor was empowered to carry out inquiries , which should result in reasoned decisions . Such an inquiry had been carried out DATE . In the court ’s view , the prosecutor had examined all relevant medical documents , including expert reports , and had interviewed a number of public officials , detainees , the applicant and his counsel . The court also held as follows :

“ A number of medical professionals were charged with the task of assessing the treatment provided to the applicant . An independent expert examination concluded that the applicable standards for treating tuberculosis had been respected ; the treatment had been affected by the applicant ’s repeated refusals , as recorded , to comply with the recommended course of treatment . The applicable standards of treating somatic diseases had been equally respected . From DATE the applicant had been supervised by neurologists ; no cervical spine MRI scan had been carried out , despite a recommendation [ that one should be conducted ] after computed X - ray imaging ; no consultation by a neurosurgeon had been arranged ; no thioctic acid based medicine had been prescribed .

As to the complaints concerning chest or heart pain , as indicated in the inquiry report , the applicant had been examined by cardiologists , had had an electrocardiogram test and had received treatment .

No sufficient argument was adduced by the applicant for commissioning yet another independent expert report . In any event , this argument had not been raised during the inquiry .

As to food , the applicant was given and continues to receive a special diet . The food control record indicates that [ his ] rations , their quality and quantity were in line with applicable instructions and standards .

As to sanitary installations , the competent authority has issued a report confirming the sanitary conditions [ were ] proper . It was established that in DATE significant repair works had been ongoing in the tuberculosis unit . Thus , it had been impracticable to inspect the units , the shower room or the toilet facilities to which the applicant had previously had access . The findings concerning the absence of rodents and insects in the detention facility had been made with reference to a valid contract for disinfection services , the current reports concerning the performance of the contract and due to the absence of any complaints from the [ facility ’s ] personnel or detainees . Hygiene items had been given to the applicant against his signature on a DATE basis . Clothing and bedding was and is disinfected and cleaned once per week .

In view of the foregoing , the court concludes that the DATE inquiry report and its conclusions were reasoned and thorough , and comply with the requirements of [ applicable ] legislation ” .

The applicant appealed . On DATE ORG upheld the judgment of DATE . It held as follows :

“ The applicant ’s arguments concerning the correctness of [ his ] medical diagnosis and the scope and correctness of [ his ] treatment were thoroughly examined and dismissed by the first - instance court . The latter ’s assessment was based on all available medical evidence , which had been received from , amongst other sources , sources unrelated to the penal authorities . ”

In the meantime , the applicant complained that no decision had been taken as to the institution of criminal proceedings , as requested . By a decision of CARDINAL DATE the regional prosecutor ’s office refused to institute criminal proceedings , considering there had not been the corpus delicti required under LAW and QUANTITY of LAW in the actions of the hospital ’s staff . On DATE the higher investigating authority quashed this decision , considering that it was necessary to interview the medical staff of the detention facility .

On DATE the investigating authority issued a new refusal to institute criminal proceedings for lack of a criminal offence . On DATE ORG in PERSON dismissed the applicant ’s appeal and upheld this refusal . On DATE ORG upheld the first - instance decision of DATE .

For unspecified reasons , the inquiry was resumed . On DATE an investigator in ORG issued another refusal to institute criminal proceedings .

On DATE ORG in PERSON examined the applicant ’s complaint against the refusal of CARDINAL DATE under LAW and rejected the complaint . The court held as follows :

“ Since DATE the inquiry proceedings have been resumed on several occasions ... The applicant is being detained in a medical facility and has been and is being provided with appropriate medical assistance . It has been established that on a number of occasions he impeded treatment and refused to make medicines . It has not been established that the deterioration of his health was due to inaction on the part of the medical staff . No dangerousness on account of a breach of sanitary regulations , required by LAW , has been established . ”

On DATE ORG upheld the above judgment .

Section CARDINAL of LAW ( Federal Law no . GPE of DATE ) provided at the time that a prosecutor was empowered to order a detention facility to take measures necessary in order that a detainee ’s rights and freedoms be respected .

NORP In accordance with ruling no . CARDINAL of CARDINAL DATE made by ORG of GPE , complaints brought by detainees in relation to inappropriate conditions of detention ( for instance , a lack of adequate medical assistance ) , as well as complaints against decisions imposing disciplinary penalties , should be examined by a court under a procedure prescribed by LAW of LAW . According to this procedure , a person may lodge a court action if an action or omission by a public authority or official has violated an individual ’s rights or freedoms , has impeded their exercise or has unlawfully imposed an obligation or liability ( Articles CARDINAL and CARDINAL of the Code ) . This action should be lodged within DATE when the person learnt about the violation of his rights or freedoms ( LAW ) . If the court considers that the complaint is justified , the court shall order the respondent authority or official to remedy the violation ( LAW ) .

Section CARDINAL of LAW ( Federal Law no . GPE of DATE ) provides that detainees have a right to medical assistance , such assistance being provided if necessary in public or municipal medical institutions and at public or municipal expense .

Detailed regulation of medical care in detention is provided in a Regulation adopted by ORG and ORG ( decree no . CARDINAL of CARDINAL DATE ) . It provides that medical assistance in detention should be the same as that guaranteed by the general programme of free health care provided in GPE ( Rule QUANTITY of the Regulation ) . Outpatient health files and prescription records should not be handed over to detainees ; detainees have a right to receive information relating to their state of health and should be given access to medical documents ( Rule CARDINAL ) .


Françoise Tulkens;Guido Raimondi;Helen Keller;Paulo Pinto De Albuquerque

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

On DATE the applicant ’s mother had an endoscopy done in ORG ( a private hospital in GPE ) . It was discovered that she had a cancerous tumour in her stomach . She was referred to a doctor in the same hospital in order to have the cancerous tumour removed from her stomach .

On DATE the applicant signed the first consent form ( of CARDINAL ) , which reads as follows :

“ I , the undersigned , hereby give consent to the surgical treatment to be administered for stomach cancer .

I am aware that the below mentioned procedure is being planned and I am giving my free consent and authorisation for a “ total gastrectomy ” .

I have been given by my doctor understandable information on my health condition , the surgery to be carried out , the risks and benefits connected therewith , the possible complications , the alternatives and the risks of not undergoing treatment .

I know that the result can not be guaranteed .

In the event that an additional or other operation is needed other than those already planned , I am giving consent to those operations as well ... ”

On DATE she was operated on ( “ gastrectomy ” , “ esophagojejunostomy ” and “ jejunostomy ” were applied ) .

On DATE after the surgery , an “ anastomotic leakage ” was detected . On DATE another surgery was performed by another doctor from outside the hospital for fistulas . The “ omega esophagojejunostomy ” was converted into a “ FAC Y ” type reconstruction . Following this surgery a gastrointestinal haemorrhage occurred .

On DATE another operation ( “ laparotomy ” ) was carried out to stop the bleeding , drain the blood and fix the leakage .

On DATE when a leakage of intestinal contents started in the patient ’s abdominal wound , another surgery was done ( “ laparotomy ” and “ drainage ” ) .

On DATE a “ percutaneous tracheostomy ” was performed .

On DATE the last operation was carried out for duodenal fistula and complications associated with laparotomy .

On DATE the patient developed “ pneumothorax ” .

On DATE or DATE the applicant ’s mother died of cardiac arrest resulting from multiple organ dysfunction . All attempts at resuscitation failed .

On DATE the applicant and her daughter instituted compensation proceedings against ORG and CARDINAL doctors for having caused their mother and grand mother ’s death by negligence . On DATE , they also lodged a complaint with the public prosecutor of PERSON .

NORP The public prosecutor started an investigation into the death of the applicant ’s mother . As far as understood from the case file , the applicant , the doctor who had performed the first surgery , some other medical staff involved in the treatment of the applicant ’s mother , including the doctor who had carried out the operation on DATE , gave statements . An expert opinion dated DATE was obtained from ORG ( CARDINALrd committee ) . Relying on the applicant ’s mother ’s medical history and witness evidence , it was concluded in the expert opinion that the treatment administered following the diagnosis of stomach cancer had been adequate and that the anastomotic leakage , which led to the death of the applicant ’s mother , had been a typical complication in this kind of surgery .

On DATE the public prosecutor gave a decision of non - prosecution based on the expert opinion , witness statements and the deceased ’s medical records . The objection filed against this decision was also dismissed on DATE .

Subsequently , ORG appointed CARDINAL professors from ORG for another expert opinion . In this expert report , the experts observed the following :

“ It was the leakage after the first surgery that started the chain of events that led to the applicant ’s mother ’s death ; the method to be used to close a surgical wound , namely stitching or stapling , is to be chosen by the surgeon depending on the circumstances . In view of the deceased ’s age , manual suturing could be considered as convenient . By the same token , in a total gastrectomy , it is for the surgeon to decide on the method to be applied in gastric reconstruction , either “ Omega ” or “ PERSON Y ” type . That the leakage was noticed on DATE after the first operation showed that the follow - up of the patient had been duly carried out . An anastomotic leak is the major post - operative complication of a total gastrectomy , the incidence of which has been reported to be PERCENT . In the deceased ’s case , the anastomotic leakage began at an early stage in the post - operative period . Although this suggests technical incompetence , there is no evidence to that effect ; the treatment to be administered for an anastomotic leakage is still debated . Treatment options range from conservative management to aggressive surgery . The course of treatment followed in the deceased ’s case seems to be appropriate and in line with the medical practice . Unfortunately , after all these complications , the development of multiple organ dysfunction could have been expected . There is no finding which might substantiate that the hospital and/or doctors involved in the treatment were at fault . ”

On DATE the applicant challenged the findings of the CARDINAL professors and demanded that a new expert report should be obtained .

Relying on the expert reports drawn up by ORG and the CARDINAL professors appointed from ORG , the witness evidence , the medical records of the deceased and the investigation file of ORG , the first - instance court rejected the applicant ’s action on DATE on the grounds that they had been duly informed of the procedure followed and that there was no fault attributable to the hospital or doctors .

On DATE ORG upheld the judgment of the first instance court after having held a hearing . The applicant requested rectification . ORG dismissed the request on CARDINAL DATE . The final decision was served on DATE .