No violation of Art. 6-1;No violation of Art. 6-1+6-3-b;Not necessary to examine Art. 10

Mr Paul Serves is a regular officer in the NORP army and at the material time held the rank of captain . He was in command of the first company ( “ the company ” ) of ORG ( “ CARDINALnd GPE ) and was based in LOC .

On DATE the company set off on a “ provincial tour ” in the GPE region in the north of LOC .

On DATE the applicant called together the heads of platoon and told them that poachers had been reported to him in the presidential reserve and GPE - Bangoran FAC and that they were to carry out an “ unofficial ” investigation mission . He designated CARDINAL areas ; CARDINAL platoon of the company , under the applicant ’s command , was to investigate in CARDINAL of them and a second platoon , under the command of Lieutenant C. , was to investigate in the other . A third platoon was to relieve the second after TIME . The applicant said that any poachers encountered should be intercepted and , if they fled , should if necessary be fired on after a warning had been given . The operation began on TIME .

On DATE a patrol from the second platoon , commanded by Staff Sergeant B. , came upon CARDINAL natives who fled on seeing them . Staff Sergeant B. fired QUANTITY shots , wounding CARDINAL of the fugitives in the leg . On hearing of the incident from FAC , Lieutenant C. went to the scene with the platoon ’s medical orderly , Corporal J. The injured man was treated and taken to the bivouac , where Lieutenant C. ordered Corporal NORP to dig a grave . TIME after that had been done , and after being questioned , the captive , on Lieutenant C. ’s orders , was dispatched by means of CARDINAL shots fired by Corporal NORP and then buried .

The applicant was told of the incident on CARDINAL or DATE and ordered his men to remain silent . They returned to their camp at ORG on DATE . In his report on the “ provincial tour ” the applicant made no mention of any incident .

When questioned on CARDINAL DATE by Lieutenant - Colonel PERSON , the commanding officer of the NORP operational assistance units ( “ the ORG ” ) in PERSON , who had heard rumours of an incident during the tour , the applicant and PERSON said that they had found a native ’s body , had buried it and had not reported the matter out of discretion . They drew up reports relating this version of the events . ORG authorities were informed on DATE and no further inquiries were made .

On DATE , however , Colonel PERSON , the commanding officer of the ORG in LOC , was told that evidence given to the LOC police implicated his soldiers . He therefore decided to recommence the inquiry and on CARDINAL May personally interviewed the applicant , Lieutenant C. , Staff Sergeant B. and Corporal J. The applicant and PERSON confirmed the content of their original reports . As their statements differed in some respects , however , Colonel PERSON interviewed Lieutenant C. again . The lieutenant then admitted that Staff Sergeant B. had opened fire on the poacher , who had been injured in the leg and had received medical treatment at the scene of the incident . He also said that the captive had died from his injuries shortly after being taken to the bivouac and that he himself had ordered that he should be buried at once .

NORP On his return to Bangui with the applicant and PERSON Colonel PERSON had the matter reported to the ORG Chief of Staff . On CARDINAL DATE the Chief of Staff told the colonel that he had been in touch with the prosecutor at ORG , that an application should be made to the ORG military police – a gendarmerie detachment assigned during operations to a large unit or base to carry out general policing and criminal - investigation duties – and that the company was to be relieved as soon as possible .

In a commanding - officer report of CARDINAL May Colonel PERSON said that he believed PERSON latest statement on the circumstances of the poacher ’s death . He also set out the facts described above ( see paragraphs ORG ) , concluded that the applicant was “ wholly ” responsible and asked for disciplinary penalties to be imposed on him ( replacement as head of his unit and a reprimand by the Minister of Defence ) and on PERSON DATE days’ arrest ) .

The soldiers involved in the case were sent back to GPE on DATE . There , the applicant , Lieutenant C. , Staff Sergeant B. , Corporal J. and the other CARDINAL heads of platoon in the unit were questioned by General PERSON , the commanding officer of ORG and ORG . In his commanding - officer report of CARDINAL DATE to the ORG Chief of Staff he mentioned a rumour that the poacher had been “ finished off ” by Corporal NORP and concluded that Lieutenant C. and the applicant bore the responsibility , which was “ weighty ” in the latter ’s case .

General PERSON questioned the applicant , Staff Sergeant B. , Corporal J. and Lieutenant C. again . Lieutenant C. admitted that Corporal NORP had , on his orders , shot the injured man in order to “ put an end to the suffering of a dying man ” . This was later confirmed by the corporal . A commanding - officer report of DATE gives an account of this and concludes : “ the responsibility lies mainly … with the CARDINAL officers in question ” .

On DATE Colonel PERSON had informed the commandant of the Bangui military police of the facts of the case . The commandant had opened a preliminary inquiry and on CARDINAL and CARDINAL DATE sent messages to the prosecutor at ORG , reading as follows :

“ First : investigation being carried out by commanding officer of Bangui military police detachment ( CAR ) assisted by Bangui and PERSON military police personnel [ ; ] pending proceedings do not require soldiers in question to be detained here in view of line taken by Head of ORG .

Second : all personnel involved will have made statements before returning to GPE .

Third : personnel concerned will depart for ORG with their unit on DATE ... ”

and

“ Further to telephone call DATE , names of soldiers implicated in the case are

( CARDINAL ) Serves , PERSON , Captain . ( CARDINAL ) [ C. ] , Lieutenant . ( CARDINAL ) [ B. ] , Staff Sergeant . ( CARDINAL ) [ J. ] , Corporal .

Unable at present to give you detailed account of facts . Information currently being sought .

Please ask PERSON [ ORG Chief of Staff ] to make arrangements with ORG Bangui for soldiers in question to be conveyed to GPE . Request message confirming instructions you gave by telephone and possibly also fresh orders – even at once orally . ”

On DATE DATE the commandant of the military police interviewed Colonel PERSON , who had given him a copy of his report of CARDINAL May. An official report of CARDINAL DATE , to which the colonel ’s report and the record of his interview were annexed , brought the investigation to an end .

On an application of CARDINAL DATE by the prosecutor at ORG an investigation was begun .

On DATE the applicant was charged with manslaughter , and on DATE a murder charge was substituted . He was detained pending trial from CARDINAL DATE . Lieutenant C. and Corporal NORP were also charged with murder , and CARDINAL other legionnaires , from the company ’s second platoon , were charged with aiding and abetting murder ; Corporal J. was charged with manslaughter and Staff Sergeant B. with wounding with intent or wilful violence or assault , entailing or not unfitness for work for not DATE .

On DATE , on an application by the prosecutor , ORG of ORG , exercising jurisdiction as the body supervising judicial investigations by ORG , gave the following judgment :

The body supervising the judicial investigation

Notes that the investigation was commenced on an application of DATE made without the opinion of the Minister of Defence or of the authority referred to in LAW having first been obtained as required by LAW of that Code .

PERSON that this irregularity , seeing that the offenders were not caught in the act , had the effect of infringing the rights of those against whom proceedings have been brought , and that at the same time they were also not afforded a fair hearing as some of the evidence from the preliminary inquiry had not been placed in the file .

Consequently declares void the application of CARDINAL DATE for a judicial investigation and the steps subsequently taken in the proceedings .

Declares that the preliminary inquiry and the messages of [ CARDINAL ] and DATE remain effective .

NORP In response to a request from the prosecutor on DATE , the Minister of Defence issued an opinion on DATE in which he stated that the facts appeared to constitute a serious crime ( crime ) and that criminal proceedings should be brought .

On an application of CARDINAL DATE by the prosecutor ( which referred to the official report of CARDINAL DATE , the messages of CARDINAL and DATE , General ORG commanding - officer reports of CARDINAL May and DATE and the Minister of Defence ’s opinion ) , a judicial investigation , for murder , was begun in respect of Lieutenant C. and Corporal NORP only . They were charged on DATE .

In connection with that investigation , the applicant was summoned to appear as a witness before the military investigating judge CARDINAL times ( at hearings on CARDINAL , DATE and CARDINAL DATE ) . On each occasion he attended but refused to take the oath and give evidence .

At those hearings the investigating judge ordered Mr Serves to pay fines of MONEY ( ORG ) , ORG CARDINAL and ORG CARDINAL respectively for refusing to take the oath and give evidence .

The applicant appealed against those orders to ORG of ORG . His main argument in his pleadings was that as , in its judgment of CARDINAL October CARDINAL , the ORG had expressly declared that the preliminary inquiry and the messages of CARDINAL and DATE on which his DATE charge had been based remained effective , there was incriminating evidence against him such as enabled him to be charged , so that he could not be examined as a witness without his defence rights being infringed and a breach of LAW of LAW being committed . He further maintained that he had offered the same explanation for his refusal to the investigating judge at the first interview ; this is not , however , mentioned in the records of his interviews .

On DATE ORG of ORG upheld the orders in issue . It gave the following grounds in its judgment :

“ The application for a judicial investigation and the subsequent steps in the investigation were declared void in the judgment of DATE of the body supervising the judicial investigation , and it follows from Article CARDINAL of the Code of Criminal Procedure that no information against parties to the proceedings may be derived from documents declared void , ‘ which have been removed from the investigation file and filed in the ORG , at peril of committing criminal malfeasance in public office in the case of judges and on pain of disciplinary proceedings being taken in the case of defence counsel .

Consequently , even if the witness PERSON is of the view that his counsel ’s reference to documents declared void does not adversely affect him , the body supervising the investigation can not take the same view without contravening LAW cited above , thereby rendering its members liable to prosecution as provided in that Article .

The supervisory body consequently declines to look at the documents and steps in the investigation that have been declared void .

Since PERSON was not referred to by name in the application [ of CARDINAL DATE ] , the investigating judge was entitled to examine him as a witness , provided that LAW was complied with .

Although Captain Serves ’s immediate superior , General Guignon , judged that Captain PERSON had committed faults that made him liable and were likely to attract a disciplinary penalty , it was for the investigating judge to assess whether the evidence obtained during the preliminary investigation and the inquiry by commanding officers , which are the only documents from the investigation concerning Captain Serves , amounted to substantial , consistent evidence of his guilt .

By Article CARDINAL of the Code of Criminal Procedure , the investigating judge had to take his decision without deriving information from the documents that had been declared void .

The records of the applicant ’s interviews show that he refused to take the oath without offering any explanation for this unusual conduct .

The investigating judge was thus not put in a position to reassess whether LAW was applicable in the light of hearing the witness ’s explanation for this procedural difficulty .

As matters stand , the body supervising the judicial investigation can not , without going beyond the scope of the application that has been made to it , consider whether or not PERSON Serves should be heard as a witness .

The supervisory body finds that the investigating judge complied with LAW of LAW and LAW .

The applicant lodged an appeal on points of law on CARDINAL DATE . He maintained , inter alia , that there had been a breach of LAW CARDINAL of the Code of Criminal Procedure .

ORG ) dismissed the appeal in a judgment of DATE , on the following grounds :

In order to justify upholding [ the ] orders [ of CARDINAL , CARDINAL and CARDINAL DATE ] , ORG , after stating that it could not , without contravening LAW of LAW , derive information from documents that had earlier been declared void or , without going beyond the scope of the application made to it , consider whether or not Serves should be heard as a witness , noted that he had refused to take the oath without giving any reason and that the investigating judge had thus not been put in a position to assess whether LAW cited above was applicable .

In view of these wholly adequate reasons , ORG provided a legal basis for its judgment ... ”

On DATE the ORG bailiff collected the fines plus costs and interest , amounting in all to ORG CARDINAL .

On CARDINAL DATE the applicant was again charged with murder .

On DATE ORG of ORG indicted Corporal NORP for murder , and Lieutenant C. and the applicant for aiding and abetting murder .

On DATE the ORG convicted and sentenced Corporal D. to DATE imprisonment , suspended , PERSON to DATE imprisonment , with DATE suspended , and the applicant to CARDINAL years’ imprisonment , with DATE suspended .

An appeal on points of law by the applicant and PERSON against the judgments of DATE and CARDINAL DATE is still pending .

Article CARDINAL of LAW provides :

“ The investigating judge shall summon , or have brought before him , at no cost , by a police officer , any person whose evidence he deems useful .

Article CARDINAL of LAW Procedure shall apply to a witness who fails to appear or who appears but refuses to take the oath and give evidence ... ”

Article CARDINAL of LAW provides :

“ Anyone summoned to be examined as a witness shall be required to appear , to take the oath and to give evidence …

If a witness fails to appear , the investigating judge may , on an application by the public prosecutor , have the witness brought before him by the police and order him to pay a fine of ORG CARDINAL to ORG CARDINAL ...

The same penalty may , on an application by the public prosecutor , be imposed on a witness who appears but refuses to take the oath and give evidence .

Article CARDINAL of the Code of Criminal Procedure , however , which applies to military criminal proceedings by virtue of Article CARDINAL of LAW , provides :

“ An investigating judge in charge of an investigation and judges and senior detectives acting at a judge ’s request may not , with the aim of frustrating the rights of the defence , examine as witnesses persons against whom there is substantial , consistent evidence of guilt . ”


CASE OF RODIĆ AND OTHERS v. BOSNIA AND HERZEGOVINA

Preliminary objection dismissed (Article 35-1 - Exhaustion of domestic remedies);Remainder inadmissible;Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Prohibition of torture);Pecuniary damage - claim dismissed;Non-pecuniary damage - award

David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nicolas Bratza;Päivi Hirvelä

The applicants were born in DATE , CARDINAL , DATE and DATE respectively . They are currently detained in FAC in GPE and GPE .

NORP On different dates the applicants were convicted of war crimes perpetrated against PERSON ( at the time , NORP ) civilians during the DATE - CARDINAL war in GPE . They were committed to FAC on DATE ( Mr Rodić ) , on DATE ( Mr Pušara ) , on DATE ( PERSON ) and on DATE ( Mr GPE ) . PERSON is the only maximum - security prison in GPE ( a constituent Entity of GPE ) . Its population is mostly made up of Bosniacs ( MONEY ) .

On DATE Mr Pušara asked to be transferred to ORG , in ORG ( the other constituent Entity of GPE ) , in order to be closer to his family . On DATE ORG ( “ the Federation Ministry ” ) informed him that a prison transfer between the CARDINAL Entities was not allowed .

On DATE at TIME offensive graffiti referring to PERSON and Mr GPE were discovered in the prison canteen . Those responsible for the graffiti were never identified .

On DATE ORG informed PERSON also that a prison transfer between the CARDINAL Entities was not allowed .

On DATE at TIME , following the screening of a video which showed a DATE killing of GPE from GPE , another prisoner , PERSON , lured Mr Pušara into his cell and punched him in the eye with a clenched fist . On DATE Mr Pušara was treated in a civil hospital in GPE . According to an official report , the attack was ethnically motivated , the attacker had a piece of glass in his hand and the consequences could have been more serious had it not been for the intervention of another prisoner .

On DATE at TIME another prisoner , GPE , attacked Mr GPE in the prison canteen . The prison guards intervened after PERSON GPE had received several blows to the head . He was treated in a civil hospital in GPE on DATE .

On DATE the applicants declared a hunger strike in order to attract public attention to their situation . They were immediately placed in the LOC hospital unit .

On DATE , ORG sentenced GPE and GPE to CARDINAL days’ solitary confinement in connection with the incidents of CARDINAL and DATE .

On DATE ORG set up an ad hoc commission of independent experts ( “ the ad hoc commission ” ) with a view to investigating the incidents of CARDINAL and DATE .

On DATE ORG of GPE ( “ the ORG ” ) ordered the ORG transfer to FAC , in ORG , for security reasons .

On DATE the ad hoc commission issued its final report . It referred to prison records showing that the prison management had been aware of the need to protect the applicants from the time of their arrival in FAC . The prison management confirmed to the ad hoc commission that special measures had indeed been considered , but that it had been unable to introduce any such measures because of the lack of prison staff , the lack of space ( CARDINAL prisoners more than the prison ’s official capacity ) , the lack of another maximum - security prison in GPE and the fact that prison transfers between the Entities were not envisaged . CARDINAL other prisoners detained in FAC ( QUANTITY Bosniacs and CARDINAL NORP ) , who had also been convicted of war crimes , testified before the ad hoc commission , claiming that the applicants had good reasons to fear for their lives . The witness of NORP origin , ORG , maintained that he had also been and still was subjected to persecution by his fellow prisoners because of the nature of his offence . The report criticised the prison authorities for their failure to duly protect the applicants .

On DATE ORG ordered that the applicants remain in FAC , in its hospital unit , until further notice .

On DATE FAC entrusted a CARDINAL - member team ( which included CARDINAL medical doctors ) with the monitoring of the applicants’ state of health ( because of their hunger strike ) .

On DATE the applicants discontinued their hunger strike in compliance with the interim measures indicated by ORG ( see paragraph CARDINAL above ) .

On DATE a delegation of ORG of GPE and GPE visited PERSON and interviewed the prison management and the applicants . The prison management maintained that the separation of prisoners according to the nature of their offences was not feasible . The applicants , for their part , accused the prison staff of being uncaring . CARDINAL reports based on the above interviews were submitted to ORG of GPE : on DATE and on DATE . The first report required , without going into any details , that the applicants’ human rights be secured . The second report required , among other things , that equality of conditions between the applicants and other prisoners be secured or , if this was impossible , that the applicants be transferred to another prison .

On DATE ORG of Zenica Prison found GPE guilty of an offence against prison discipline ( incitement to the attacks on the applicants of CARDINAL and DATE ) and sentenced him to CARDINAL days’ solitary confinement . Furthermore , the prison management filed criminal charges against GPE

On DATE the applicants complained to ORG the LAW ” ) about the failure to enforce the decision of DATE ordering their transfer to another prison ( under LAW ) and about the conditions of their detention in FAC ( under LAW ) . They also applied for interim measures ( pursuant to LAW ) .

On DATE Mr GPE was transferred to another prison in GPE , namely FAC .

On DATE the CARDINAL applicants who had remained in FAC declared a new hunger strike protesting against the conditions of their detention in the hospital unit . On DATE a team appointed by the prison management met with them . It would appear that the applicants acknowledged that some outstanding problems had meanwhile been resolved . However , they did not discontinue their hunger strike until DATE .

On DATE Mr PERSON was transferred to FAC .

On DATE ORG decided not to apply interim measures in the present case .

On DATE ORG decided that it lacked subject - matter jurisdiction to examine the complaint about nonenforcement of the decision of ORG of DATE , as the impugned decision concerned neither the ORG “ civil rights ” nor a “ criminal charge ” against them . As to the complaint about the conditions of the ORG detention , ORG deemed that the applicants should have petitioned prison inspectors before addressing ORG , and dismissed the complaint on nonexhaustion grounds .

On DATE the remaining CARDINAL applicants were also transferred to FAC .

LAW or Punishment provides non - judicial preventive machinery to protect persons deprived of their liberty . It is based on a system of visits by ORG for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment ( “ the ORG ” ) .

During DATE of activity in the field , the ORG has developed standards relating to the treatment of persons deprived of their liberty . The following are its standards concerning inter - prisoner violence ( see the ORG standards , document no . ORG ( DATE ) DATE , p. CARDINAL ) :

“ The duty of care which is owed by custodial staff to those in their charge includes the responsibility to protect them from other inmates who wish to cause them harm . In fact , violent incidents among prisoners are a regular occurrence in all prison systems ; they involve a wide range of phenomena , from subtle forms of harassment to unconcealed intimidation and serious physical attacks .

Tackling the phenomenon of inter - prisoner violence requires that prison staff be placed in a position , including in terms of staffing levels , to exercise their authority and their supervisory tasks in an appropriate manner . Prison staff must be alert to signs of trouble and be both resolved and properly trained to intervene when necessary . The existence of positive relations between staff and prisoners , based on the notions of secure custody and care , is a decisive factor in this context ; this will depend in large measure on staff possessing appropriate interpersonal communication skills . Further , management must be prepared fully to support staff in the exercise of their authority . Specific security measures adapted to the particular characteristics of the situation encountered ( including effective search procedures ) may well be required ; however , such measures can never be more than an adjunct to the above - mentioned basic imperatives . In addition , the prison system needs to address the issue of the appropriate classification and distribution of prisoners .

Prisoners suspected or convicted of sexual offences are at a particularly high risk of being assaulted by other prisoners . Preventing such acts will always pose a difficult challenge . The solution that is often adopted is to separate such prisoners from the rest of the prison population . However , the prisoners concerned may pay a heavy price for their – relative – security , in terms of much more limited activities programmes than those available under the normal prison regime . Another approach is to disperse prisoners suspected or convicted of sexual offences throughout the prison concerned . If such an approach is to succeed , the necessary environment for the proper integration of such prisoners into ordinary cell blocks must be guaranteed ; in particular , the prison staff must be sincerely committed to dealing firmly with any signs of hostility or persecution . A third approach can consist of transferring prisoners to another establishment , accompanied by measures aimed at concealing the nature of their offence . Each of these policies has its advantages and disadvantages , and the ORG does not seek to promote a given approach as opposed to another . Indeed , the decision on which policy to apply will mainly depend on the particular circumstances of each case . ”

Besides its DATE general reports which are always public , the ORG periodically draws up reports on individual GPE , which are strictly confidential . Nevertheless , if a country fails to cooperate or refuses to improve the situation in the light of the ORG ’s recommendations , the ORG may decide to make a public statement . Of course , the ORG itself may at any time request publication of the ORG ’s report , together with its comments .

On DATE the Report on the visit to GPE and GPE carried out by the ORG from DATE to CARDINAL DATE was published , further to the request of GPE . The following are its relevant parts :

Inadequate staffing levels constitute a major problem throughout the prison system of GPE ... Deficiencies were also observed at FAC , where CARDINAL prison officers were present from TIME for a population of CARDINAL prisoners . Consequently , a number of prison officers in different establishments indicated that they frequently felt that their own security was compromised .

The ORG recommends that the relevant authorities conduct a review , without delay , of current staffing arrangements in all prison establishments throughout GPE . The objective should be to ensure that the number of prison officers employed is sufficient to guarantee both staff safety and the physical and mental integrity of inmates .

Material conditions varied in different parts of FAC ...

Newly - arrived sentenced male prisoners spent the initial period ( anywhere from DATE ) in a distinct reception section containing CARDINAL dormitories , which were furnished only with bunk beds and imparted a rather austere appearance . Though their occupancy levels were acceptable at the time of the visit , the dormitories would be overcrowded if all of the bunk beds were full .

After the reception period , prisoners were allocated to Pavilions I or III .

Pavilion I was the largest within the prison complex ( official capacity : CARDINAL ; CARDINAL occupants at the time of the visit ) . It was divided into CARDINAL large multi - occupancy units ( “ kolektive ” ) , each containing from CARDINAL dormitories , which could accommodate anywhere from CARDINAL persons ; in contrast , the dormitories in a renovated unit ( NORP ) were designed for CARDINAL occupants , a far preferable configuration . In addition to dormitories , the units comprised living areas and sanitary facilities . Furnishings were on the whole suitable and included lockers , as well as bunk beds , tables and chairs . However , the unrenovated areas were quite dilapidated , and the damage from the DATE riot was evident on the roofs and in the broken windowpanes . Further , ORG , which was used to accommodate older prisoners ( over DATE ) , was overcrowded , there being CARDINAL occupants ( allocated between CARDINAL dormitories ) for an official capacity of CARDINAL . Its living area / television room , equipped solely with a few rows of benches , imparted a rough , worn impression .

ORG ( official capacity : CARDINAL ; CARDINAL occupants at the time of the visit ) comprised CARDINAL dormitories . Its refurbishment had just commenced and the material conditions were similar to those observed in the unrenovated parts of FAC

The recently - renovated ORG ( official capacity : CARDINAL ; CARDINAL occupants at the time of the visit ) was separated from the other parts of the prison by a gate ; it comprised CARDINAL units and was in a good state of maintenance and repair . The ORG accommodated prisoners who had demonstrated good behaviour , and one of its units ( capacity : CARDINAL ) was used for placement of minors and young adults as well as older inmates ; though they slept in separate dormitories , those categories of prisoners were invariably associating with each other ( cf . in this regard paragraphs CARDINAL , DATE , and CARDINAL ) .

The CARDINAL Pavilion II offered cell - type accommodation with integral sanitation ; with an official capacity of CARDINAL , it had CARDINAL occupants at the time of the visit . The ground floor was used to accommodate remand prisoners and administrative detainees ; the first floor held the prisoners undergoing segregation ( “ usamljenje ” ) or increased supervision ( “ pojačan tretman ” ) , or solitary confinement ( “ samica ” ) as a disciplinary sanction . Most of the cells on each floor measured CARDINAL ORG and were used for single or double occupancy ( even if its occupants were formally undergoing “ solitary ” confinement ) . The exception was a multi - occupancy cell located on the first floor , used for “ increased supervision ” placements . It measured CARDINAL m² and was accommodating CARDINAL prisoners at the time of the visit , which is an acceptable occupancy level . However , the cell was equipped with CARDINAL beds ; it is not sufficiently large for such a number of prisoners .

The delegation observed CARDINAL serious shortcomings in the segregation and disciplinary cells : certain of them had CARDINAL bed for CARDINAL occupants and the toilets were not partitioned ( in contrast with the cells on the ground floor ) . This meant in practice that inmates were sleeping on mattresses placed on the floor , and were obliged to comply with the needs of nature in full view of their cellmates . Such a situation is totally unacceptable .

ORG also contained CARDINAL cells ( CARDINAL on the ground floor and CARDINAL on the first floor ) used for placement of inmates in a state of agitation ; CARDINAL of them was a padded cell ( No CARDINAL , on the ground floor ) . Sheets of paper bearing the inscription “ Cell under video surveillance ” were attached with tape to the doors of CARDINAL of the cells ( No CARDINAL , on the ground floor , and ORG . CARDINAL and DATE , on the first floor ) ; however , given that no monitors had been supplied , there was no operational video surveillance system . Except for an unpartitioned lavatory , the cells were devoid of furnishings or fixtures ; staff indicated that mattresses were provided if persons were placed in the cells . As already indicated , metal panels covering the windows in CARDINAL of the cells had apparently been removed DATE prior to the visit ; however , CARDINAL of the cells ( No CARDINAL ) still had such a panel , blocking access to natural light . Having regard to the other information gathered during the visit concerning these cells ( cf . paragraph CARDINAL ) , the ORG recommends that immediate steps be taken to ensure that prisoners are never placed in a dark cell for any length of time whatsoever ( cf . in this regard Rule CARDINAL of ORG ) ; further , the metal panel covering the window in cell No CARDINAL should be removed forthwith .

In the course of a brief visit to the semi - open sections ( Pavilions VI and ORG ) , the delegation observed that the material conditions offered to inmates were of a good standard .

To sum up , serious shortcomings in terms of material conditions of detention – due to an inadequate infrastructure or to a deterioration of the LOC ( often exacerbated by overcrowding ) – were present in varying degrees in the establishments visited .

As a priority , the ORG recommends that serious efforts be made to reduce occupancy levels in prisons ; the aim should be to provide a minimum of CARDINAL m² of space per person . Further , any cells measuring less then CARDINAL m² should be taken out of service as prisoner accommodation . Where necessary , the partitioning of toilet facilities in multi - occupancy cells should also be improved ...

At the time of the visit , PERCENT of the sentenced prisoners ( CARDINAL out of CARDINAL ) at FAC worked in industrial ( different types of metalwork , employing up to CARDINAL inmates ) or agricultural settings and in general services ( kitchen , bakery , laundry , canteen , audio / video broadcasting within the prison , maintenance and gardening , car repairs ) . The establishment ’s industrial workshops were dusty relics of another era , equipped with crumbling , outdated machinery , and providing a hazardous work environment . In contrast , working conditions in the other facilities were satisfactory .

A large area with a hard surface was available for sports such as football and basketball ; however , at least at the time of the visit , no such games were organised . Instead , inmates were found to be standing or wandering around the sports area in large groups . Prison management indicated that other sports and recreational activities were also offered to sentenced inmates ( including bowling , boxing , table tennis , karate , chess , painting , woodcarving , and other crafts ) , and that occasional film projections and live musical / variety performances ( staged by prisoners ) were organised in a theatre located in Pavilion I.

A limited number of inmates took part in educational activities ...

The fact that FAC is the only closed prison in the GPE undoubtedly creates obstacles to the delivery of differentiated regimes and treatment programmes tailored to individual inmates and corresponding to variables such as the type of offending behaviour , length of sentence , etc . In this context , the delegation found that there was a lack of differentiation of regimes / treatment programmes for different categories of sentenced prisoners at the establishment or , indeed , a proper system for classification / allocation . As far as the delegation was able to ascertain , a coherent policy for the execution of sentences – including a policy for early release and the provision of social support to prisoners DATE was absent . Further , the role envisaged for the educators was less than proactive .

The ORG invites the relevant authorities to develop programmes tailored to the profile of different types of prisoners , in light of the foregoing remarks .

To sum up , although sentenced prisoners at FAC did have an appropriate amount of DATE time outside their units , there remained a gap between the aspirations professed by management and staff and the programmes of activities which were actually being delivered to many of them ; CARDINAL did not benefit from a positive regime which might encourage them to address their offending behaviour . The ORG recommends that the relevant authorities take the necessary steps to ensure that all prisoners at FAC have access to an appropriate range of work , educational , sports and recreational activities .

The standard of health care facilities varied widely ; they were excellent in GPE and generally very good in PERSON , but were poor in PERSON and [ NORP ] ORG ...

The ORG recommends that the health care facilities at GPE and [ NORP ] ORG be upgraded .

On DATE the ORG published its Preliminary observations made by the delegation of the ORG which visited GPE from DATE , further to the request of GPE . Its relevant part reads as follows :

“ ... [ L]et me stress that co - operation also entails making concerted efforts to comply with the recommendations made by the ORG following its previous visits . In this respect , the delegation was concerned to find that no fundamental measures had been taken to improve the situation in the prisons visited or as regards forensic psychiatric patients . This clear lack of co - operation means that , if there is no prompt reaction by the authorities , the ORG may have no other choice than to consider initiating the procedure for making a public statement under LAW , paragraph CARDINAL , of LAW or Punishment ...

The delegation is also seriously concerned about the inter - prisoner violence that appears to be prevalent in the prisons visited . In FAC , it heard about a number of incidents of inter - prisoner violence , which in CARDINAL instance included CARDINAL inmate being ordered to kill another prisoner . Not surprisingly , certain prisoners appeared to be fearful for their safety ...

In all prisons visited , there was a lack of appropriate accommodation both for vulnerable prisoners and for those requiring increased levels of security . In FAC , a unit was under construction for the separate accommodation of vulnerable prisoners and plans to transform the forensic psychiatric annexe into a high security unit were being mooted . In FAC , work was already underway to create a high security unit . Such units are sorely needed ; there are currently no safe and secure facilities in which to hold dangerous prisoners at either ORG or Entity level , as the findings from this visit illustrate all too clearly ...

Other issues such as activities for prisoners , health care services , staffing , complaints and inspections will be elaborated upon in the visit report ... ”

The LAW entered into force on DATE , as part of ORG in GPE . It provides for the direct application of LAW in GPE and for the LAW to take precedence over all other law ( LAW ) . Furthermore , the entire ORG apparatus ( “ GPE , and all courts , agencies , governmental organs , and instrumentalities operated by or within the Entities ” ) is under a duty to “ apply and conform to ” that LAW ) .

The Constitutional Court of GPE was set up pursuant to LAW . It has jurisdiction to deal with practically any allegation of a breach of LAW . It may award compensation for non - pecuniary damage and adopt any interim measure it deems necessary ( Rules CARDINAL § CARDINAL and CARDINAL of ORG – Pravila Ustavnog suda PERSON i ORG ; published in ORG ( “ ORG ” ) no . CARDINAL of DATE ; amendments published in ORG of DATE ) .

This Act has been in force since DATE . The relevant parts read as follows :

“ Every inmate is entitled to lodge a complaint with ORG [ of ORG of ORG ] ... against members of prison staff alleging a violation of his or her rights . ”

“ In order to ensure a uniform system of execution of prison sentences ... the Ministry [ of ORG of ORG ] shall supervise prisons .

Supervision of the execution of prison sentences shall include the following in particular : the lawful and proper treatment of inmates , supervision of the work and structure of prisons , the manner of corrective training of inmates , conditions regarding security and self - protection , the work of the security unit , business operations , the manner of implementation of health protection and hygiene measures , inmates’ food and clothing and requirements concerning [ material conditions ] .

The supervision referred to in paragraph CARDINAL above shall be performed by [ inspectors ] .

While conducting inspections , the inspectors referred to in paragraph CARDINAL above shall be accorded the same rights , duties and responsibilities as those accorded to the inspectors of the administrative bodies of ORG , unless otherwise determined in this LAW . ”

“ A written report shall be made every time an inspection is carried out . It shall set specific time - limits for rectification of any irregularities and for general improvements if necessary .

The report shall be delivered to the prison governor .

The prison shall comply with any measures ordered .

The prison shall be entitled to lodge objections against any measures ordered , within DATE of receipt of the report . ”

It would appear that there are CARDINAL prison inspector posts in GPE and CARDINAL in GPE ( see ORG of the GPE ORG carried out under the auspices of ORG in DATE , pp . CARDINAL - CARDINAL ) .

This Act has been in force since DATE . It sets out further provisions concerning the rights , duties and responsibilities of inspectors . In accordance with LAW , every person ( natural or legal ) is entitled to petition an inspector , who must act upon the petition within DATE . The authorities ( including the police ) and every inspected establishment are obliged to fully cooperate with inspectors ( section QUANTITY of the Act ) . When an irregularity has been found , inspectors will order that it be rectified and set a deadline ; they may also impose a fine and/or initiate administrative or criminal proceedings where appropriate ( section CARDINAL of the Act ) . Interim measures may also be ordered ( CARDINAL of the Act ) .

This Act regulates , inter alia , the law of tort . The main remedy for a tort is an action for damages , but in some cases a permanent injunction can be obtained to prevent repetition of the injury . The following are the relevant provisions of this Act :

“ CARDINAL . All persons shall be entitled to request the court or other competent body to order the cessation of an action which violates their personal integrity , private and family life or other personal rights .

In the event of a breach of the order for cessation , the court or other competent body may order that a sum of money ( either a lump sum or a sum varying according to the duration of the breach ) be paid to the injured person . ”

“ A legal person shall be liable for the torts committed vis - à - vis a third party by its organs in the course of , or in connection with , the exercise of their functions . ”

“ In the event of a violation of personal rights the court may order ... any form of redress which may be capable of achieving the aim of non - pecuniary damages . ”

“ The court shall award non - pecuniary damages for physical pain , mental anguish caused by reduced vital activities , disfigurement , loss of reputation , violations of freedom or personal rights or the death of a close person and/or for fear , if such award y award of pecuniary damages . ”

This Act has been in force since DATE . It provides for the possibility of seeking a temporary injunction pending court proceedings , or even regardless of the existence of court proceedings , under certain conditions ( sections CARDINAL - CARDINAL of the Act ) . Section CARDINAL(CARDINAL ) , in its relevant part , reads as follows :

“ For the protection of rights or the status quo , the following measures may be ordered :

an order addressed to the other party that either prohibits that party from performing a certain action or orders it to carry out a certain action in order to protect the status quo or to prevent any damage ;

... CARDINAL . any other necessary measures . ”

ORG is a member of ORG ( an international non - governmental organisation which has participatory status with ORG ) .

The following is the relevant part of its DATE report on the state of human rights in GPE :

“ Following a monitoring of ORG on the situation in [ prisons ] , the interest of media and public institutions in this issue has been increased . After contradictory information in the press , ORG , on the basis of the findings of a working group , concluded that convicts [ of PERSON origin ] maltreat psychically and physically convicts [ of NORP and NORP origin ] in Zenica [ Prison ] . The working group established , inter alia , that PERSON , after being systematically maltreated , attempted suicide and finally got mentally ill . ORG confirmed that a convict PERSON , when asleep , was beaten up with chains and lock . On the occasion of torture in FAC ] , ORG initiated an agreement between the ORG on eventual transfer of convicts to other [ prisons ] . Thus we are on the way of having ethnically cleansed prisons as well .

A [ parliamentary ] commission of ORG of ORG asked from ORG of ORG to establish the circumstances under which convicts of [ NORP origin ] , NORP , converted to ORG in FAC ] , following an allegation that they did it under duress . However , the prison management claims that there was CARDINAL voluntary conversion to ORG . ”

The relevant parts of the ORG ’s DATE report on the state of human rights in GPE read as follows :

“ Inter - ethnic relations remain encumbered by attempts of ruling nationalistic parties , primarily the ORG , ORG and ORG , to maintain ethnic homogeneity . By nourishing fears from the others , insisting on the thesis that other CARDINAL ethnic groups endanger status of their own nation , these parties manage to keep themselves in power .

Even though ORG passed the decision on the equality of the NORP , NORP and Bosniacs as constituent peoples across GPE , there is still a strongly expressed wish to establish domination of CARDINAL ethnic group over the others in areas where it has demographic and political supremacy . Conservation of aggressive nationalism is helped by the fact that criminal laws do not foresee any sanctions against these deeds . Prosecutor ’s offices do not react on these occurrences or on those of anti - Semitism , racism and xenophobia , which encourage extreme nationalism .

Fragile inter - ethnic relations are additionally encumbered by the occurrences of ethnically motivated violence and even terrorism .

The said as well as many other similar events help to sustain inter - national tensions and fear and prevent the normalisation of the situation in the country . It is concerning that the police very rarely reveal perpetrators of these crimes . Even if the perpetrators become known courts either set them free or punish symbolically which encourages perpetrators . ”

Amnesty International is an international non - governmental organisation which has participatory status with ORG . On DATE it published a report on GPE ( “ Better keep quiet : ill - treatment by the police and in prisons ” – document no . EUR/CARDINAL/CARDINAL/CARDINAL ) . The relevant part reads as follows ( p. CARDINAL ) :

“ In addition to an independent human rights institution , a functioning system of prison inspections can provide another level of accountability for prison staff and a way for the competent authorities to monitor the situation in prisons . It is a matter of serious concern , therefore , that in GPE no such system is functioning . The prison management of all establishments in GPE visited by ORG informed the organization that no inspection of their prisons had been carried out for DATE , because the CARDINAL posts of prison inspectors at ORG have been vacant . In these prisons , inspections by the [ ORG ] ORG take place only with regard to the situation of a small number of prisoners sentenced by the [ ORG and serving their sentence in prisons [ situated in ORG Herzegovina ] . ORG of ORG confirmed that , since DATE , no prison inspectors have been employed at [ that ] Ministry . Moreover , ORG was informed that [ that ] Ministry currently employs CARDINAL person , at the Assistant Minister level , in its ORG , responsible for supervising CARDINAL prisons . In contrast , a system of prison inspections appeared to be in place and functioning in FAC . ”


Violation of Art. 6-1;Violation of Art. 8;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings

The applicant has a young daughter , M .- A. , who was born in DATE .

On DATE the applicant and her daughter , who had lived in GPE since the latter ’s birth , arrived in GPE by aeroplane . As soon as she had landed , the applicant consulted the airport medical service because her daughter had not been feeling well . The duty doctor found that the little girl was vomiting and had a temperature of NORP and , accordingly , had her admitted to hospital .

On DATE , the hospital psychiatric department applied to ORG to have M .- A. removed from her mother ’s care and for an injunction on the mother visiting her until the complex medical and psychiatric state of the child , who did not speak NORP , had been clearly diagnosed . According to the doctor in charge of ORG case , the applicant had a clinical obsession with her daughter ’s health . It had also been very difficult to assess the little girl ’s psychological state because the applicant had constantly interfered with her treatment and medical examinations . The doctor stated lastly that the applicant had attempted to remove her daughter from the hospital in breach ( he said ) of recommendations already made by the court . However , there is no evidence that the court had previously been called upon to make any decision with respect to the applicant or her daughter .

On DATE ORG provinciale per l’assistenza GPE ) for the province of GPE supplied the court with the information it had been able to obtain by interviewing the applicant , the hospital staff and the applicant ’s brother , PERSON , who had lived in GPE for a long time . According to the Institute , the evidence gathered showed that the applicant had had M .- A. hospitalised on several occasions , in particular in paediatric hospitals in GPE , GPE and GPE , because she had believed the little girl to be seriously ill . ORG also reported that during M .- A. ’s last period in hospital in GPE , in DATE , ORG had been asked to issue an injunction forbidding the applicant to remove her daughter from the hospital and to open proceedings to have the little girl adopted . The applicant had , however , succeeded in smuggling her daughter out of the hospital and reaching GPE . The ORG stated , lastly , that M .- A. did not appear to be troubled by the separation from her mother , even though she asked for news of her .

In its final report , dated DATE , the psychiatric department of the GPE hospital made the following recommendations to ORG :

( a ) that M .- A. should be kept away from her mother ;

( b ) that M .- A. should be discharged from hospital as soon as possible ;

( c ) that she should be placed with a family in which the parents had an emotionally stable relationship ; and

( d ) that she should be settled in a school and take part in social activities .

NORP The hospital had formed the opinion that M .- A. had developed a pathological bond with her mother , a bond which met the needs of the mother rather than the child ’s developmental requirements . The little girl had reacted to the separation from her mother with anxiety and depression but had shown herself capable of overcoming this by relying on other images of women . She had demonstrated great interest in other children of her age and an excellent capacity for socialisation .

On DATE ORG ordered that M .- A. be temporarily placed with the applicant ’s brother ’s family .

In the meantime PERSON and his wife had persuaded the applicant to seek treatment and on DATE she was admitted to the psychiatric department of a hospital in DATE , near GPE . According to a medical report dated DATE , she was suffering from chronic psychosis , the constitutive element of which was a form of vicarious hypochondria focused on her daughter . The applicant left the hospital on the date of the report and returned to GPE .

In an order of CARDINAL DATE ORG , which had acquired jurisdiction over the case because of where the applicant ’s brother ’s family lived , found that M .- A. ’s placement with that family could no longer continue because of a series of problems within it . The court decided , in consequence , to keep the child away from the applicant and to place her in the care of social services on the basis that she should be placed with another family as soon as possible . The court also ordered a comprehensive psychological report on the mother . Lastly , it ordered that proceedings under LAW no . CARDINAL of CARDINAL DATE ( hereinafter “ LAW ” ) should be set in motion with a view to a declaration that M .- A. was available for adoption . Under that provision , “ ORG , may , even of its own motion , declare … . a minor available for adoption if he has been abandoned in the sense of being deprived of all emotional or material support from his parents or the members of his family responsible for providing such support ( other than in temporary cases of force majeure ) ” .

In an order of CARDINAL DATE , the court suspended the applicant ’s parental responsibility and ordered that there should for the time being be no contact between the little girl and her mother or the other members of her family . In view of the urgency of the matter , the court did not hear submissions from ORG or the applicant . It based its decision primarily on a report on ORG psychological health prepared by ORG . According to that report , M .- A. was suffering from anxiety and depression together with an almost neurotic tendency to satisfy her immediate needs . Her perception of the image of her parents was problematic : that of her mother was difficult to identify and that of her father , whom she had never met , aroused fear and remained abstract . The report ’s conclusion was that the little girl was suffering from serious emotional and relationship problems due to the pathological behaviour of her mother , who had for a long time been her sole source of stimulation . Noting the potential represented by the child ’s will to develop emotionally in a positive way , the report recommended that she should be placed with an emotionally stable family , be given suitable psychological help and be integrated into a stimulating socio - scholastic environment .

On CARDINAL DATE the applicant lodged her first application with ORG , seeking to have the order of CARDINAL DATE revoked . She argued , inter alia , that her daughter had lived her whole life in GPE and that at the time at which she had been separated from her mother she had not even been able to speak or understand NORP . The applicant also pointed out that under LAW preliminary provisions of LAW , as it had stood at the time , the relationship between parent and child was governed by the law of the mother ’s country if the father ’s identity was not known .

On CARDINAL DATE the court ordered the social services department in charge of ORG case to give an opinion on her suitability for adoption , emphasising that the matter was urgent .

In the meantime , M .- A. ’s father had recognised her as his daughter .

On DATE ORG declared M .- A. available for adoption after hearing submissions from , among others , the applicant , M .- A. ’s maternal grandmother and PERSON The court held that the little girl had been abandoned within the meaning of LAW no . CARDINAL , given the mother ’s situation and the fact that it was impossible to place the child with her maternal uncle ’s family . It also held that no weight could be given to the late recognition of M .- A. by her natural father , who had never seen her and who did not know her first name . Lastly , on the question of whether NORP law applied , it held , following the case - law of ORG , that it was sufficient for a child who had been abandoned to be within NORP territory for NORP law to apply .

NORP The applicant lodged a second application , submitting , inter alia , that the report of DATE on her psychiatric state had been based on an account of her medical history reconstructed primarily from information supplied by her sister - in - law , with whom she had had no contact before coming to GPE , and who could not therefore know what her life with her daughter in GPE had been like . Moreover , the court should have taken account of the fact that the applicant had had herself voluntarily admitted to LOC hospital because she was afraid of being separated from her daughter . She submitted lastly that it could not be said that M .- A. had been “ abandoned ” since she ( the applicant ) received an allowance and also owned an apartment in GPE which brought in rent . The applicant asked the court to order a report on her mental health and enclosed an expert report which she had had drawn up privately and which stated that separating a child from its mother could be justified only on exceptional grounds , which did not exist in the applicant ’s case , and that certain symptoms of anxiety and depression in the applicant had been caused by the separation from her daughter .

In the meantime , ORG at ORG had informed the NORP authorities that , contrary to the information provided by ORG of the province of GPE on DATE , the GPE court had never taken any action concerning the applicant or her daughter .

The first hearing in the case was held on DATE . A second hearing was scheduled for DATE but was apparently adjourned because of a delay in M .- A. ’s case file arriving from ORG .

At a hearing on CARDINAL DATE the doctor who had been in charge of the applicant ’s case at ORG hospital stated that he had obtained his information on the applicant ’s recent past directly from her but that the general information about her life had been supplied by her sister - in - law . He said that the applicant ’s sister - in - law had at first thought it desirable for the applicant to stay in hospital and DATE , when the doctor had asked her to think of an alternative , had suggested that the applicant should return to GPE . The doctor stated lastly that his diagnosis of chronic psychosis had been based on the information provided by the sister - in - law and acknowledged that he had never asked the applicant if she had had other children or any abortions .

On DATE and DATE ORG again asked ORG to send it the little girl ’s case file , emphasising the urgency of the matter . The GPE case file was finally sent to ORG on DATE .

The final hearing took place on DATE . M .- A. ’s guardian ad litem ( curatore speciale ) applied to have the order of CARDINAL DATE set aside on the grounds that the bench had been improperly composed . That application was allowed and the order in question annulled .

In an order of CARDINAL DATE , deposited with the court registry on DATE and served on the applicant on DATE of DATE , the court issued a fresh declaration that M .- A. was available for adoption . The court , which had not heard evidence from the child and whose decision reflected the submissions of ORG , based its ruling on the same grounds as those given in the annulled decision of DATE , namely , inter alia , the medical reports of CARDINAL DATE and DATE . The court also noted the fact that M .- A. ’s natural father intended to marry the applicant but without attributing any significance to it .

The applicant , who had meanwhile applied for the adoption process to be suspended , applied for an order setting aside that decision . She submitted , first , that it slavishly followed the reasoning set out in the first order and argued in particular that the diagnosis of her mental health made in DATE could not provide grounds for a decision reached DATE , given that a declaration of availability for adoption should be based on the circumstances existing at the time it was made . The applicant also declared her willingness to be supervised by social services so as to ensure a better upbringing for her daughter . She asked lastly for permission to see her daughter again , on neutral ground and in the presence of social workers , for M .- A. to give evidence and for an expert report on herself to be ordered .

The applicant also filed a number of expert reports by psychologists in private practice . CARDINAL of them , by a forensic medical examiner specialising in psychiatry , stated that a diagnosis of “ chronic ” psychosis would have to be based on psychotic antecedents , of which there was no evidence in the records of the applicant , a trained nurse who had always practised her profession successfully . It also stated that the applicant ’s concerns about her daughter ’s health were based on real evidence and were not “ delusions ” .

There was indeed evidence that a number of doctors had in the past diagnosed M .- A. as having health problems . The case file contained :

a certificate of DATE from the medical faculty of ORG certifying the existence of an unspecified medical problem ;

another certificate from the same faculty dated DATE stating that the little girl 's immune system was deficient and recommending that she should not be vaccinated , should avoid any contact with other children who might be carrying viruses and should not be sent to school ;

a certificate of DATE from a doctor in private practice recommending regular medical and pharmaceutical treatment and a change of climate ;

a certificate of DATE from another specialist in private practice diagnosing infections of the digestive and respiratory organs and prescribing the use of oxygen at home during attacks .

In DATE CARDINAL expert reports ordered by the court were completed . In DATE evidence was taken from ORG grandfather and the applicant .

On DATE the court took evidence from the applicant and ordered a psychological report on the little girl .

In DATE , DATE and DATE a number of lay and expert witnesses gave evidence ( a hearing scheduled for DATE was adjourned because the applicant ’s counsel had had a road accident ) .

A hearing on DATE was devoted to evidence from a number of witnesses called by the applicant , who also asked for a hearing to be scheduled to enable witnesses from GPE to testify .

A hearing scheduled for DATE was adjourned because of the need to replace CARDINAL of the members of the bench and also because the applicant had applied for an adjournment . The following hearing , scheduled for CARDINAL DATE , was also adjourned because the witnesses from GPE whom the applicant had called had failed to appear . The court was consequently obliged to issue rogatory letters .

On DATE the applicant , noting that the final hearing had been adjourned to DATE , complained that , in spite of her repeated requests , no meeting between her daughter and herself had been arranged and the court had taken no measures to enable her to explore the possibility of re - establishing a relationship with her daughter but had failed to respond to her requests or refused them .

On DATE the court , following ORG recommendation , dismissed that complaint .

In a judgment of DATE ORG dismissed the applicant ’s request for the declaration of availability for adoption to be set aside . The court first examined the time taken to reach a decision at first instance . It found that the length of the proceedings had been caused by the applicant ’s numerous requests for lay and expert witnesses to be called , to the large number of documents she had produced and her frequent changes of legal representative , as well as by the workload of the court . It pointed out , moreover , that it had not received the additional information requested from ORG until the final hearing .

As to the merits of the case , the court began by acknowledging the extremely complex nature of the case ( which it described as CARDINAL of the most difficult it had ever had to determine ) and the difficulty of building an accurate picture of what the applicant and her daughter ’s situation in GPE had really been . It noted that when M .- A. had last been in hospital in GPE , the department where she was a patient had informed ORG of her situation , with a view to possibly having her removed from the applicant ’s care . The applicant had then smuggled her out of the hospital and left for GPE . Indeed , while M .- A. was a patient in the hospital , the doctors had had her transferred to the child psychology department , the children in which were usually destined for adoption .

NORP The court emphasised that the report which it had commissioned on ORG had established that she had never had any serious medical problem until DATE , a finding certified by the hospitals to which she had been admitted ( in GPE , GPE and GPE ) . The report had also stated that the little girl suffered from common childhood complaints which could be treated by ordinary medical methods and did not justify her mother ’s obsessive health - care measures or the continual hospitalisations which the latter had made her undergo , frequently against medical advice .

The court placed particular emphasis on the fact that the report of CARDINAL October CARDINAL from the GPE hospital referred to aspects of the relationship between the applicant and her daughter which were extremely similar to those noted DATE , on DATE , by the doctor from the GPE hospital , aspects which had led the latter to notify ORG at ORG . It was clear , according to the court , that the doctor in GPE had not known of the identical step taken by his NORP colleague . Those CARDINAL documents demonstrated the tragic conditions in which ORG had lived up to that time : isolated , without contact with other children of her age and trapped in the role of patient which , in reality , was satisfying the needs of her mother , with whom she had a symbiotic relationship . The tribunal found that the circumstances of the sudden departure for GPE were equally significant : the applicant had taken CARDINAL cases , had bought the airline tickets at the airport , had abandoned her job DATE before retirement , had abandoned her flat and had taken M .- A. out of school , which she had recently started attending for the first time . The court considered that the explanation put forward by the applicant , who had stated that she had left for GPE in order to find her father – whose address she did not know and whom she had not seen since DATE – was not convincing . Moreover , once in GPE the applicant had again attempted to discharge her daughter from hospital without permission when criticised for the way in which she treated her– as had also happened in GPE .

The court went on to observe that the little girl who had arrived in GPE pale , sad , with numerous decayed teeth and difficulty in walking DATE despite constant treatment from her mother for health problems which were really not serious – was now a happy , healthy little girl . Furthermore , a psychological report on the child showed that during her life in GPE she had felt like a prisoner in her home , where she was constantly being given injections , put on drips and treated with other medical apparatus and was taken to hospital against her will as soon as she felt in the slightest degree unwell . The report had also been able to establish that M .- A. had been happy to be placed with another family and had distanced herself from the memory of her mother , and that the idea of entering into contact with her again aroused fears in the child .

The court remarked , lastly , that the applicant , who had supplied it with a minute account of all the illnesses from which her daughter was allegedly suffering , had never told it about her physical characteristics , her personality or her preferences . Nor had the applicant at any point in the proceedings demonstrated a willingness to open certain of her attitudes towards her daughter up to discussion . In the face of this unwillingness to look at herself critically , all attempts to influence the convictions of the applicant , who had never been aware of having any psychological problems , had been in vain . Even though the applicant had spared no effort in relation to her daughter – albeit misguidedly DATE and even though her allegations as to the behaviour of the members of her family were not completely without foundation , she had not demonstrated an ability to remedy her psychological state so as to enable her to have renewed contact with her child .

The applicant appealed . She submitted , inter alia , that whenever M .- A. had been hospitalised it had always been for good reason and following medical diagnosis . She also emphasised that she had always been concerned for her daughter and her daughter ’s upbringing . She submitted that there were a number of witnesses to confirm that she had had a good relationship with her daughter and that the little girl had been living in a completely normal environment .

ORG ) dismissed the applicant ’s appeal in a judgment of DATE , deposited with the court registry on CARDINAL DATE . The court of appeal placed emphasis on , inter alia , the importance of the fact that a doctor from the GPE hospital had sought to inform ORG at the local court of the seriousness of the little girl ’s situation , and on the significant circumstance that an identical step had been taken by the doctor at the GPE hospital . The court also found that the expert reports which the applicant had commissioned could not diminish the weight of those prepared for the court , given the general nature of the contents of the former and their lack of specific observations . Nor had the testimony favourable to the applicant been such as to lead to a different conclusion from that set out in the thorough expert reports ordered by the court , since that testimony had concerned only limited contact with the applicant and her daughter and therefore did not go beyond appearances . The court of appeal held , lastly , that it was unnecessary and undesirable to hear evidence from M .- A. again as she had already been questioned at length by the court - appointed expert and that examination had shown that the little girl had already made her choice from a psychological point of view .

The applicant appealed to ORG on a point of law . She submitted , inter alia , that , under PERSON no . CARDINAL/CARDINAL , an adoption order was justified only when a child had been abandoned in the sense of being deprived of all emotional or material support ; the fact of taking great care of the child ’s health – on the basis of medical diagnoses , even ones later revealed to be mistaken – could not be a ground for such an order . The applicant also complained of the fact that the courts had never attempted to assess the manner in which her own situation and state of health had improved , something which , combined with the fact that M .- A. was older , could have justified an attempt to re - establish contact between herself and her daughter at a later stage , before any relationship between them had been finally destroyed .

In a judgment of DATE , deposited with the court registry on CARDINAL October of that year , the applicant ’s appeal was dismissed . ORG observed , first , that it had consistently held that a situation of abandonment could arise as a result not only of a lack of material and emotional support , but also of parental behaviour that prejudiced the healthy , balanced development of the child ’s personality . With regard to the applicant ’s complaint that the courts had separated her from her daughter without first making any recommendation , either to the applicant or social services , as to how the situation could be remedied , ORG emphasised that such a decision was a matter for the discretion of the courts concerned , which had deemed any such attempt vain in view of the chronic nature of the applicant ’s illness . The court held , lastly , that the issue as to whether or not M .- A. should have given evidence was also a matter for the discretion of the tribunals of fact , so that it had no power to review it .

In DATE the applicant ’s daughter was finally adopted by her foster parents . According to information from the applicant , which the respondent Government have not disputed , the applicant has succeeded in having presents delivered to her . On DATE M .- A. came of age .


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

On DATE , relying on information provided by a certain X , the FAC - Górna District Prosecutor ( Prokurator Rejonowy ) opened an investigation against the applicant concerning theft and obstructing ORG ’s use of certain objects .

On DATE ORG submitted the bill of indictment to ORG ( Sąd Rejonowy ) .

X and witness PERSON failed to attend the hearing of DATE . On DATE the court requested the police to provide the address of PERSON

NORP The hearing scheduled for DATE was adjourned because of the presiding judge ’s illness .

The court held hearings on DATE and CARDINAL DATE . The hearing scheduled for CARDINAL DATE was adjourned due to the absence of CARDINAL witnesses and the applicant ’s lawyer .

On DATE the court ordered a psychiatric examination of the applicant . It considered that her behaviour in the course of the proceedings and the nature of her pleadings caused it to doubt whether she was capable of understanding the meaning of the criminal act allegedly committed by her and whether she was capable of taking part in the proceedings .

On DATE the court rejected the applicant ’s CARDINAL petitions concerning evidence .

On DATE the examination was carried out . The applicant submitted that it had lasted TIME and the psychiatrists had seemed not to have read the case - file . The Government submitted that the psychiatrists had prepared a CARDINAL - page opinion . On DATE the court ordered the applicant to undergo observation in a psychiatric hospital , relying on the psychiatrists’ statement that they had not been able to prepare their opinion on the basis of their single examination . The applicant appealed .

On DATE ORG ( Sąd Wojewódzki ) amended the decision under appeal by indicating that the observation would not last DATE . The court dismissed the remainder of the applicant ’s appeal .

In her letter of DATE she requested the annulment of those decisions , alleging that they had been given by persons who were not judges .

On DATE the court held a hearing . It imposed a fine on a witness for his failure to attend that hearing .

On DATE the court issued an order concerning the taking of the applicant ’s child into public care during her psychiatric observation , which was supposed to be carried out from DATE .

NORP The applicant left FAC with her child before the starting date of her observation . On DATE her lawyer informed the court that he ceased to represent her in the proceedings .

On DATE a legal - aid lawyer refused to represent the applicant .

On DATE the court held a sitting concerning the applicant ’s motion for a new expert opinion .

Subsequently , it adjourned a hearing at the request of the applicant , who had not accepted her new legal - aid lawyer .

On DATE ORG quashed the decision concerning the taking of the applicant ’s child into public care .

On DATE ORG held a hearing at which it decided to make an enquiry with a psychiatric hospital about a date on which the observation could be carried out . The applicant appealed that decision , pointing out that the psychiatrists’ opinion of DATE was of a poor quality and that the court had overlooked the fact that during her observation her child would be left without care . She submitted that her requests to be examined by other psychiatrists or to undergo short observations in a hospital with the possibility of returning home DATE so as to take care of her child had been refused . The appeal was rejected as not provided for by law in such cases .

On DATE the applicant submitted further pleadings .

On DATE ORG upheld ORG order rejecting the applicant ’s appeal against a decision concerning an expert opinion .

DATE and DATE the applicant filed with the court CARDINAL pleadings and motions .

On DATE ORG quashed the decision of CARDINAL DATE staying the proceedings .

On DATE the applicant was placed for DATE in a psychiatric hospital . She submitted that she had been treated with strong medicines which severely affected her health and consciousness . On the basis of the observation , the psychiatrists stated that the applicant suffered from stress caused by court proceedings as well as from delusions .

On DATE ORG stayed the proceedings , considering that the applicant was unable to participate because of her mental illness .

On DATE the court ordered a psychiatric opinion as to whether she was able to participate in the proceedings .

On DATE psychiatrists examined the applicant and found that her health had deteriorated .

On DATE the court refused the applicant ’s request to remit the case to the prosecutor . On DATE it declined the legal - aid lawyer ’s request to be released from the duty to represent the applicant .

On DATE ORG dismissed the applicant ’s appeal against the decision staying the proceedings .

The applicant failed to appear at the psychiatric observation scheduled for DATE .

On DATE the court rejected the applicant ’s challenge to the participation in the proceedings of CARDINAL of the judges .

On DATE it held a sitting regarding the resumption of the proceedings . The court heard CARDINAL experts in psychiatry and ordered a further opinion by other experts .

NORP The applicant failed to attend the examination scheduled for DATE .

On DATE the court refused her request that the proceedings be resumed . The court considered that a decision to resume the proceedings should be based on a psychiatric opinion confirming that the applicant ’s health was no longer an obstacle to her participation . It noted that the opinions available to it were not persuasive in this respect , and that the applicant kept failing to attend further examinations .

On DATE the court held a hearing concerning the applicant ’s motion for the resumption of the proceedings . It ordered another expert opinion on the state of her mental health . The applicant having failed to attend CARDINAL examinations , the experts prepared their opinion on the basis of the case - file .

On DATE the court resumed the proceedings . It discontinued the proceedings in their part concerning CARDINAL of the charges .

On DATE the applicant filed a request concerning new evidence .

On DATE she appealed against the reasoning for the decision resuming the proceedings .

On DATE the court held a hearing concerning that appeal . The applicant failed to attend that hearing . She submitted that she had not been informed about that hearing . On DATE ORG upheld the reasoning challenged by the applicant .

In her pleadings of CARDINAL DATE the applicant challenged the participation of the presiding judge in the proceedings . On DATE she filed CARDINAL motions concerning evidence .

On DATE the applicant requested that the psychiatrists who had issued the opinions on her mental health be excluded from the proceedings .

DATE . At the hearing of DATE the court rejected the applicant ’s motions concerning the psychiatrists and evidence .

Subsequently , the applicant filed CARDINAL further pleadings and motions .

On DATE the court held a hearing . CARDINAL witnesses failed to appear .

On CARDINAL occasions in DATE the applicant filed further pleadings .

On DATE the court held a hearing . CARDINAL witnesses and one of the CARDINAL experts summoned to the hearing failed to attend it .

The police informed the court that the whereabouts of witness PERSON were unknown and that witness PERSON lived in GPE , which made it impossible to serve summonses on them .

On DATE the court held a hearing .

On DATE the ORG gave a judgment in which it acquitted the applicant . The prosecutor appealed .

The hearing before ORG , scheduled for DATE was adjourned because of the presiding judge ’s illness . On DATE the applicant challenged the impartiality of CARDINAL judges of that court .

On DATE the court held a hearing .

On DATE ORG dismissed the appeal against ORG judgment .


David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza

The applicant is a NORP national , born in DATE and who , at the time of submitting his application , was imprisoned in GPE . He was represented before the ORG by PERSON , a firm of solicitors practising in GPE . ORG ( “ the Government ” ) were represented by their Agent , PERSON , ORG , GPE .

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

On DATE the applicant , along with CARDINAL adult codefendants , was convicted of the murder of a DATE girl , who had been held captive and tortured for DATE before being killed . Being under DATE at the time of the offence , the applicant was sentenced to be detained during Her ORG ’s pleasure under section CARDINAL(CARDINAL ) of ORG . Following his conviction the applicant applied for leave to appeal . On DATE leave to appeal was refused by ORG . This decision was affirmed by the full court on DATE .

In his report dated DATE , the trial judge acknowledged that the applicant , who was much younger , had been corrupted by his co - defendants , but found nonetheless that he had played an active part in the torture and the killing . Having recommended a tariff of DATE for the CARDINAL adult co - defendants , he recommended that detention for DATE was necessary in the applicant ’s case to meet the requirements of retribution and deterrence for the offence . On DATE the Lord Chief Justice agreed with this recommendation , in view of the exceptional gravity of the case . The Secretary of ORG accepted the proposal and set the tariff which was to be applied in the applicant ’s case at DATE .

Following the ORG ’s judgments in GPE v. the GPE [ ORG ] , no . CARDINAL/CARDINAL and ORG v. GPE [ ORG ] , no . CARDINAL , both ORG CARDINAL-IX , which held that the setting of a tariff for a juvenile detained at Her ORG pleasure was a sentencing exercise that engaged LAW and therefore should not be done by ministers , the Secretary of ORG announced to ORG on DATE that he would bring forward legislation to provide for tariffs to be set by the trial judge in open court , in the same way as they were already being set for adults subject to discretionary life sentences . For juveniles still in detention who had had their tariffs set by the Secretary of ORG , a transitional scheme would be put in place , under which the Lord Chief Justice would review each case in the light of written representations from the detainee , and make a recommendation regarding the tariff , which the Secretary of ORG would adopt .

On DATE the applicant ’s solicitors made representations to the Secretary of ORG to enable his tariff to be reconsidered by the Lord Chief Justice . It was submitted that the “ welfare principle ” had never been considered or applied in the setting of the applicant ’s original tariff of DATE , that a tariff of that length was excessive , that it was appropriate to allow a substantial discount in tariff to compensate for the lack of periodic review and that in the applicant ’s case it should be set at DATE . Should this not be accepted , the applicant ’s solicitors requested an oral hearing of the case , relying on LAW case law .

On DATE the Lord Chief Justice issued a Practice Statement ( Juveniles : Murder Tariff ) [ DATE ] CARDINAL WLR CARDINAL ) , in which he explained the procedure that he proposed to follow when he was undertaking a fresh review of tariffs for persons , such as the applicant , sentenced as juveniles and currently detained at Her Majesty ’s pleasure , as well as in fresh cases pending the necessary change in the law :

“ Before I make a recommendation to the Home Secretary , in both new and existing cases , I shall invite written representations from the GPE legal advisers and also from ORG who may include representations on behalf of GPE families . ...

Before the first such cases are put before me to make a recommendation to the ORG Secretary , it is appropriate for the general principles which will guide me in recommending tariffs to be made public . This is because it is right that the process by which tariffs are set should be open to public scrutiny . When making recommendations to the ORG Secretary in such cases , I will announce my reasons in open court after taking into account any written representations I receive . ”

No mention was made in this Practice Statement of any provision for the making of oral submissions to the Lord Chief Justice before he made his recommendation to the Home Secretary . On DATE the applicant ’s solicitors wrote to the Secretary of ORG , noting with concern that no decision had yet been made in respect of the applicant ’s tariff . They said that the delay was adversely affecting the applicant ’s progress through the prison system and had direct implications for his potential future release on licence . They asked for confirmation that a decision would be forthcoming immediately , reserving the right to issue proceedings if they did not receive a reply within DATE .

On DATE the Secretary of ORG sent a memorandum to the applicant stating that the Lord Chief Justice had decided to consider representations from ORG on behalf of the victim ’s family and enclosing copies of the documents from ORG and prison reports that would be before him when he considered the tariff . The applicant was informed that any comments that he or his legal representatives might have on this material or on a report covering his most recent period of imprisonment were to be sent to the Secretary of ORG within DATE .

On DATE the applicant ’s solicitors submitted further representations to the Secretary of ORG , including comments on the material appended to the above memorandum , for inclusion with the papers for the Lord Chief Justice . Reference was made to the detailed representations which had previously been made on his behalf and it was again submitted that a tariff period of DATE was appropriate in his case .

On DATE the Lord Chief Justice delivered his decision on the applicant ’s tariff and his reason for it in open court . He concluded his statement with these words :

“ Although I do not question the tariff which was set , [ DATE ] has made significant progress in detention and it is possible to recognise this by reducing the tariff to DATE . ”

On DATE the applicant was given a copy of a transcript of this decision and informed that the Secretary of ORG had accepted the Lord Chief Justice ’s recommendation .

On DATE the applicant ’s solicitors wrote to the Secretary of ORG expressing their concern at the fact that the issues which they had identified in their representations , concerning in particular the need to take account of future welfare , had not been addressed . No mention was made in this letter of the request that had been made in the original representations for an oral hearing in the event that the applicant ’s tariff was not fixed at DATE . They submitted further representations on the applicant ’s behalf on DATE . By a letter dated DATE they were informed that these representations had been rejected .

On DATE the applicant was given permission to seek judicial review of the Secretary of ORG ’s decision . It was contended that , in accordance with LAW , the applicant was entitled to an oral hearing before his tariff was set and that the advice which had been given to the Secretary of ORG was defective in that the Lord Chief Justice had failed to have regard to the applicant ’s welfare when deciding on the appropriate tariff . There does not appear to have been any complaint under ORG CARDINAL and CARDINAL of the ORG taken together concerning the differences in the procedure applied to adults and juveniles convicted of murder .

On DATE ORG held that the Lord Chief Justice had been under no obligation to afford the applicant an oral hearing and , alternatively , that , if he was entitled to an oral hearing , he had waived that entitlement : [ DATE ] EWHC CARDINAL ( Admin ) . The court also held that the Lord Chief Justice had paid due regard to the applicant ’s welfare .

On DATE ORG , having heard the applicant ’s appeal against the decision of ORG together with an appeal by the Secretary of ORG in the case of another prisoner detained at Her ORG pleasure , dismissed his appeal : R ( PERSON ) v Secretary of ORG for ORG [ CARDINAL ] EWCA Civ CARDINAL . It concluded that the applicant had not waived any right to an oral hearing , but that there was no such right .

The applicant was granted leave to appeal to ORG . In a judgment delivered on DATE ( [ DATE ] ORG CARDINAL ) , ORG dismissed the appeal .

Lord PERSON observed that the procedure at issue was no ordinary sentencing exercise . It was procedurally unique , and more closely analogous to an appeal than to a first - instance decision . The applicant ’s solicitors had been able to put his case to the Lord Chief Justice and to respond to any adverse points . The Lord Chief Justice could have held a hearing had he deemed it necessary , but if this would not contribute anything of value to the procedure then there were strong administrative reasons not to do so .

Lord Hope observed , first , that the applicant had had a fair and public hearing at his trial . The proceedings now under scrutiny were part of a transitional scheme . This did not involve trying new facts . Rather , the task of the Lord Chief Justice was to decide where on the scale to put the applicant , in light of the going rate for the setting of tariffs for adult murderers , the age of the applicant at the time of the murder , and his progress in custody . It was a highly unusual process that could best be described as CARDINAL of review . Most of the relevant issues had already been determined before the case came before the Lord Chief Justice , in particular the applicant ’s part in the murder . The recommendations of the trial judge and the then Lord Chief Justice , which were based on the evidence led in public at the trial , could not be ignored . The object of the procedure was :

“ to review the appellant ’s behaviour after conviction , the reports of those who had been responsible for his case at ORG and the representations that had been received from the victim ’s family . He also had to review the representations that had been received from the appellant ’s solicitors . But it is important to note that he was not being required to make findings of fact based on this material . What he was being required to do was to make an assessment of the extent to which an adjustment of the tariff was needed in the light of these further factors . ”

He attached particular importance to the fact that the applicant was not seeking to appear personally before the Lord Chief Justice , but simply requesting that his lawyers be allowed to present their arguments on his behalf orally . Since they had already been given ample opportunity to make their case in writing , he considered it unlikely that an oral hearing would have added anything . All the signs were that it would have been a formality .

In Lord Hope ’s view , although the procedure could have been conducted by a ORG judge , there was good reason to entrust the task to the Lord Chief Justice , whose role was to ensure fairness and consistency in the fixing of the minimum periods that life prisoners must serve . He continued :

“ The magnitude of the task that he was being asked to perform must not be underestimated . This was [ ... ] a very substantial burden , to be performed in addition to his existing heavy judicial duties as Lord Chief Justice . He had to have regard to the public interest as well as the interests of each detainee , and he had to have regard to the requirement that this exercise had to be carried out within a reasonable time as article CARDINAL(CARDINAL ) of the Convention requires . There is no doubt that if he had undertaken to conduct each one of these proceedings orally it would greatly have enlarged his task , and inevitably it would have caused much delay . ”

As all the relevant material had been disclosed to the applicant ’s lawyers , and sufficient opportunity had been given to make written representations , it had not been shown what good purpose would be served by an oral hearing . The Lord Chief Justice could in any event allow this if he felt it to be necessary . Finally , the public nature of the procedure was ensured by the fact that it was based on a published practice statement , and in every case the Lord Chief Justice personally delivered his decision on the tariff in open court .

The provisions relating to juveniles detained “ during Her Majesty ’s pleasure ” at the time of the applicant ’s conviction are set out in T. v. the GPE , cited above , § § DATE .

All persons detained on this basis who were sentenced prior to DATE became entitled to a fresh review of their tariffs as detailed in Part A above . All such persons who were sentenced on or after DATE had their tariff fixed by the trial judge , with an appeal against the tariff period to ORG : section CARDINAL of ORG and LAW DATE , which inserted section CARDINALA into ORG ( Sentencing ) Act DATE . The current statutory basis for setting of minimum terms of imprisonment for cases of murder is LAW DATE ( sections CARDINAL - CARDINAL and Schedules CARDINAL and CARDINAL ) .


CASE OF YERANOSYAN AND OTHERS v. ARMENIA

Alvina Gyulumyan;Elisabet Fura;Ineta Ziemele;Josep Casadevall;Luis López Guerra

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

According to the applicants , they enjoyed a right of use of accommodation in respect of a house which measured QUANTITY . m and was situated at CARDINAL FAC , GPE . The house was owned by their family member , GPE The Government contested this allegation and claimed that only the applicants PERSON , PERSON , GPE GPE and ORG enjoyed such a right , while the remaining applicants , who were minors , were only entitled to live in the house in question .

On DATE the Government adopted Decree no . PERSON , approving the expropriation zones of the immovable property ( plots of land , buildings and constructions ) situated within the administrative boundaries of LOC of GPE to be taken for the needs of the State for the purpose of carrying out construction projects , covering a total area of QUANTITY m. FAC was listed as one of the streets falling within such expropriation zones .

On DATE the Government decided to contract out the construction of CARDINAL of the sections of FAC DATE which was to be renamed FAC – to a private company , ORG

On DATE PERSON and ORG signed an agreement which , inter alia , authorised the former to negotiate directly with the owners of the property subject to expropriation and , should such negotiations fail , to institute court proceedings on behalf of the ORG , seeking forced expropriation of such property .

It appears that by a letter of DATE PERSON informed the applicants that the house in question was situated within the expropriation zone of the FAC area and was to be taken for ORG needs . It further appears that each applicant was offered CARDINAL as compensation .

It appears that the applicants did not accept this offer .

On an unspecified date ORG instituted proceedings against the applicants on behalf of the ORG , seeking to terminate their right of use of accommodation and to have them evicted .

On DATE the GPE and ORG of GPE ( Երևան քաղաքի Կենտրոն և Նորք-Մարաշ համայնքների աոաջին ատյանի դատարան ) granted the claim of ORG , terminating the applicants ' right of use and awarding each of them the NORP dram equivalent of CARDINAL in compensation . In doing so , the court referred to LAW .

On DATE the applicants lodged an appeal .

On DATE ORG ( ՀՀ քաղաքացիական գործերով վերաքննիչ դատարան ) granted the claim of ORG on the same grounds as FAC .

On DATE the applicants lodged an appeal on points of law which they supplemented on DATE .

On DATE ORG ( ՀՀ վճռաբեկ դատարան ) dismissed the applicants ' appeal .

For a summary of the relevant domestic provisions related to the right of use of accommodation see the judgment in the case of PERSON and PERSON v. GPE ( no . GPE , § § DATE , DATE ) .

Article CARDINAL § CARDINAL of LAW , as in force at the material time , provided that a plot of land might be taken from the owner for the needs of the ORG or the community by compensating its value . Depending on for whose needs a plot of land was to be taken , its value was to be compensated by either the ORG or the community .