ITEMID: 001-110949
LANGUAGEISOCODE: ENG
RESPONDENT: EST
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF JULIN v. ESTONIA
IMPORTANCE: 3
CONCLUSION: 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);No violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);No violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Access to court);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Access to court);Non-pecuniary damage - award
JUDGES: Erik Møse;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Oliver Kask;Peer Lorenzen
TEXT: 6. The applicant was born in 1981 and lived in Tallinn until his arrest. He is currently serving a prison sentence.
7. In 2007 the applicant was serving a prison sentence in Murru Prison.
On 29 March 2007 he was placed in a punishment cell for thirty days as a disciplinary penalty. Initially, he was placed in punishment cell no. 140. On 9 April 2007 he was transferred to punishment cell no. 122. He made several applications and complaints to the prison director concerning the condition of the cells.
8. On 1 June 2007 the applicant’s marriage to I. was dissolved.
9. On 4 July 2007 the applicant made a request to the prison administration to be allowed an overnight visit from his family. He was given authorisation for a visit for 7 and 8 August 2007.
10. On 11 July 2007 the applicant was assaulted by co-prisoners in Murru Prison. He sustained thirteen stab wounds. He was taken to a hospital in Tallinn and later to the Prison Hospital in Maardu. On 16 July 2007 he was taken back to Murru Prison, where he was placed, for security reasons, in cell no. 147. That cell was in the closed disciplinary section of the prison. He was kept in cell no. 147 for ten days.
11. On 27 July 2007 the director of Murru Prison requested the Ministry of Justice to transfer the applicant to Tartu Prison for security reasons. On 1 August 2007 the Ministry acceded to that request. Although the applicant sought postponement of his transfer so that he could receive the family visit planned for 7 and 8 August, he was transferred to Tartu on 7 August 2007 and no visit took place.
12. Upon arrival at Tartu Prison the applicant was placed in the reception section. On 17 August 2007 his request for an overnight visit was dismissed since such visits were not allowed in the reception section. A person may be kept in the reception section for up to three months.
13. On 19 September 2007 the applicant sewed his mouth together with five stitches and announced that he was commencing a hunger strike, apparently mainly because of the prison administration’s failure to place him in a different cell despite his requests referring to the dangerousness of V., with whom he was sharing the cell. Initially he refused medical assistance, but it appears that the stitches were removed on the next day by medical staff and the applicant terminated his hunger strike.
14. On 21 September 2007, finding that the applicant was suicidal and might continue to harm himself, the prison director decided to apply certain additional security measures to him. In particular, he ordered the applicant’s placement in a locked isolation cell and prohibited him from wearing personal clothing or using personal effects. The necessity of the continued application of these measures was to be reviewed once a month.
15. The complaints against the administration of Murru Prison (see paragraphs 16 and 21 below) were originally lodged with the Tallinn Administrative Court. As the applicant was subsequently transferred to Tartu Prison, on 14 August 2007 the Tallinn Administrative Court transferred the cases to the Tartu Administrative Court, which had jurisdiction over them after the applicant’s transfer.
16. On 17 May 2007 the Tallinn Administrative Court received a complaint from the applicant about Murru Prison. He claimed compensation for non-pecuniary damage caused by the degrading conditions in punishment cells nos. 140 and 122. He argued that the windows of the cells had been dirty and could not be opened, there had been no fresh air, the temperature had been too low and the lighting too dim; for two days there had been no lighting at all as the bulb had burnt out; the noise level had been high, the plumbing had been inadequate and blockages had occurred; there had been an unpleasant smell, the washbasin had been directly above the open toilet, the bedding had been dirty, and so on. He requested exemption from the State fee (riigilõiv) payable on the complaint.
17. On 22 October 2007 the Tartu Administrative Court dismissed the applicant’s request for exemption. It observed that the applicant had no means to pay the State fee of 1,000 kroons (EEK) (corresponding to approximately 64 euros (EUR)), but considered that this fact did not automatically mean that he should be granted exemption. The purpose of the possibility of granting an exemption was to secure the right to a court regardless of a person’s economic situation. At the same time, the requirement to pay the State fee served the purpose of discouraging the lodging of ill-considered complaints. In deciding whether to exempt an indigent person from the obligation to pay the State fee, a court had to make a preliminary assessment of the necessity and importance of the protection of the person’s rights. The more important the right to be protected and the fewer the possibilities for protecting it by other means, the more justified was the exemption from the State fee. The opposite was also true: it was not justified to exempt an indigent person from the State fee in cases where there were no rights to be protected or the matter was of no importance for the person concerned. The Administrative Court considered that the applicant’s claim was not a matter of importance for him. The court considered that important matters in this context were ones relating to a person’s essential interests or his or her way of life. The receipt of a pecuniary award for alleged emotional and physical suffering of a temporary nature was not of such importance as to justify his exemption from the State fee. The court referred to the State Legal Aid Act (Riigi õigusabi seadus), which stipulated that State legal aid was not granted if it was requested in order to claim compensation for non-pecuniary damage and there was no predominant public interest involved. The court also noted that the applicant had directly applied to an administrative court, whereas he could have first claimed compensation from the prison administration without needing to pay a State fee. In respect of the well-foundedness and prospects of success of the applicant’s complaint, the court considered that the applicant’s placement in a punishment cell might have caused him emotional hardship and inconvenience but the existence of the non-pecuniary damage that allegedly ensued was questionable and had not been adequately substantiated in the complaint.
18. On 6 December 2007 the Tartu Court of Appeal dismissed the applicant’s appeal against the Administrative Court’s decision. The Court of Appeal made reference to the Supreme Court’s judgment of 6 September 2007 in case no. 3-3-1-40-07 (see paragraph 93 below), according to which, in assessing whether an indigent person’s exemption from the State fee was justified, a court inevitably had to make a preliminary assessment of the necessity and importance of the protection of the complainant’s rights. It referred to the circumstances of the applicant’s case and found that – assuming that all of the applicant’s allegations were true – the applicant might have suffered inconvenience but it was questionable whether he had sustained such non-pecuniary damage as required compensation. It considered that the applicant’s claim for damages lacked prospects of success.
19. The applicant appealed to the Supreme Court. On 9 January 2008 the Supreme Court granted the applicant’s request for exemption from the payment of security (kautsjon) for his appeal. On 5 March 2008 the Supreme Court declined to hear the applicant’s appeal.
20. As the applicant’s request for exemption from the State fee had been finally turned down by the Supreme Court’s decision, on 14 March 2008 the Tartu Administrative Court gave the applicant fifteen days to pay the State fee. On 3 April 2008 the Administrative Court returned the applicant’s complaint to him as he had failed to pay the fee. The applicant sought to appeal against that decision but since he failed to bring the appeal into conformity with the applicable requirements, as requested by the Administrative Court, on 29 April 2008 the court refused to examine the appeal and returned it to the applicant.
21. On 13 August 2007 the applicant lodged a complaint against Murru Prison with the Tallinn Administrative Court. He claimed compensation for non-pecuniary damage caused by the degrading conditions in cell no. 147. In particular, he submitted that the window of the cell had been dirty and could not be opened, there had been no fresh air, the temperature had been too low and the humidity level too high, the toilet and washbasin had been in the same corner, leading to difficulties in their use, there had been no table, chairs or hangers for clothes, the noise level had been high, the bedding had been dirty. In the same complaint he argued that his transfer from Murru to Tartu on the day of the planned family visit had been unlawful, and claimed compensation for a violation of his right to family life. He requested exemption from the State fee payable on the complaint.
22. On 29 October 2007 the Tartu Administrative Court severed these two complaints into two separate sets of proceedings: case no. 3071624 concerning the conditions in cell no. 147 and case no. 3072184 concerning the family visit (in respect of the latter, see paragraph 27 below).
23. On 29 October 2007 the Tartu Administrative Court dismissed the applicant’s request for exemption from the State fee. The reasons for its decision were substantially the same as those given in the Tartu Administrative Court’s decision of 22 October 2007 in administrative case no. 3-07-1000 (see paragraph 17 above).
24. On 5 December 2007 the Tartu Court of Appeal dismissed the applicant’s appeal against the Administrative Court’s decision. Its reasoning was similar to that of the Tartu Court of Appeal’s decision of 6 December 2007 in case no. 3-07-1000 (see paragraph 18 above).
25. The applicant appealed to the Supreme Court. On 9 January 2008 the Supreme Court granted the applicant’s request for exemption from the payment of security for his appeal. On 5 March 2008 it declined to hear the applicant’s appeal.
26. As the applicant’s request for exemption from the State fee had been finally turned down by the Supreme Court’s decision, on 14 March 2008 the Tartu Administrative Court gave the applicant fifteen days to pay the State fee. On 3 April 2008 the Administrative Court returned the applicant’s complaint to him as he had failed to pay the fee. The applicant sought to appeal against that decision but since he failed to bring the appeal into conformity with the applicable requirements, as requested by the Administrative Court, on 29 April 2008 the court refused to examine the appeal and returned it to the applicant. He sought to appeal against that decision but since he failed to bring the appeal into conformity with the applicable requirements, as requested by the Administrative Court, on 29 April 2008 the court refused to examine the appeal and returned it to him.
27. On 29 October 2007 the Tartu Administrative Court severed the applicant’s complaints into separate sets of proceedings (see paragraph 22 above) and registered under no. 3-07-2184 the complaint that his transfer from Murru to Tartu on the day of the planned family visit had been unlawful. In this complaint the applicant claimed compensation for a violation of his right to family life. He also requested exemption from the State fee payable on the complaint.
28. Also on 29 October 2007, the Tartu Administrative Court ruled on the applicant’s request for exemption. It gave reasons substantially the same as those given in its decision of 22 October 2007 in administrative case no. 3-07-1000 (see paragraph 17 above). However, since it was not convinced that the complaint was devoid of all prospects of success, it granted the applicant partial exemption from the State fee and ordered him to pay EEK 80 (EUR 5) instead of the full fee of EEK 1,000 (EUR 64).
29. On 19 November 2007 the Tartu Court of Appeal dismissed the applicant’s appeal against the Administrative Court’s decision, relying on reasoning similar to that of its decision of 6 December 2007 in case no. 307-1000 (see paragraph 18 above).
30. The applicant appealed to the Supreme Court. On 9 January 2008 the Supreme Court granted the applicant’s request for exemption from the payment of security for his appeal. On 5 March 2008 the Supreme Court declined to hear the applicant’s appeal.
31. As the applicant’s request for full exemption from the State fee had been finally turned down by the Supreme Court’s decision, on 14 March 2008 the Tartu Administrative Court gave the applicant fifteen days to pay the State fee. On 3 April 2008 the Administrative Court returned the applicant’s complaint to him as he had failed to pay the fee. He sought to appeal against that decision but since he failed to bring the appeal into conformity with the applicable requirements, as requested by the Administrative Court, on 29 April 2008 the court refused to examine the appeal and returned it to him.
32. On 25 September 2007 the Tartu Administrative Court received a complaint from the applicant about Tartu Prison. He claimed compensation for non-pecuniary damage caused by the regime applied to him in Tartu Prison. In particular, he was dissatisfied that he had not been allowed to receive an overnight visit, he had not been able to make phone calls, to visit a gym, to take part in the Estonian language classes, or to read fresh newspapers and magazines. He had been placed in a cell with a dangerous prisoner convicted of murder. After his placement in the locked isolation cell, he had been prohibited from using personal effects and thereby his correspondence had also been restricted for two days. Furthermore, he considered that the restrictions imposed on taking walks, his placement in conditions threatening his life and health, his placement in a cell designated for use by aggressive persons, and the application of additional security measures had been unlawful. He requested exemption from the State fee payable on the complaint.
33. On 25 October 2007 the Tartu Administrative Court dismissed the applicant’s request for exemption. The reasons for its decision were substantially the same as those given in its decision of 22 October 2007 in administrative case no. 3-07-1000 (see paragraph 17 above).
34. On 6 December 2007 the Tartu Court of Appeal dismissed the applicant’s appeal against the Administrative Court’s decision. It employed reasoning similar to that of its decision of 6 December 2007 in case no. 307-1000 (see paragraph 18 above).
35. The applicant appealed to the Supreme Court. On 9 January 2008 the Supreme Court granted the applicant’s request for exemption from the payment of security for his appeal. On 5 March 2008 the Supreme Court declined to hear the applicant’s appeal.
36. As the applicant’s request for exemption from the State fee had been finally turned down by the Supreme Court’s decision, on 14 March 2008 the Tartu Administrative Court gave the applicant fifteen days to pay the State fee. On 3 April 2008 it returned the applicant’s complaint to him as he had failed to pay the fee. He sought to appeal against the latter decision but since he failed to bring the appeal into conformity with the applicable requirements, as requested by the Administrative Court, on 29 April 2008 the court refused to examine the appeal and returned it to him.
37. On 31 May 2007 the director of Murru Prison ordered the applicant’s placement in a punishment cell for nineteen days as a disciplinary sanction for concluding a transaction prohibited in prison (sale of a radio tape recorder to another prisoner). On 20 June 2007 he was placed in cell no. 155.
38. On 13 November 2007 the applicant lodged a complaint with the Tartu Administrative Court (case no. 3-07-2318). He considered that the order of the prison director had in itself been unlawful as there had been no grounds for his punishment. Further, he complained about the conditions of detention in cell no. 155. According to the applicant, the bars on the window of the cell had limited the access of natural light through the dirty glass and had prevented the window from being opened for ventilation. The temperature in the cell had been too low, the noise level high and the artificial lighting insufficient. The washbasin had been directly above the toilet, preventing its normal use. The toilet had been an open one; it had been in an unsanitary state and spread an unpleasant smell, and the bedding had been dirty. The applicant claimed compensation for non-pecuniary damage, the amount to be determined by the court. He requested exemption from the State fee payable on the complaint.
39. On 10 December 2007 the Tartu Administrative Court dismissed the applicant’s request for exemption. The reasons for its decision were substantially the same as those given in its decision of 22 October 2007 in administrative case no. 3-07-1000 (see paragraph 17 above).
40. On 21 January 2008 the Tartu Court of Appeal dismissed the applicant’s appeal against the Administrative Court’s decision. Its reasoning was similar to that of the Tartu Court of Appeal’s decision of 6 December 2007 in case no. 3-07-1000 (see paragraph 18 above).
41. The applicant appealed to the Supreme Court. On 20 February 2008 the Supreme Court granted the applicant’s request for exemption from the payment of security for his appeal. On 27 March 2008 the Supreme Court declined to hear the applicant’s appeal.
42. As the applicant’s request for exemption from the State fee had been finally turned down by the Supreme Court’s decision, on 7 April 2008 the Tartu Administrative Court gave the applicant fifteen days to pay the State fee. On 24 April 2008 it returned the applicant’s complaint to him as he had failed to pay the fee. On 26 May 2008 the Tartu Court of Appeal dismissed his appeal against the Administrative Court’s decision. On 19 June 2008 the Supreme Court granted the applicant’s request for exemption from the payment of security for his appeal. By a decision of 20 June 2008 the Supreme Court declined to hear the applicant’s appeal.
43. On 26 May 2009 the applicant was strip-searched on his return to Tartu Prison from an administrative court hearing.
44. According to the applicant, out of seven inmates who were escorted to the prison together in the same vehicle, he was the only one searched in such a manner. In his application to the Court the applicant submitted that he had been searched in the presence of five prison officers. He had been ordered to undress, lift his sexual organ and squat. He had had to open his mouth and his ears had been visually inspected. According to the applicant, the officers had laughed at him. Prison officer O. had also wanted to carry out a digital rectal examination but the applicant had refused, arguing that such an examination had to be performed by a doctor. He had then been taken to the medical unit and a female doctor had carried out the procedure in the presence of two officers. The applicant’s request for a male doctor had been rejected and he had been warned that force could be used if he refused to comply.
45. In the applicant’s subsequent observations to the Court it was submitted that he had been searched, naked, by a doctor in front of seven prison officers.
46. According to the Government the applicant had protested when ordered by the prison officers to go to the search room after his return from the court hearing. Relying on the information provided by the prison, the Government submitted that after the order for the search had been given, the applicant himself had made a show of lowering his trousers in the search room. A male prison officer had then ordered the applicant to bend over and spread his buttocks. The applicant had refused and demanded a doctor. He had then been taken to the medical unit, where the examination had been conducted by a female doctor. There were no male doctors in Tartu Prison.
47. There is a copy of a report on the search in the case file which indicates that the search was carried out by five prison officers, whose names appear on the report along with their signatures. It is stated in the report that a “full search” was performed and that no items prohibited in prison were found. The report does not describe the way in which the search was carried out. It further contains a statement by the applicant that he had not agreed to the search since he had been naked and felt his human dignity was being degraded.
48. According to the applicant, O. subsequently instituted disciplinary proceedings for non-compliance with his orders. There is no information on the outcome of these proceedings.
49. The applicant made several complaints and applications to the prison administration, the Ministry of Justice and the Tartu Administrative Court in connection with his search of 26 May 2009.
50. Notably, on 8 June 2009 the applicant claimed EEK 30,000 (EUR 1,920) from Tartu Prison for non-pecuniary damage caused by the search, which he stated had been carried out in a degrading manner.
51. The prison director replied by a letter of 31 July 2009. He considered that the applicant’s claim could not be dealt with since it was unclear what, in particular, had rendered the actions of the prison administration unlawful in the applicant’s opinion. According to the director it was mandatory to search a prisoner when he or she entered or left the prison. The strip search also had a basis in legislation. The director gave the applicant two weeks to amend his claim and requested him to provide further information as follows:
“1. ... what rendered the search unlawful and the officers culpable (milles seisnes läbiotsimise õigusvastasus ja ametnike süü);
2. what damage you sustained, that is, which of the consequences listed in sections 8 and 9(1) of the State Liability Act (Riigivastutuse seadus) form the basis for your claim for compensation;
3. by what evidence (documentary evidence, witnesses, inspection of the scene, expert opinion) can you prove the existence of the harmful consequences. If you cannot provide the evidence you must indicate where the evidence can be found so that the prison may access it;
4. if financial compensation is claimed, justification for the sum claimed and the reason why you consider that the damage caused can only be compensated by money.”
52. On 1 August 2009 the applicant amended his claim, stating that the officers had violated his privacy and mocked him. A search report drawn up on 26 May 2009 and signed by five officers served as proof. The applicant also pointed out that he had made a number of written complaints to the prison director about the search in question in which everything had been described in detail. He submitted that the officers had caused him deep emotional pain, offended him and caused him resentment. Since then, he had suffered psychologically. He referred to Article 25 of the Constitution of the Republic of Estonia (Eesti Vabariigi põhiseadus), which stipulated that everyone had a right to compensation for non-pecuniary and pecuniary damage caused by the unlawful actions of another. He evaluated the damage caused to him at EEK 30,000 and considered that the prison officers, and the prison, were liable for their actions.
53. On 1 September 2009 the prison administration informed the applicant that in their opinion he had failed to remedy the deficiencies in his claim. The administration had no information which indicated that the search of the applicant had been unlawful or that the prison officers had wrongfully caused him more inconvenience than was inevitably involved in detention. Therefore, the administration deemed it unnecessary to assess whether the applicant’s claim was justified. They refused to consider the claim and informed the applicant that the proceedings were thereby terminated and he had no right to lodge a further complaint with an administrative court in the same matter.
54. Nevertheless, on 14 September 2009 the applicant lodged a complaint with the Tartu Administrative Court (case no. 3-09-2015). He claimed EEK 30,000 in compensation for non-pecuniary damage caused by the strip search, which had been carried out in a degrading manner.
55. By a decision of 24 September 2009 the Administrative Court refused to examine the complaint since the applicant had failed to comply with the mandatory procedure, which required a prior extra-judicial adjudication of the matter.
56. On 14 December 2009 the Tartu Court of Appeal dismissed the applicant’s appeal.
57. On 27 January 2010 the Supreme Court declined to hear his appeal.
58. On 22 October 2009, at around 10 a.m., an incident occurred between the applicant and prison officers. According to the official reports, the applicant requested permission to store some documents in the storage room of the disciplinary section of the prison and to take out certain legal texts that he had previously stored there. A prison officer noticed that the applicant had hidden tobacco between the papers, and tobacco was not allowed in the punishment cell. A conflict arose and the applicant became aggressive, used offensive language against the officers and, after being taken to his cell, banged at length against the door. When an officer requested him to complete a letter of explanation, the applicant hit his hand while grabbing the paper from him, crumpled the paper and threw it on the floor. He also threatened the officers with physical violence after his release.
59. According to report no. 57 on the use of the means of restraint, it was necessary to confine the applicant to a restraint bed “because [he became] aggressive when prohibited from taking tobacco to the punishment cell, made threats, used foul language, banged at length against the door, struck a prison officer on the hand while taking from him a letter of explanation [form], did not comply with the lawful orders of the prison officers.” It was noted in the report that the applicant had been warned in advance that measures of restraint could be applied, and that he had not needed medical assistance after the use of the means of restraint.
60. The applicant was confined in the bed from 10.40 a.m. to 7.30 p.m. on 22 October 2009. His condition was monitored once an hour, when the necessity of the continued use of the means of restraint was assessed on the basis of his behaviour.
61. The report contains the following entries. At 11.40 a.m., 12.40 p.m. and 1.40 p.m.: “[use of the restraint measures] to be continued, [the applicant is] aggressive and using foul language”. At 2.40 p.m. and 3.40 p.m.: “[use of the restraint measures] to be continued, obscenities”. At 4.40 p.m. and 5.40 p.m.: “[use of the restraint measures] to be continued, behaviour abnormal, [the applicant is] silent”. At 6.40 p.m.: “[use of the restraint measures] to be continued, provocative behaviour”. At 7.30 p.m.: “[use of the restraint measures] to be discontinued, [the applicant] has calmed down.” The report also contains entries according to which medical staff checked on the applicant’s situation at 11.15 a.m. and 7.30 p.m.
62. According to the applicant, he had had no intention of taking tobacco from the store room; rather, he had been provoked by an officer. He was taken back to his cell, where he refused to write a letter of explanation and refused to talk to the officers, who were demanding explanations. After twenty minutes, officers in masks and equipped with shields burst into the cell, surrounded him, threw him to the floor and handcuffed him, even though he was not resisting but merely verbally expressing his opinion about the unlawful actions of the officers. He was then confined to the restraint bed. He was not given any drink or food and was prevented from going to the toilet for nine hours.
63. Also on 22 October 2009, the prison administration ordered the application of further measures of restraint in respect of the applicant. In order to prevent the commission of serious offences and to ensure overall security in the prison, the applicant was to wear handcuffs at all times when outside his cell except in the walking yard. Handcuffs were also to be used within his cell whenever an officer needed to enter it. The additional measures were to remain in place until necessary and reviewed on the first Monday of every month.
64. On 23 October 2009, at 8 a.m., according to reports drawn up by prison officers, the applicant did not comply with a lawful order to be handcuffed, and he used offensive language. Physical force had to be employed to put the handcuffs on him. According to a report drawn up by a nurse, the applicant had an abrasion measuring 0.5 cm by 0.5 cm next to his left eye and four bluish marks on his neck.
65. According to the applicant, the officers wanted to put handcuffs on him but he asked to be shown an official decision authorising the use of this means of restraint. After ten minutes officers in masks and equipped with shields burst into the cell, hit him with a shield and pushed his face against the window bars. The applicant protested; an officer, O., told him to shut up and grabbed his neck. When the applicant started screaming owing to suffocation, O. placed his fingers in his nostrils and started to pull him up, causing him severe pain. He was then forced to the floor and handcuffed. After two minutes the handcuffs were taken off, he was told to lie face down on the floor and the officers left the cell. Then a doctor came; she examined him and left. The door was closed.
66. On 14 April 2010 the application of the measure of restraint (the use of handcuffs) ordered in respect of the applicant on 22 October 2009 was terminated.
67. Two separate sets of disciplinary proceedings were initiated against the applicant, the first in respect of the use of offensive language against prison officers and hitting an officer on 22 October 2009, and the second concerning his failure to comply with the lawful order of an officer and the use of offensive language on 23 October 2009.
68. Two reports on the disciplinary proceedings (dated 11 November and 13 November 2009) were drawn up. Statements by the prison officers involved in the incidents and by the applicant, as well as report no. 57 on the use of the means of restraint, and a medical report, were appended to the reports on the disciplinary proceedings.
69. On 20 November 2009 two separate decisions were taken sanctioning the applicant by twenty days’ confinement in a punishment cell in each case.
70. On 11 and 12 November 2009 the applicant lodged offence reports with the Lõuna District Prosecutor’s Office. Referring to the incidents of 22 and 23 October 2009, he complained of physical violence and unlawful treatment by prison officers.
71. The District Prosecutor’s Office requested the material relating to the incidents of 22 and 23 October 2009 from the prison.
72. On 23 November 2009 the prosecutor’s office refused to initiate criminal proceedings. The prosecutor relied on the material relating to the disciplinary proceedings against the applicant, comprising statements by the prison officers and the applicant, report no. 57 on the use of the means of restraint, the order concerning the further application of means of restraint, and the medical report. The prosecutor was of the opinion that the applicant had breached the prison rules both on 22 and 23 October 2009 and that the use of means of restraint and physical force against him had been lawful. The length of the use of the restraint bed had been dependent on the applicant’s behaviour. The injuries established on 23 October 2009 could have been sustained in the course of suppressing his resistance when he had refused to comply with the lawful orders of the prison officers.
73. The applicant appealed to the State Prosecutor’s Office, arguing, inter alia, that the district prosecutor had approached the matter in a biased manner as only the prison officers’ point of view had been taken into account. The applicant had not been interviewed and he had not been afforded a lawyer.
74. On 4 December 2009 the State Prosecutor’s Office dismissed the applicant’s appeal. The State prosecutor noted that the applicant’s point of view had been expressed in his offence report and it had not been overlooked. As the materials which the prosecutor had been in possession of had not warranted the institution of criminal proceedings, no procedural steps such as interviewing the persons involved had been taken.
75. On 9 December 2009 the applicant lodged a complaint with the Tartu Court of Appeal against the decision of the State Prosecutor’s Office. He also requested legal aid, as under the Code of Criminal Procedure (Kriminaalmenetluse seadustik) such a complaint had to be drawn up by an advocate but the applicant did not have the means to pay for a lawyer.
76. On 29 December 2009 the Tartu Court of Appeal dismissed the legal aid request. It considered that the prospects of success of the complaint were slight in the circumstances. It noted that the applicant himself had behaved in a wrongful manner which had escalated into aggression against prison officers, and there was no evidence of unlawful treatment of the applicant or physical ill-treatment; the use of force by the prison officers had been within the lawful limits.
77. On 10 February 2010 the Supreme Court dismissed the applicant’s request for legal aid, finding that his appeal had no prospects of success.
78. The applicant lodged several complaints with the Tartu Administrative Court in relation to the events of 22 and 23 October 2009. In particular, he complained about his placement in the restraint bed on 22 October 2009 (case no. 3-09-2774), against the order of 22 October 2009 concerning the prospective use of handcuffs (case no. 3-09-2951), and about the actual use of handcuffs on 23 October 2009 (case no. 3-09-3063). The Administrative Court exempted him from the payment of the State fee on these complaints. On 5 February 2010 the applicant informed the Administrative Court that he wished to withdraw the cases. By decisions of 9 and 10 February 2010 the Administrative Court accepted that request and terminated the proceedings in each case.
79. The State Fees Act (Riigilõivuseadus), as in force in 2007, provided that the State fee (riigilõiv) for a complaint lodged with an administrative court was EEK 80 (EUR 5) (section 56(10)). If the complaint concerned compensation for damage, the State fee was 3% of the sum claimed but not less than EEK 80 and not more than the amount payable on the filing of a civil action in civil court proceedings in respect of a similar amount (section 56(11)). If the complainant claimed compensation for non-pecuniary damage and left the amount of compensation to be determined by the court, a State fee of EEK 1,000 (EUR 64) was payable (section 56(12)). The State fee to be paid on an appeal against a judgment of an administrative court was the same as upon the initial filing of the complaint with that court (section 56(18)).
80. The State Legal Aid Act (Riigi õigusabi seadus) provides that State legal aid is not granted if the applicant’s attempt to protect his or her rights is clearly unlikely to succeed given the circumstances (section 7(1)(5)). Nor is State legal aid granted if it is applied for in order to lodge a claim for compensation for non-pecuniary damage (mittevaraline kahju) and there is no predominant public interest involved (section 7(1)(6)).
81. Pursuant to Article 208 of the Code of Criminal Procedure (Kriminaalmenetluse seadustik), the victim of an alleged offence can lodge a complaint with a court of appeal against a refusal by the Public Prosecutor’s Office to initiate criminal proceedings. Such a complaint must be lodged through an advocate.
82. Article 121 of the Penal Code (Karistusseadustik) stipulates that causing damage to the health of another person, or battery or other physical abuse which causes pain, is punishable by a fine or up to three years’ imprisonment. Article 324 of the Code provides for criminal responsibility for the unlawful treatment of prisoners or persons in detention or custody. According to this provision, an officer of a custodial institution who, taking advantage of his or her official position, degrades the dignity of a prisoner or a person in detention or custody, or discriminates against such a person or unlawfully restricts his or her rights, is punished by a fine or up to one year’s imprisonment.
83. The State Liability Act (Riigivastutuse seadus) sets out the rules concerning compensation for pecuniary damage (varaline kahju) in section 8. In respect of compensation for non-pecuniary damage (mittevaraline kahju), section 9 stipulates as follows:
“(1) A natural person may claim financial compensation (rahaline hüvitamine) for non-pecuniary damage resulting from wrongful (süüline) degradation of dignity, damage to health, deprivation of liberty, violation of the inviolability of the [person’s] home or private life or of the confidentiality of [their] correspondence, or defamation of the person’s honour or good name.
(2) Non-pecuniary damage shall be compensated for in proportion to the gravity of the offence (õiguserikkumine), taking into account the form and gravity of the wrongful act (süü vorm ja raskus).
...”
84. Section 1-1 of the Imprisonment Act (Vangistusseadus), as in force until 23 July 2009, provided that prisoners could lodge complaints with an administrative court against administrative acts issued or measures taken by a prison, on the basis of and pursuant to the procedure provided in the Code of Administrative Court Procedure, and on condition that the prisoner had previously lodged a complaint with the Ministry of Justice and the Ministry of Justice had returned the complaint, rejected it or failed to take a decision within the applicable time-limit (subsection 5).
85. Subsection 8 provided that a prisoner had the right of recourse to an administrative court for compensation for damage caused by a prison on condition that the prisoner had previously submitted to the prison an application for compensation for damage in accordance with the procedure provided for in the State Liability Act, and the prison had returned the application or refused to satisfy it or to review it within the applicable time-limit.
86. Section 1-1 of the Imprisonment Act, as in force from 24 July 2009, provides for the Ministry of Justice to review complaints concerning administrative acts issued or measures taken by a prison director. The prison director reviews complaints against administrative acts issued or measures taken by other prison officers (subsection 4-1). Subsection 5, as in force from 24 July 2009, contains amendments in the light of the new subsection 4-1, according to which complaints against a prison director are reviewed by the Ministry of Justice, and complaints against other prison officers by a prison director. The amendments to subsection 8 are not relevant for the present case.
87. A new subsection 8-1 entered into force on 24 July 2009, according to which, where a complaint or application is returned because its author has failed to rectify deficiencies within the applicable time-limit, he or she has no right to lodge another complaint or application with an administrative court in respect of the same matter.
88. Section 14(4) provides that a prisoner must not be kept in a reception section for more than three months. Pursuant to section 25(3), no overnight visits may be received by a prisoner in the reception section.
89. Section 68 provides that a prison officer of the same sex may search a prisoner in order to discover prohibited items or substances. The search procedure is established by a regulation of the Minister of Justice.
90. Sections 69, 70, 70-1 and 71 provide as follows:
“(1) Additional security measures shall be imposed with regard to a prisoner who regularly violates the requirements of this Act or the internal rules of the prison, damages his or her health or is likely to attempt suicide or escape, or to a prisoner who poses a threat to other persons or to security in the prison. Additional security measures may also be imposed for the prevention of serious offences.
(2) It is permitted to apply the following as additional security measures:
1) restriction on a prisoner’s freedom of movement and communication inside the prison;
2) prohibition on a prisoner wearing personal clothing or using personal effects;
3) prohibition on a prisoner taking part in sports;
4) commission of a prisoner to a locked isolation cell;
5) use of means of restraint.
(3) The application of additional security measures shall be terminated if the circumstances specified in subsection (1) of this section cease to exist.
(4) Additional security measures shall be imposed by the prison service. In emergencies, additional security measures shall be imposed by the highest prison officer present at the time.”
“(1) It is permitted to use physical restraint, handcuffs, ankle cuffs or a restraint jacket as the means of restraint provided for in section 69(2)(5) of this Act. Means of restraint may also be used when a prisoner is being escorted. Ankle cuffs may be used as a means of restraint only while escorting a prisoner or placing a prisoner inside the prison.
(2) Means of restraint shall not be applied for longer than twelve hours.”
“(1) The following constitute special equipment for use in prisons:
1) protective helmet;
2) body armour and other types of bulletproof vests;
3) ballistic shields and other impact-resistant shields;
4) clothing used for special operations and face shields against caustic substances;
5) lighting and audio equipment;
6) colouring and marking devices for special purposes;
7) tear gas and smoke grenades (and equipment);
8) blasting devices for special purposes (not used against persons);
9) means for stopping vehicles;
10) armoured vehicles and other vehicles for special purposes;
11) service dogs.
(2) The following are service weapons used in prisons:
1) truncheon and telescopic baton;
2) gas weapons;
3) pneumatic weapons;
4) firearms.”
“(1) Prison officers are permitted to use special equipment and service weapons only as a measure of last resort, if all the remaining measures to prevent a prisoner’s escape have been exhausted, to apprehend an escaped prisoner, to neutralise an armed or otherwise dangerous prisoner or to prevent attack or the intrusion of other people in the prison. In using special equipment and service weapons, one must avoid causing harm to the health of persons in so far as possible in a particular case.
(2) A prison officer has the right to use self-defence equipment and physical force in the performance of service duties or for ensuring his or her own safety.
...”
91. Regulation no. 23 of the Minister of Justice on the Procedure for Supervisory Control over the Execution of Imprisonment and Provisional Custody (Vangistuse ja eelvangistuse täideviimise üle järelevalve korraldamine), adopted on 1 April 2003, provides as follows:
“(1) A person may be searched fully or partly.
(2) A person’s full search shall be conducted in a place where his privacy is secured.
(3) A person shall be searched by persons of the same sex.
...”
“(1) The search of an imprisoned person is obligatory in the following instances:
1) upon entering and leaving the prison;
2) before and after a visit;
3) if the imprisoned person is on premises which are being searched;
4) before escorting a prisoner.
(2) An officer of the prison service also has the right to search an imprisoned person in cases not listed in subsection 1.”
92. Regulation no. 273 of the Government on the Enactment of the Minimum Salary (Palga alammäära kehtestamine), adopted on 21 December 2006, provided that as from 1 January 2007 the minimum monthly salary was EEK 3,600 (EUR 230).
93. The Administrative Law Chamber of the Supreme Court held in its judgment of 6 September 2007 (case no. 3-3-1-40-07):
“11. ... The first sentence of Article 15 § 1 of the Constitution guarantees everyone whose rights and freedoms are violated a right of recourse to the courts. This does not mean that a person who considers that his or her rights have been violated must have an unrestricted right of recourse to the courts. This fundamental right can be reasonably restricted if the restriction has a legitimate aim and the principle of proportionality is taken into consideration. Certain limitations on the right of recourse to the courts are necessary for legal certainty and in order to avoid overloading of the court system.
In assessing whether the exemption from the State fee of an indigent person is justified, a court must inevitably make a preliminary assessment of the necessity and importance of the protection of the complainant’s rights. If the obligation to pay the State fee is to help to avoid recourse to the administrative courts with manifestly ill-founded complaints, then the possibility of granting exemption from the payment of the State fee serves to ensure that a person’s important rights do not remain unprotected because of his or her indigence. The purpose of the administrative court procedure is not to ensure the largest possible number of complaints to the administrative courts but rather to secure a seamless right to recourse for the protection of a person’s important rights.”
94. In its judgment of 14 March 2012 (case no. 3-3-1-80-11), the Administrative Law Chamber of the Supreme Court dealt with a complaint from a prisoner of Tartu Prison about his confinement to a restraint bed for four hours. It found that the scope of regulation of the use of that means of restraint was insufficient and therefore its subsequent judicial review was seriously impeded. The report drawn up in respect of the use of the measure had not contained sufficient reasoning. Therefore, it was not possible to assess the considerations of the prison administration in finding that the prisoner had continued to behave aggressively for four hours, how the aggressiveness had been established or what kind of threat he had posed to the security of the prison or to himself. The Supreme Court found that the complainant’s placement in the restraint bed for four hours had been unlawful.
95. The relevant extracts from the Appendix to the Recommendation, adopted at the 952nd meeting of the Committee of Ministers, read as follows:
“68.1 The use of chains and irons shall be prohibited.
68.2 Handcuffs, restraint jackets and other body restraints shall not be used except:
a. if necessary, as a precaution against escape during a transfer, provided that they shall be removed when the prisoner appears before a judicial or administrative authority unless that authority decides otherwise; or
b. by order of the director, if other methods of control fail, in order to protect a prisoner from self-injury, injury to others or to prevent serious damage to property, provided that in such instances the director shall immediately inform the medical practitioner and report to the higher prison authority.
68.3 Instruments of restraint shall not be applied for any longer time than is strictly necessary.
68.4 The manner of use of instruments of restraint shall be specified in national law.”
96. The relevant part of the 2nd General Report of the CPT (CPT/Inf (92) 3) reads as follows:
“53. Prison staff will on occasion have to use force to control violent prisoners and, exceptionally, may even need to resort to instruments of physical restraint. These are clearly high risk situations insofar as the possible ill-treatment of prisoners is concerned, and as such call for specific safeguards.
A prisoner against whom any means of force have been used should have the right to be immediately examined and, if necessary, treated by a medical doctor. This examination should be conducted out of the hearing and preferably out of the sight of non-medical staff, and the results of the examination (including any relevant statements by the prisoner and the doctor’s conclusions) should be formally recorded and made available to the prisoner. In those rare cases when resort to instruments of physical restraint is required, the prisoner concerned should be kept under constant and adequate supervision. Further, instruments of restraint should be removed at the earliest possible opportunity; they should never be applied, or their application prolonged, as a punishment. Finally, a record should be kept of every instance of the use of force against prisoners.”
97. In May 2007 the CPT carried out a visit to Estonia. On 19 April 2011 it published a report of its visit (CPT/Inf (2011) 15), which contains the following findings relating to Tartu Prison:
“90. At the end of 2006, cell No. 1001 had been equipped with a special restraint bed (covered with a mattress) for five-point fixation (wrists, ankles, abdomen) of agitated prisoners with cloth straps. Due to the lack of a special register, the delegation was not in the position to establish the precise frequency and duration of the resort to this type of physical restraint.
In the CPT’s view, every resort to the physical restraint of a prisoner should be recorded in a special register (as well as in the individual file of the prisoner concerned). The information recorded should include the date and time of the beginning and end of the measure, the reasons for resorting to the measure, the name of the doctor who ordered or approved it and an account of any injuries sustained by inmates or staff.
The CPT recommends that a special register on resort to means of physical restraint be introduced at Tartu Prison and, if appropriate, in other prisons in Estonia, in the light of the preceding remarks.
91. Under the Imprisonment Act, the decision to apply means of restraint must be taken by the prison governor (except in emergencies), and such means may only be applied for a maximum period of twelve hours. The Act does not expressly refer to beds equipped with fixation points, nor does it specify the procedure for their use. The delegation was unable to obtain precise and comprehensive information on the subject during the visit.
The CPT would like to receive detailed information on the procedure in force regarding the use of the bed equipped with fixation points in cell No. 1001 in Tartu Prison and, in particular, on the circumstances in which this bed is used, the arrangements for the involvement of a doctor and the manner in which the monitoring of immobilised inmates is organised. The Committee would also like to receive information on the training of staff required to use this equipment.”
VIOLATED_ARTICLES: 3
6
VIOLATED_PARAGRAPHS: 6-1
NON_VIOLATED_ARTICLES: 3
6
NON_VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-4717
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 1999
DOCNAME: VERNON v. THE UNITED KINGDOM
IMPORTANCE: 1
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant is a British national, born in 1942, and resides in Gloucestershire. He is represented by Messrs Osbourne Clarke, Solicitors, from Bristol.
In 1982, the applicant witnessed the tragic death by drowning of his two young children when the car they were in, being driven by their nanny, went into a river. The applicant had previously experienced some psychological instability in his life, but, following the accident, he began to manifest symptoms of Post Traumatic Stress Disorder. From being a successful businessman, he became unemployable, and the relationship with his wife broke down. In October 1993, they were divorced.
In August 1985, a writ was issued in an action for damages for personal injury against the driver of the vehicle. The action was set down for trial on the application of the Defence in June of 1996. The initial estimate for the length of the trial was six weeks. The trial began on 12 January 1994. After six weeks, the applicant as plaintiff was still giving evidence. He was in the witness box for thirty days overall. Due to his mental condition, the process of questions and answers was very lengthy, and the estimate for the trial length was revised. There were additionally conflicts with the judge's timetable which required lengthy breaks in the trial, and a move in the venue from Cardiff to London.
An application was made by the applicant's representatives in February 1994 to impose time-limits in respect of cross-examination of the applicant. This was refused on the basis that the defence must have every opportunity to present their case, subject to the normal controls. In April 1994, the applicant’s expert witnesses, Dr L and Mr M, gave evidence, essentially stating that the prognosis was not very good, and that the applicant was unlikely ever to be able to work again. On 13 June 1994, Mr Justice Sedley imposed time-limits for the hearing of the remaining witnesses and to ensure the trial finished in time. The evidence in the trial, which lasted 70 days, concluded on 14 July 1994. Counsel made their final submissions on 24 and 25 October 1994. The judge, Mr Justice Sedley, did not give his judgment until 30 January 1995, which judgment ran to 262 pages, giving judgment for the applicant in the sum of over 1,300,000. Following further submissions of the parties on aspects of social security benefits, interest, costs, stay of execution, time for appeal and the form of order, Mr Justice Sedley gave a further judgment on 10 May 1995.
In August 1994, the applicant had applied for a residence order under the Children Act 1989 in respect of his remaining children. The expert doctors who had given evidence in the personal injury trial were instructed by the applicant to give their views of the state of the applicant's mental health for the purpose of these proceedings. They produced draft reports which gave a more positive prognosis. Mr M’s report went so far as to suggest that the applicant was no longer suffering mental health problems. It was sent to the solicitors of the applicant’s wife by mistake. The applicant’s counsel, on his instructions, applied to the judge in the family matter for the report to be returned on the basis that it had been disclosed without the applicant’s authority and that the applicant did not wish to rely on it. The judge ruled that the report was to be admitted in evidence. The applicant states that as a result he was obliged to call Mr M as a witness. Mr M produced a revised version of his draft report. Dr L in his oral evidence stated that he would have to alter the prognosis given previously as the applicant had remained free of depression and his medication had been reduced, such that it was now appropriate to see if it could be further reduced or even stopped. He stated that he had not foreseen this improvement earlier though it was premature to be optimistic. In the applicant’s evidence in the family proceedings, he said in a statement of 30 September 1994 that his psychiatric situation had improved dramatically and, in his oral evidence, he did not resile from his descriptions of his improved mental health. On 6 January 1995, the Judge in the family matter, Judge McNaught, rejected the applicant’s claim for a residence order, though subsequently, the applicant’s ex-wife agreed that he should have custody of the youngest child.
Concerns had arisen as to the relevance of the medical reports to the imminent decision of Mr Justice Sedley in the personal injury action. The applicant sought the opinion of his Queen's Counsel as to whether the documents needed to be disclosed. He was advised on 16 November 1994 that as the reports were subject to professional privilege they need not be.
The defendants in the personal injury action appealed against the decision of Mr Justice Sedley, and the appeal was heard over 12 days in January and February 1996. A draft judgment of the Court of Appeal was produced on 29 March 1996. It reduced the award of damages to £643,425.59 with interest and costs. Part of the interest awarded by Mr Justice Sedley was deducted (one year) on the basis of the applicant’s inordinate delay in the case. When the draft judgments were handed down, however, issues were raised by the parties as to the correct calculation of past and future loss of earnings. These matters were adjourned in the hope that the parties could agree, failing agreement the matter was to be re-argued on those points.
On 17 April 1996, leading counsel for the defendants received anonymously through the post copies of the reports prepared by the applicant’s doctors in the Children Act proceedings. On 30 April 1996, the defendants applied to the Court of Appeal for the appeal to be listed for rehearing, for discovery and inspection of the medical reports and evidence given in the family proceedings. After initially resisting the application for disclosure, on 19 September 1996, the applicant waived any privilege covering the documents in the light of the decision of the House of Lords of the House of Lords, In re L (A Minor)(Police investigation: privilege) judgment of 21 March 1996 [1997] A.C. 16, and in the hope of shortening the proceedings. The reports and transcripts of evidence were placed before the Court of Appeal, which sat on 22 and 23 October and 5 to 8 November 1996. The Court of Appeal agreed to the defendant’s application for further evidence to be heard and for Dr L to be heard as a witness. The applicant called Mr M as a witness.
The applicant also applied to be allowed to give evidence himself as to his current mental condition, and to call another witness as to the same matter. He asked to be able to produce further evidence from an employment expert regarding loss of earnings, based on the Court of Appeal's findings as to his mental state. The Court of Appeal refused both these applications, giving the following explanation at page 50 of its judgment:
“So far as the Plaintiff is concerned we know what he was saying about his health in October 1994; we also had Dr <L.>'s clinical notes recording the <applicant’s> condition at fairly regular intervals since then. The Judge found the <applicant> to be an unsatisfactory and unreliable witness who was compulsively manipulative. There is also abundant evidence from his pre-accident job applications that he was untruthful when it suited his convenience. If <the applicant> had given further evidence it would only have invited further lengthy cross-examinations to show this Court what the Judge had already concluded. We did not think further evidence from him would assist the Court.
As to further evidence from an employment expert, no doubt to be countered by such a person called on behalf of the Defendant and which would in any event have occasioned further delay and expense in this far too protracted litigation, again we did not think this would assist the Court. Such evidence would be unlikely to be sufficiently precise and would be likely to be discursive and speculative depending on the findings of this Court. In my judgment the Court must adopt a broad-brush approach to the question doing the best we can with the material at our disposal.”
Judgment was given on 13 December 1996, and the decision of the Court, by a majority, was to reduce the award of damages made in favour of the applicant to the sum of just over 600,000. This involved a further reduction in Mr Justice Sedley’s award of £60,000 from the sum of future loss of earnings, the sum of general damages was reduced by a further £20,000, and sums for future domestic help and future gardener/handyman reduced from £10,233.60 and £3,952 respectively to nothing. This decision was made on the basis of the finding by the Court of Appeal that the applicant had made a substantial recovery since 1993. While it found that his recovery was not complete and that he would require low level medication and supportive therapy for the foreseeable future, it considered that this did not prevent him functioning normally. As regards the issues arising from the disclosure of materials from the family proceedings, one of the appeal court judges observed that “it is simply unconscionable for a litigant to run contradictory cases in simultaneous proceedings in the hope of gaining advantage in each” and another appeal judge noted that, if it was correct that the evidence falsified the assumptions previously made by the trial judge and themselves in the civil proceedings, it would be inequitable and an affront to common sense and justice not to admit it.
The award was however less than the £750,000 paid into court by the defendants, and thus the applicant became liable to pay a substantial amount of costs.
The applicant petitioned for leave to appeal to the House of Lords, which petition was refused on 10 March 1997.


ITEMID: 001-78358
LANGUAGEISOCODE: ENG
RESPONDENT: SVN
BRANCH: ADMISSIBILITY
DATE: 2006
DOCNAME: KODERMAC v. SLOVENIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson;John Hedigan
TEXT: The applicant, Mrs Friderika Kodermac, is a Slovenian national who was born in 1923 and lives in Solkan.
The Slovenian Government (“the Government”) were represented by their Agent, Mr L. Bembič, State Attorney-General.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 30 April 1992 the applicant and her four relatives lodged a request for restitution of the expropriated building and a compensation for the nationalised plot of land. Apparently, she made a similar request on 24 May 1993.
On 1 September 1992 the Nova Gorica Municipality (Občina Nova Gorica, “the Municipality”) rejected the applicant’s claim for restitution because the previous owner, the applicant’s brother-in-law, was not a citizen of Yugoslavia at the time of the expropriation.
The applicant appealed to the Ministry of the Environment and Spatial Planning (Ministrstvo za okolje in prostor, “the Ministry”).
On 26 November 1992 the Ministry dismissed the appeal.
At an undetermined time, the applicant instituted administrative proceedings in the Supreme Court (Vrhovno sodišče) against the Ministry contesting its decision of 26 November 1992.
On 10 March 1994 the court upheld the applicant’s claim and annulled the Ministry’s decision on procedural grounds. The Ministry subsequently re-examined the case.
On 21 April 1994 the Ministry annulled the Municipality’s decision and remitted the case for fresh consideration.
On 28 June 1994 the Convention took effect with respect to Slovenia.
On 7 September 1994 the Municipality again rejected the applicant’s claim because the applicant’s brother-in-law, was not a citizen of Yugoslavia and because her husband was not the owner of the property sought. The decision was served on the applicant on 15 September 1994.
On 26 September 1994 the applicant appealed to the Ministry.
On 12 June 1995 the Ministry dismissed the appeal. The parties to the proceedings did not contest the Ministry’s decision.
On 26 April 1996, following the judgment of the Nova Gorica Local Court in another set of proceedings (see below paragraph13), the applicant lodged a request for reopening of the proceedings concerning the restitution of building.
On 3 October 1997 the Nova Gorica Administrative Unit (Upravna Enota v Novi Gorici, “the Unit”) rejected the applicant’s request to reopen the denationalisation proceedings to declare her deceased husband a beneficiary of restitution.
On 29 October 1997 the applicant appealed to the Ministry.
On 4 March 1998 the Ministry allowed the appeal, annulled the Unit’s decision, and allowed the reopening of the proceedings.
On 30 November 2000 the Unit granted the applicant’s claim and awarded the applicant compensation for expropriated property. It rejected her claim for restitution in natura.
On 22 December 2000 the applicant appealed to the Ministry.
On 19 May 2001 the Ministry dismissed her appeal.
On 30 August 2001 the applicant instituted an administrative dispute in the Administrative Court (Upravno sodišče), contesting the decision of 19 May 2001.
On 12 April 2002 the court dismissed the applicant’s claim.
On 10 May 2002 the applicant appealed to the Supreme Court.
On 16 April 2003 the court dismissed the appeal.
The judgment was served on the applicant on 14 May 2003.
In the meanwhile, on 13 January 1993 the applicant and her family instituted civil proceedings with the Nova Gorica Local Court (Okrajno sodišče v Novi Gorici) against the applicant’s relatives who were her co-plaintiffs in the proceedings before the Municipality. The applicant claimed that her deceased husband and not her brother-in-law had been the owner of the expropriated building.
On 5 March 1996 the court issued a judgment finding that the applicant’s husband was the owner of the nationalised building. The judgment became final on 6 April 1996.
On 6 December 2004 the Nova Gorica Local Court delivered a judgment in another set of proceedings to which the applicant was a party. The court decided that the applicant’s husband was the owner of the nationalised plot of land.
On 25 May 2005, following the judgment of 6 December 2004, the applicant sought restitution of this plot of land.
On 1 August 2005 the Unit upheld her claim in part and the Slovene Compensation Corporation (Slovenska odškodninska družba) was ordered to pay compensation to the applicant.
On 11 August 2005 the Slovene Compensation Corporation appealed to the Ministry.
On 11 April 2006 the Ministry allowed the appeal, decreased the amount of compensation awarded to the applicant and remitted a part of the case to the Unit for fresh examination.
The proceedings are still pending.


ITEMID: 001-82852
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: ADMISSIBILITY
DATE: 2007
DOCNAME: SOLOVYEV v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Christos Rozakis
TEXT: The applicant, Mr Vladislav Borisovich Solovyev, is a Russian national who was born in 1975 and lives in Kostroma. He was represented before the Court by Mr A. Belyakov, a lawyer practising in Kostroma. The Russian Government (“the Government”) were represented by Mr P. Laptev, Representative of the Russian Federation at the European Court of Human Rights.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 30 August 2000 the applicant found a burglar in his flat and caused him fatal injuries. On the same day he was arrested and remanded in custody, and on 1 September 2000 he was charged with manslaughter.
On 11 September 2000 the applicant requested that Mr Belyakov, a privately retained lawyer, be admitted as a defence counsel.
On 2 October 2000 the applicant challenged his detention before the Sverdlovsk District Court of Kostroma. He also requested that Mr Belyakov be admitted to the proceedings as defence counsel. On an unidentified date Mr Belyakov was refused admission as defence counsel, apparently on the grounds that he had failed to submit proof that he was a member of a bar association.
On 2 November 2000 the court examined the applicant’s request for release, in proceedings at which the applicant was present in person and was assisted by Ms S., a legal aid counsel. The court upheld the applicant’s pre-trial detention, having found that it was justified in view of the seriousness of the charge and the applicant’s character. This decision could be appealed to the Kostroma Regional Court within seven days, but no cassation appeal was lodged.
On 16 January 2001 the Sverdlovsk District Court of Kostroma examined the charges against the applicant. The applicant was represented in the proceedings by Mr Belyakov. He was found guilty of causing grievous bodily harm and sentenced to two years’ imprisonment.
On 26 January 2001 Mr Belyakov requested on the applicant’s behalf an extension of the ten-day time-limit for lodging an appeal against the judgment of 16 January 2001. On the same day the request was refused. No appeal was lodged against the refusal.
Between 16 January 2001 and 29 August 2002 the applicant was serving his sentence in Correctional Colony OT-15/1, a penitentiary facility in Kostroma. The parties submitted the following accounts of conditions in OT-15/1, including health care and the prevention of tuberculosis.
The unit where the applicant was housed was shared by 100 inmates. The diet was poor because the vegetable supply was limited to potatoes and beetroot. No medicines were available in the facility. During the applicant’s imprisonment in OT15/1 there was an outbreak of tuberculosis, and the applicant had fears of contracting tuberculosis himself. He claimed to have developed chronic bronchitis, but he submitted no medical evidence of it.
On the applicant’s arrival in OT-15/1 he underwent a medical examination including an x-ray and clinical tests. He was found to be in good health.
He was placed in unit no. 14, a dormitory which measured 365.1 sq. m, including a sleeping area of 238 sq. m, a storage room, canteen, common room, washroom and toilet. At the material time the dormitory housed 110 inmates, which afforded them 2.17 sq. m of personal space in the sleeping area, or 3.32 sq. m in the whole unit including common areas. The catering in OT-15/1 conformed to the standard requirements. Inmates were provided with three meals a day.
Persons infected with tuberculosis were placed separately from the rest and treated in a specialised section of the local hospital. At the material period no outbreak of tuberculosis was registered in OT15/1. Sanitary and epidemiological checks were conducted in the facility on a monthly basis. The reports for 2001-2002 indicated that there had been no infectious diseases registered in OT15/1 in that period. There have always been sufficient supplies of medicines in the medical unit of OT-15/1.
During his imprisonment the applicant consulted a doctor on a number of occasions, which were recorded as follows. On 27 March 2001 he had a tooth removed by a dentist. On 26 July 2001 he was diagnosed with acute bronchitis. He was given leave from work and underwent medical treatment. The applicant did not turn up for the second appointment with the doctor. On 31 July 2001 he was diagnosed with furunculosis (boils), for which he received treatment. On 10 September 2001 and on 23 November 2001 he was diagnosed with a common cold; on both occasions he was given leave from work and underwent medical treatment.
The applicant underwent regular mandatory Xray examinations which took place on 25 January 2001, on 10 September 2001 and on 19 April 2002 and did not reveal any disease.
The Government submits that the applicant did not lodge any complaints concerning the conditions in OT15/1 during his term of imprisonment or after release.
Article 99 § 1 of the Penitentiary Code of 8 January 1997 provides for a minimum standard of two square metres of personal space for male convicts in correctional colonies.


ITEMID: 001-57948
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: CHAMBER
DATE: 1995
DOCNAME: CASE OF UMLAUFT v. AUSTRIA
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6-1 (access);Not necessary to examine Art. 6-1 (publicly);Pecuniary damage - finding of violation sufficient;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings
JUDGES: John Freeland
TEXT: 6. On 16 October 1987 Mr Helmut Umlauft was stopped by the police while driving his car. He refused to submit to a breath test. In a "sentence order" (Straferkenntnis) of the same day the Bregenz district authority (Bezirkshauptmannschaft) ordered him to pay a fine of 10,000 Austrian schillings (ATS) with 480 hours' imprisonment in default, for an offence under section 99(1)(b) taken together with section 5(2) of the Road Traffic Act (Straßenverkehrsordnung - see paragraphs 11 and 12 below).
7. The applicant appealed against that decision to the Vorarlberg regional government (Amt der Landesregierung), which dismissed the appeal on 19 January 1988.
8. On 8 March 1988 Mr Umlauft applied to the Constitutional Court (Verfassungsgerichtshof). As his main submission, he complained of the unlawfulness of the decree of the Federal Ministry of Trade and Reconstruction (Verordnung des Bundesministeriums für Handel und Wiederaufbau) which provided for the use of a certain type of breathalyser, because its calibre did not in fact conform to the provisions of the Road Traffic Act. In the alternative, he alleged that the proceedings in question had not complied with Article 6 para. 1 (art. 6-1) of the Convention.
On 14 October 1988, at the conclusion of a consideration of the case in private, the Constitutional Court declined to accept the appeal for adjudication (Article 144 para. 2 of the Federal Constitution (Bundes-Verfassungsgesetz) - see paragraph 15 below), since, in view of its case-law on Article 6 (art. 6) of the Convention, it did not have sufficient prospects of success; moreover, the case did not lie outside the jurisdiction of the Administrative Court (Verwaltungsgerichtshof).
9. At Mr Umlauft's request, it referred the application to the Administrative Court on 13 December 1988.
10. Reiterating in substance the arguments he had set out before the Constitutional Court, the applicant said that his refusal to blow into the breathalyser could not amount to a breach of section 5 of the Road Traffic Act, since the apparatus did not comply with the applicable regulations and statutory provisions. He also asked the Administrative Court to refer the question of the lawfulness of the decree to the Constitutional Court again for review (Normprüfung), together with the question whether the proceedings had complied with Article 6 (art. 6) of the Convention. He did not ask it to hold a hearing.
On 20 January 1989 the Administrative Court dismissed the appeal on the following grounds:
"In the instant case, however, having regard to the refusal to submit to a breath test, it is of little relevance to know what would have been the significance, as regards the seriousness of the intoxication, of the fact that the colouring had reached or gone beyond the mark on the tube.
Having regard to the unlawfulness (Unrechtsgehalt) of refusing to submit to a breath test, which is the offence the applicant was charged with, the fact that the tube which was to be used to analyse his exhaled breath did not comply with the aforementioned decree is not, in administrative criminal law, of such importance as to require the impugned decision to be set aside.
...
Since it is apparent from the very content of the application that the contravention of the law alleged by the applicant has not occurred, the application falls to be dismissed at a private sitting without further formality under section 35(1) of the Administrative Court Act."
The court refused to refer the case to the Constitutional Court, holding that the latter had already ruled on the other two points raised by the applicant.
11. Under section 5 of the Road Traffic Act 1960 it is an offence for any person to drive a vehicle if the proportion of alcohol in his blood or breath is equal to or higher than 0.8 grams per litre or 0.4 milligrams per litre respectively. The same section also lays down the conditions for the use of breathalysers and blood tests.
12. In its 1986 version, section 99(1) of the Act provided:
"It shall be an administrative offence (Verwaltungsübertretung), punishable with a fine of not less than 8,000 and not more than 50,000 schillings or, in default of payment, with one to six weeks' imprisonment, for any person
...
(b) to refuse to submit to a breath test where the conditions laid down in section 5 are satisfied;
..."
13. In 1958, at the time when the Austrian Government ratified the Convention (see paragraph 24 below), section 7 of the Traffic Police Act 1947 (Straßenpolizeigesetz) provided:
"Every driver shall be under a duty to pay reasonable heed to other road users and to display the care and diligence necessary to ensure the maintenance of order, safety and a proper flow of traffic."
14. Article 90 para. 1 of the Federal Constitution (Bundes-Verfassungsgesetz) provides:
"Hearings by trial courts in civil and criminal cases shall be oral and public. Exceptions may be prescribed by law."
15. By Article 144 para. 1 of the Federal Constitution, the Constitutional Court, when an application (Beschwerde) is made to it, has to determine whether an administrative decision (Bescheid) has infringed a right guaranteed by the Constitution or has applied regulations (Verordnung) contrary to the law, a law contrary to the Constitution or an international treaty incompatible with Austrian law.
Article 144 para. 2 provides:
"Up to the time of the hearing the Constitutional Court may by means of a decision (Beschluß) decline to accept a case for adjudication if it does not have sufficient prospects of success or if it cannot be expected that the judgment will clarify an issue of constitutional law. The court may not decline to accept for adjudication a case excluded from the jurisdiction of the Administrative Court by Article 133."
16. By Article 130 para. 1 of the Federal Constitution, the Administrative Court has jurisdiction to hear, inter alia, applications alleging that an administrative decision is unlawful.
17. Section 35(1) of the Administrative Court Act (Verwaltungsgerichtshofsgesetz) provides:
"Applications from whose content it is apparent that the contravention of the law alleged by the applicant has not occurred shall be dismissed, at a private sitting, without further formality."
18. Section 39(1) provides, in particular, that at the end of the preliminary proceedings (Vorverfahren) the Administrative Court must hold a hearing where the applicant makes a request to that effect.
Section 39(2) reads as follows:
"Notwithstanding a party's application under subsection (1), the Administrative Court may decide not to hold a hearing where
1. the proceedings must be stayed (section 33) or the application dismissed (section 34);
2. the impugned decision must be quashed as unlawful because the respondent authority lacked jurisdiction (section 42(2)(2));
3. the impugned decision must be quashed as unlawful on account of a breach of procedural rules (section 42(2)(3));
4. the impugned decision must be quashed because its content is unlawful according to the established case-law of the Administrative Court;
5. neither the respondent authority nor any other party before the court has filed pleadings in reply and the impugned decision is to be quashed;
6. it is apparent to the court from the pleadings of the parties to the proceedings before it and from the files relating to the earlier administrative proceedings that a hearing is not likely to clarify the case further."
Sub-paragraphs 1 to 3 of section 39(2) were in force in 1958; sub-paragraphs 4 and 5 were inserted in 1964 and sub-paragraph 6 in 1982.
19. Section 41(1) of the Administrative Court Act provides:
"In so far as the Administrative Court does not find any unlawfulness deriving from the respondent authority's lack of jurisdiction or from breaches of procedural rules (section 42(2)(2) and (3)) ..., it must examine the impugned decision on the basis of the facts found by the respondent authority and with reference to the complaints put forward ... If it considers that reasons which have not yet been notified to one of the parties might be decisive for ruling on [one of these complaints] ..., it must hear the parties on this point and adjourn the proceedings if necessary."
20. Section 42(1) of the same Act states that, save as otherwise provided, the Administrative Court must either dismiss an application as ill-founded or quash the impugned decision.
By section 42(2),
"The Administrative Court shall quash the impugned decision if it is unlawful
1. by reason of its content, [or]
2. because the respondent authority lacked jurisdiction, [or]
3. on account of a breach of procedural rules, in that
(a) the respondent authority has made findings of fact which are, in an important respect, contradicted by the case file, or
(b) the facts require further investigation on an important point, or
(c) procedural rules have been disregarded, compliance with which could have led to a different decision by the respondent authority."
21. If the Administrative Court quashes the impugned decision, "the administrative authorities [are] under a duty ... to take immediate steps, using the legal means available to them, to bring about in the specific case the legal situation which corresponds to the Administrative Court's view of the law (Rechtsanschauung)" (section 63(1)).
22. In a judgment of 14 October 1987 (G 181/86) the Constitutional Court held:
"From the fact that it has been necessary to extend the reservation in respect of Article 5 (art. 5) of the Convention to cover the procedural safeguards of Article 6 (art. 6) of the Convention, because of the connection between those two provisions (art. 5, art. 6), it follows that, conversely, the limited review (die (bloß) nachprüfende Kontrolle) carried out by the Administrative Court or the Constitutional Court is insufficient in respect of criminal penalties within the meaning of the Convention that are not covered by the reservation."
23. Pursuant to Article 129 of the Federal Constitution, administrative courts called "independent administrative tribunals" (Unabhängige Verwaltungssenate) were set up in the Länder with effect from 1 January 1991. The functions of these tribunals include determining both the factual and the legal issues arising in cases concerning administrative offences (Verwaltungsübertretungen).
24. The instrument of ratification of the Convention deposited by the Austrian Government on 3 September 1958 contains, inter alia, a reservation worded as follows:
"The provisions of Article 5 (art. 5) of the Convention shall be so applied that there shall be no interference with the measures for the deprivation of liberty prescribed in the laws on administrative procedure, BGBl [Federal Official Gazette] No. 172/1950, subject to review by the Administrative Court or the Constitutional Court as provided for in the Austrian Federal Constitution."
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-82501
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF BHANDARI v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1
JUDGES: Josep Casadevall;Nicolas Bratza
TEXT: 3. The applicant was born in 1934 and lives in the Isle of Man. He grew raspberries there and had a lucrative contract with the shop Marks & Spencers, but lost it in 1990 when the local environmental health officer let it be known to the shop that the applicant was packing raspberries in his kitchen. The applicant and his wife sued the Department of Local Government and the Environment ('DOLGE') for mis-statement and were awarded over GBP 16,000 in damages by the Manx High Court on 1 April 1993. The applicant did not consider that this was enough, and, wishing to appeal, instructed a new (Manx) advocate, a Mr Carter, then a partner in a firm of advocates called Carter Jones McDonald ('CJM').
Mr Carter advised that there was merit in an appeal, and applied for legal aid on his client's behalf in April 1993: this application was rejected on 25 May 1993. The applicant's Petition of Appeal from the first instance judgment was rejected the next day because it had been filed two days late. Mr Carter advised (via letter and at a meeting) that it would not be unduly difficult to apply for an extension of time in which to lodge the appeal, but that, in the circumstances, the best course of action was for the applicant to cut his losses and to accept an offer put forward by DOLGE. The applicant accepted this advice and, on 17 June 1993, DOLGE's offer of GBP 20,000.
4. CJM issued proceedings against the applicant for payment of their fees on 7 December 1993. An advocate instructed by the applicant to defend the claim failed to file a Defence in the prescribed period, and judgment was entered for CJM on 5 January 1994. After taxation of CJM's costs, judgment was issued on 2 March 1995 for a total of GBP 929.80. Mr Carter then applied for execution of the judgment and on 9 October 1995, the applicant's property was placed under arrest by the Coroner. The applicant appealed on 30 October 1995 and on 7 November 1995 Mr Carter wrote to the Coroner and the applicant requesting that no further steps be taken in respect of the enforcement of the execution against the applicant until specifically instructed. It appears that the execution remained suspended until the judgment of 17 November 2003 detailed below.
5. After a delay occasioned by their difficulty in obtaining legal aid, the applicant and his wife brought proceedings on 26 March 1996 against CJM in negligence, claiming that CJM's actions and omissions in April-June 1993 had deprived them of the opportunity to pursue their appeal against the first instance decision in their case against DOLGE. These proceedings are referred to hereafter as “the CJM proceedings.” In them, the applicant and his wife were represented throughout by leading Counsel from England, who had been granted a special temporary licence as a Manx advocate. The proceedings were heard by Acting Deemster Hall, succeeded by Acting Deemster Newey.
6. The summons issued on 26 March 1996 was not served on CJM until 20 March 1998, the time for service of the summons having been extended by the High Court on 27 February 1997. After the applicant filed a motion for judgment in default of defence on 22 June 1998, it appears a first defence was served out of time on 7 July 1998. A second defence was served on 16 September 1998. After the service of this second defence, a motion filed by the applicant for judgment in default was dismissed by consent on 17 September 1998. On 25 January 1999 the defendants filed a motion for a split trial between liability and quantum issues, which was dismissed on 25 October 2000. It appears that there had been no correspondence between the parties and the High Court between 27 July 1999 and 6 January 2000, leading the High Court to write to the defendants on 26 January 2000 indicating, inter alia, that Acting Deemster Hall “was very anxious to progress the matter”. After the dismissal of the defendant's motion for a split trial on 25 October 2000, it appears it was incumbent on the applicant to apply to have the case set down for trial within 28 days of this date. No application was made. On 12 January 2001, the High Court wrote to the applicant's solicitors requesting that they make the necessary application as soon as possible. On 19 January 2001, the applicant's solicitors replied, apologising for the delay in their application. On 22 January 2001, the High Court replied with instructions from the Acting Deemster that the case be set down for trial within 28 days. Both parties responded expressing concern at this proposal.
It further appears that throughout 2001 the parties each filed a number of motions, the defendants requesting a stay in the proceedings and each seeking leave to amend the statement of case, the defence and reply. Further such motions were sought throughout 2002 and January and February 2003. On 31 October 2002 and 12 February 2003, the High Court made orders setting further directions for the proceedings. Further orders were agreed by consent between the parties on 21 June 2001, 1 February 2002 and 17 July 2002, in each instance agreeing to a revised timetable and date for trial. On 20 December 2002 the applicant issued a motion for additional time to serve a further expert report to which the defendants responded with a motion that the action be struck out for non-compliance with orders of the High Court. In order to hear the motions, the High Court vacated the scheduled trial date. They were heard on 12 February 2003 with the defendant's motion being dismissed, the applicant being given leave to serve the expert report and further directions being given to the parties.
7. The CJM proceedings did not therefore come to trial before Acting Deemster Newey until 21 March 2003, at which point CJM essentially conceded liability and limited themselves to contesting quantum. By a judgment dated 17 November 2003: (1) the judgments obtained by CJM in 1995 were set aside (by consent) and these earlier proceedings dismissed; and (2) the applicant and his wife were awarded the sum of GBP 10,780.93 plus interest of GBP 8,567.13.
8. The applicant and his wife appealed against the quantum of the award; their appeal was dismissed on 25 May 2004. In a detailed 37 page judgment, the High Court of Justice of the Isle of Man (Staff Government Division) considered and dismissed each head of their challenge to the conclusions of the first instance judge. It seems that the applicant's Counsel was directed by the lead judge at the end of the hearing that his interest was now at end.
9. The applicant wished to apply to the Privy Council for special leave to appeal directly to the Council but it appears that after failing to obtain such leave as a “poor person” and failing to obtain legal aid from the Manx authorities, he did not do so.
10. Rule 6 of Order 2 of the Rules of the High Court of Justice of the Isle of Man provides that for the purpose of service, a summons is valid in the first instance for twelve months beginning with the date of its issue by the Chief Registrar. Where a summons has not been served on a defendant, the Court may by order extend the validity of the summons for a period, not exceeding twelve months at any one time.
Rule 1 of Order 22 provides that the Court may, at any stage of the proceedings, allow either party to alter or amend his pleadings, in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties.
Rule 7 of Order 47 provides that a Court shall have power to enlarge or abridge the time appointed by the Rules, or fixed by any order enlarging time, for doing any act or taking any proceeding, upon such terms (if any) as the justice of the case may require. Any such enlargement may be ordered although the application for the same is not made until after the expiration of the time appointed or allowed.
Rule 8 of the same Order provides that the time for delivering, amending, or filing any pleading, answer, or other document may be enlarged by consent in writing, without application to the Court.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1