ITEMID: 001-60457
LANGUAGEISOCODE: ENG
RESPONDENT: IRL
BRANCH: CHAMBER
DATE: 2002
DOCNAME: CASE OF D.G. v. IRELAND
IMPORTANCE: 1
CONCLUSION: Violation of Art. 5-1;Violation of Art. 5-5;No violation of Art. 3;No separate issue under Art. 8 in respect of lawfulness of detention;No violation of Art. 8 in respect of other complaints;No separate issue under Art. 14+5-1 in respect of situation vis-à-vis other minors;No violation of Art. 14+5-1 in respect of other complaints;Non-pecuniary damage - financial award
JUDGES: Georg Ress
TEXT: 10. The applicant was in the care of the Eastern Health Board (“the Board”) from when he was 2 years of age until the age of majority (18 years). From 1984 to 1986 he was placed in children's homes and thereafter with a foster family. In 1991 the foster placement broke down and the subsequent placement with a “carer” family also broke down due to the applicant's behaviour. Between 1993 and May 1996 he was detained at Oberstown Boys' Centre on foot of assault charges. Subsequent placements failed again due to the applicant's behaviour and in August 1996 the Board placed him in a private and specialised residential unit in the United Kingdom, which placement also failed.
11. In November 1996 the applicant was convicted in the United Kingdom of criminal damage, burglary, arson and aggravated theft (offences committed during his stay in the above-mentioned residential unit) and sentenced to nine months in prison. In February 1997, and at the request of the Board, the Irish High Court granted a warrant (pursuant to the Transfer of Sentenced Persons Act 1995) allowing the applicant to serve the balance of his nine-month sentence in St Patrick's Institution (“St Patrick's”) in Ireland. The applicant was released on 7 March 1997.
12. He slept rough the first night of his release and subsequently resided on a temporary basis in a homeless boys' hostel run on a voluntary basis by a priest. From then until the judicial review proceedings (described below) issued, the applicant's solicitor wrote to the Board five times requesting that proper accommodation be made available to the applicant. A case conference was held on 14 March 1997 where it was agreed that his needs would be met in a high-support therapeutic unit for 16- to 18-year-olds but that no such unit existed in Ireland and could not be put in place in time for the applicant's needs. It was decided that the Board would look into placements outside Ireland and into interim options in Ireland.
13. On 28 April 1997 the High Court appointed a guardian ad litem and gave the applicant leave to apply for judicial review (citing, inter alia, the Board and the Attorney-General as respondents) for (a) a declaration that, in failing to provide suitable care and accommodation for the applicant and in discriminating against him as compared with other children, the respondents deprived the applicant of his constitutional rights under, in particular, Articles 40 § 1, 40 § 3 (1), 40 § 3 (2) and 42 § 5 of the Irish Constitution. The applicant referred in this context to his being a child at risk, namely dangerous to himself and potentially to others, and pointed out that the lack of appropriate care meant that his rights had not been vindicated; (b) an order of mandamus and an injunction directing the respondents to provide suitable care and accommodation for the applicant were also requested. The grounds submitted by the applicant related to the Board's failure to comply with its statutory duties to provide such accommodation under sections 4, 5, 16 and 38 the Child Care Act 1991; and (c) damages, although the applicant had submitted that he would suffer irreparable loss and damage for which monetary compensation would not suffice (hence the application for an order of mandamus and an injunction).
14. The application for interlocutory relief (namely for relief until the making of a final order following the hearing of the case) came before the High Court on 6, 12, 21 and 30 May 1997. However, on 4 June 1997 the applicant was assaulted by another resident with an iron bar and taken to hospital with a fractured skull. He was operated on and subsequently discharged on 12 June 1997 and spent that night in bed-and-breakfast accommodation. On 13 June 1997 the application was adjourned on the basis that the applicant would reside in the hostel (run by the priest) under continuous 24-hour supervision of childcare workers of the Board. The Board was to continue its enquiries for a suitable facility. On 17 June 1997 the High Court ordered that the applicant reside in Kilnacrot Abbey, another hostel, under the care of social workers of the Board.
15. The interlocutory matter was again considered by the High Court on 26 and 27 June 1997. Evidence was presented to the effect that the applicant's continued residence in that hostel was no longer feasible. Evidence was also heard from the Board's leader responsible for the applicant's case who stated that the Board's facilities could no longer cater for the applicant. A consultant psychiatrist at the Central Mental Hospital in Dublin gave evidence to the effect, inter alia, that he knew of no services in the State that could even start to address the problems the applicant represented. A report was presented detailing a number of serious incidents, including threats of assault made by the applicant, and the court heard the legal submissions of the parties.
16. The High Court delivered its judgment on 27 June 1997. The High Court judge commented at the outset as follows:
“This is yet another case in which the Court is called upon to exercise an original Constitutional jurisdiction with a view to protecting the interests and promoting the welfare of a minor. The application arises because of the failure of the State to provide an appropriate facility to cater for the particular needs of this applicant and others like him. It is common case that what is required to deal with his problem is a secure unit where he can be detained and looked after. No such unit exists in this State and even if one did, there is no statutory power given to the Court to direct the applicant's detention there. Such being the case, and in the absence of either legislation to deal with the matter or the facilities to cater for the applicant, I have in the short-term to do the best that I can with what is available to me.”
17. The judgment described the applicant's history and family situation as “quite appalling”. He was one of a family of five children. His father was serving a life sentence for murder and serious sexual offences. His mother lived a “chaotic lifestyle”, refusing to settle in any type of permanent accommodation. Of his siblings, only one led a normal life. The others were in care, in detention or were drug users.
18. On the evidence before it, the High Court accepted that the applicant was not mentally ill but that he had a serious personality disorder; that he was a danger to himself and to others; that he had a history of criminal activity, violence and arson; that he had absconded from non-secure institutions; that he had failed to cooperate with the Board and its staff; and that he had failed to cooperate in the carrying out of a psychiatric assessment of him in the past. It was “common case” that the applicant required a “secure unit where he can be detained and looked after” and that no such unit existed in Ireland. The High Court judge considered the welfare of the child to be paramount, noted the conflicting constitutional right to liberty of the applicant and observed that the evidence before him as to the child's needs and the facilities available would resolve the conflict. The court considered that there were four possible options.
19. In the first place, the High Court could order the applicant's release from the custody of the Board. However, given the real risk of serious self-injury possibly resulting in death, this option was excluded. Secondly, the applicant could be sent back to Kilnacrot Abbey. However, given the danger he posed to himself and to others and his previous lack of cooperation, the Court ruled out this possibility. The third option was the Central Mental Hospital but the evidence before the High Court and the applicant's own preference ruled out this option.
20. The fourth option was the applicant's detention in St Patrick's, which option was adopted with “considerable reluctance” by the court as the only manner of vindicating the applicant's constitutional rights. The High Court acknowledged that it was a penal institution. However, having noted the conflicting constitutional rights of the applicant, the applicant's needs, the constitutional obligations of the State to the applicant and the relevant jurisprudence of the High and Supreme Courts in similar cases, the High Court judge was satisfied that the evidence supported his findings that, in the absence of any other facility within the State, the place most suitable to ensure the applicant's welfare was St Patrick's, and that the High Court could exercise its “inherent jurisdiction” developed by the jurisprudence (to which the judgment referred) in making an order for the applicant's detention there. It was noted that the applicant had been in that institution previously and seemed to have done well there. Accordingly, he ordered that the applicant be brought to St Patrick's by the police and be detained there for three weeks (until 18 July 1997), all parties agreeing that detention for longer was not appropriate. The High Court judge pointed out in conclusion that he was
“extremely unhappy at having to make this order ... but of the four options available to [him] it is the one which, in [his] view, is best suited to the welfare and needs of this applicant in the short term. It is not a solution. None of the other options are a solution either. But of the four unattractive options it seems to [him] that from the welfare of this applicant it is the least offensive and in [his] view his welfare will be best served by being committed there as [he has] ordered”.
21. Certain conditions were attached to the order by the High Court. The applicant was to be subject to the “normal discipline” of that institution and was to have a full psychiatric assessment. The “fullest cooperation” was requested by the High Court between the Board and the authorities of the institution as regards access by the staff of the Board to the applicant to allow the professionals who had been dealing with the applicant to have input into his welfare whilst in St Patrick's, provided that that did not create insuperable difficulties from the point of view of the management of the institution. In particular, the High Court recommended that the normal visiting restrictions applicable be waived as much as possible in the vital twenty-four hours after the applicant's detention.
22. Moreover, the High Court's concerns about the suicide risks presented by the applicant were to be notified to the Governor of St Patrick's and the appropriate facilities were to be put in place in this respect. The High Court was to receive a report by the psychiatric staff of St Patrick's and by the Board on the applicant's progress, if any, and on his general well-being by 16 July 1997. There was to be liaison between the Board and the guardian ad litem, the latter of whom was to obtain the reports to be prepared for the court on the applicant. In the meantime, the Board was to continue to try to find a suitable place for the applicant's needs outside the jurisdiction and the matter was to be reviewed by the High Court on 18 July 1997.
23. On the same day (27 June 1997) the applicant was brought to St Patrick's and placed in a padded cell overnight.
24. The following day, the Chief Officer informed the applicant of the rules and regulations, the daily routine and of the services that were on offer (educational, welfare, spiritual, library, gym, work and recreation), which latter matters were detailed in a booklet given to the applicant. The applicant was asked if he wished to attend educational classes. He made no such request and did not participate in the institution's educational programme.
25. The applicant appealed to the Supreme Court. He referred to the Board's failure to fulfil its statutory duties under sections 36 and 38 of the Child Care Act 1991 and to respond to his constitutional rights under Article 42 § 5. He also submitted that detention in a penal institution did not appropriately harmonise his conflicting rights under Article 42 § 5 and Article 40 § 4 (1). He also dealt, in his submissions, with the place of detention proposed by the High Court arguing that, if detention was necessary and lawful to protect and vindicate a child's rights, detention in a penal institution was not. A penal institution is a place of punishment, the effect of detention there, with or without conviction, constituted punishment and it was completely different to a high-security unit staffed by qualified childcare workers and operated in a manner consistent with Article 42 of the Constitution. His placement in a suitable high security environment would be more appropriate to his needs and the effect of such an order would be to oblige the Board to comply with its statutory duties and the State to comply with its constitutional duties through the Board. He also relied on Article 5 § 1 (d) of the Convention.
26. On 7 July 1997 the Governor prepared a short conduct report for the Supreme Court in which he noted that the applicant was well behaved, mixed freely with other inmates and had not come under any adverse attention.
27. The Supreme Court heard the applicant's appeal on 9 July 1997 and reserved judgment. Judgment was delivered on 16 July 1997 and, by four votes to one, rejected the appeal. The Chief Justice gave the main judgment of the Supreme Court (two judges concurring) and described the issues before him as being whether the High Court had jurisdiction to order the detention of the applicant and, if so, whether that jurisdiction extended to making an order directing the applicant's detention in a penal institution and, if so, whether the jurisdiction was properly exercised in the applicant's case.
28. The Chief Justice noted that (apart from the particular jurisdiction assigned by the Constitution and by the Statute) the High Court has an inherent jurisdiction “as ample as the defence of the Constitution requires”. The Chief Justice noted the conflicting constitutional rights of the applicant at issue in the case: on the one hand, he had the right to liberty (Article 40) and, on the other hand, he had the unenumerated right “to be fed and to live, to be reared and educated, to have the opportunity of working and of realising his or her personality and dignity as a human being”. The Chief Justice accepted that the High Court could be called upon to establish a priority of such rights as the case demanded. He noted that all parties agreed that the applicant's welfare (which was of paramount importance) required his detention in a “safe and secure unit”, but he regretted that the High Court judge was forced, by reason of the lack of any suitable facility, to order the applicant's detention in a penal institution.
29. In conclusion, the Chief Justice was satisfied that the High Court had jurisdiction to make the order it did, that it did so in a lawful manner consistent with the requirements of the welfare of the applicant and that the High Court was correct in exercising such jurisdiction for a short period of time. He added, however, that the exercise by the courts of their jurisdiction in the case should not be considered by the respondents in the proceedings to relieve them of their statutory obligations regarding the applicant and that they should continue their efforts to make suitable alternative arrangements consistent with the needs of the applicant.
30. A fourth judge considered that the High Court's jurisdiction had not been directly disputed by the parties, and went on to agree with the option chosen by the High Court. The fifth and dissenting judge in the Supreme Court considered that it was not for the courts to conjure up the necessary accommodation but to protect and vindicate the child's rights and for the Board to address its statutory duties and obligations. It was, in that judge's view, a step too far to order the child's detention in a penal institution having regard to his moral, intellectual, physical and social welfare and his rights to liberty, equality and bodily integrity.
31. The High Court heard further expert evidence on 18 July 1997 and apparently the applicant had been cooperative in St Patrick's. The High Court continued his detention in St Patrick's until 23 July 1997 on the conditions previously applicable, the Board being required to inform the court on the return date of the full details and efforts made to provide facilities for the applicant.
32. On 23 July 1997 the Board submitted that it had identified a property which would take a short time to equip and staff to enable it to receive the applicant and it was indicated that it would be ready by 28 July 1997. The Board also indicated that the applicant was to travel to the United Kingdom to be assessed with a view to possible placement there. While the applicant wanted to be immediately released, his guardian ad litem considered that he should not be left on the street. The High Court directed his continued detention in St Patrick's until 28 July 1997 and that every effort should be made by the Board to ensure that the relevant property be ready to receive the applicant by 28 July 1997.
33. On 28 July 1997 the applicant was released from St Patrick's by order of the High Court. Apart from basic personal details and the relevant court orders constituting authority for detention, the applicant's file from that institution contains few entries and his “prisoner's profile” forms were mainly not filled in. There was a note to the effect that he had been placed in a padded cell in June 1997 and a copy of the Governor's report of 7 July 1997.
34. On the same day (28 July 1997) the applicant was placed in the accommodation prepared by the Board under 24-hour supervision. He was allowed to leave the premises occasionally for limited periods. Leave was also given to take the applicant to the United Kingdom for assessment on 31 July 1997.
35. The applicant then absconded from that property and a warrant for his arrest was issued by the High Court on 6 August 1997. He was arrested and brought before the High Court on 8 August 1997. On the same day, and having heard submissions from counsel for the applicant and the Board together with the evidence on behalf of the Board and of the applicant, the High Court ordered the applicant's detention in St Patrick's until 26 August 1997.
36. Conditions were again applied by the High Court to this detention. He was to be subject to the discipline of St Patrick's. A full assessment of the applicant's drug dependency was to be made, the assessment to include any outpatient assessment and/or treatment consistent with the requirements of St Patrick's. There was to be liaison between the authorities of St Patrick's and the Board. By 26 August 1997 the High Court was to be in possession of a report in relation to the applicant's drug-addiction problem prepared by the Board and the staff of St Patrick's. The guardian ad litem was to have liberty to liaise with the authorities of St Patrick's and with the Board. The Governor was requested by the High Court to dispense with the visiting restrictions during the first twenty-four hours of the applicant's detention in so far as possible and consistent with the good running of the institution, to allow the officials of the Board to have full access to the applicant. The matter was adjourned until 26 August 1997.
37. On 26 August 1997 the High Court ordered the applicant's release to the custody of the Board on the same terms as the order of 28 July 1997.
38. On 3 November 1997 the applicant re-entered his judicial-review proceedings. On 10 November 1997 evidence was heard from the Social Work Team Leader, Ms F., on the applicant's case and the applicant was placed in the care of the Board, subject to his attendance at City Motor Sports for practical and vocational education. The case was adjourned to 24 November 1997, on which date it was adjourned to 15 December 1997 to await a progress report from City Motor Sports. On 15 December 1997 the case was adjourned to the following day. On 16 December 1997 the case was adjourned to 19 December 1997 to allow proposals to be made by the Board.
39. On 19 December 1997 the High Court heard evidence from Ms F. in relation to possible long-term accommodation and the case was listed for mention on 22 December 1997, on which date it was listed for mention on 5 January 1998 to allow the Board more time to find appropriate long-term accommodation. On 5 January 1998 evidence was heard from Ms F. and the case was listed for mention on 9 January 1998 in order to give the Board further time. On 9 January 1998 the Board informed the High Court that suitable temporary accommodation was to be ready by February 1998 and the case was adjourned for further discussion to 12 January 1998, on which date the High Court heard evidence from Ms F. It was decided to maintain the care order in force and to adjourn the case until 16 February 1998.
40. On 16 February 1998 the High Court was advised that the applicant had been moved to new short-term accommodation of the Board under 24-hour supervision. The report from City Motor Sports on the applicant was presented and the case was adjourned until 2 March 1998 to allow for his progress to be assessed. On 2 March 1998 the case was adjourned to 23 March 1998 to allow the Board time to prepare recommendations for the reduction of the supervision of the applicant. On 23 March 1998 the High Court ordered that the Board's recommendations be put in place. The recommendations referred to the proposed timing of the withdrawal of supervision, assisting the applicant to obtain his own accommodation and social welfare benefits, the continuation of all necessary social work support after the official care order expired and the informing of the Board's senior management and legal agent of the recommendations given the danger the applicant continued to pose to himself and to others.
41. The applicant remained in the Board's accommodation until April 1998 when he returned to live in the same hostel in which he had stayed in March 1997. On 30 April 1998 his judicial review proceedings were adjourned to 1999. The applicant's eighteenth birthday was on 9 July 1998. He stayed on in the hostel until October 1998 when he was removed to hospital after causing injury to himself.
42. After discharge from the hospital he lived rough on the streets. Having been charged with minor offences he was then charged with more serious offences, was arrested and charged with, inter alia, threatening his uncle with a knife. He was remanded for trial and detained on remand in Mountjoy Prison. The outcome of those proceedings is not known.
43. In his report dated 20 August 1999 addressed to the Department of Justice, St Patrick's medical officer reported that the applicant had been seen by a medical officer on arrival and on several occasions in the following two weeks. The applicant had complained of feeling depressed, especially at night, and was prescribed sleeping tablets. He was referred to a consultant psychiatrist, Mr McC., who kept the applicant on his medication and considered that he was a troubled youth “who felt it difficult to deal with prison life”. The reporting medical officer himself saw the applicant on 7 July 1997, when he treated the applicant for a sprained ankle sustained while playing football. That officer again saw the applicant on 25 July 1997, when he was “becoming frustrated and angry at his situation”. That officer found him “quite well” and prescribed a mild sedative and night-time sedation and asked the visiting psychiatrist to review him. A consultant forensic psychiatrist had also seen the applicant.
The report goes on to mention that that medical officer had no record of any input from the resident psychologist: the latter's records were retained confidentially, it could not be assumed that the latter had had no input and the latter should be contacted for information concerning any proactive treatment carried out with the applicant of which that medical officer was not aware.
44. Mr McC. completed a report on the applicant in November 1999. He mentioned that he had seen the applicant twice: on 30 June and 22 August 1997. During the interviews the applicant did not present any signs of “major psychiatric illness either of a schizophrenic or depressive nature”. There was no mention of how the applicant's detention in St Patrick's impacted on him.
45. The relevant provisions of the Constitution are:
Article 40 § 1
“All citizens shall, as human persons, be held equal before the law. This shall not be held to mean that the State shall not in its enactments have due regard to differences of capacity, physical and moral, and of social function.”
Article 40 § 3 (1)
“The State guarantees in its laws to respect, and in as far as practicable, by its law to defend and vindicate the personal rights of its citizens.”
Article 40 § 3 (2)
“The State shall, in particular, by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name and property of every citizen.”
Article 40 § 4 (1)
“No citizen shall be deprived of his personal liberty save in accordance with law.”
Article 42 § 4
“The State shall provide for free primary education and shall endeavour to supplement and give reasonable aid to private and corporate educational initiative, and, when the public good requires it, provide other educational facilities or institutions with due regard, however, for the rights of parents, especially in the matter of religious and moral formation.”
Article 42 § 5
“In exceptional cases, where parents for physical or moral reasons fail in their duty towards their children, the State as guardian of the common good, by appropriate means shall endeavour to supply the place of parents, but always with due regard for the natural and imprescriptable rights of the child.”
46. The 1991 Act sets out the duties of a health board in relation to the care and protection of children residing in its administrative area. Section 2(1) defines a child as “a person under the age of 18 years other than a person who is or has been married”.
47. Section 3 provides, inter alia, as follows:
“1. It should be a function of every health board to promote the welfare of children in its area who are not receiving adequate care and protection.
2. In the performance of this function, a health board shall –
(a) take such steps as it considers requisite to identify children who are not receiving adequate care and protection and coordinate information from all relevant sources relating to children in its area;
(b) having regard to the rights and duties of parents, whether under the Constitution or otherwise –
(i) regard the welfare of the child as the first and paramount consideration, and
(ii) in so far as is practicable, give due consideration, having regard to his age and understanding, to the wishes of the child; and
(c) have regard to the principle that it is generally in the best interests of a child to be brought up in a family.”
48. The relevant parts of section 4(3)(a) provide as follows:
“Where a health board has taken a child into its care under this section, it shall be the duty of the board –
(a) subject to the provisions of this section, to maintain the child in its care so long as his welfare appears to the board to require it and while he remains a child ...”
49. Section 5 provides as follows:
“Where it appears to a health board that a child in its area is homeless, the board shall enquire into the child's circumstances, and if the board is satisfied that there is no accommodation available to him which he can reasonably occupy, then, unless the child is received into care of the board under the provisions of this Act, the board shall take such steps as are reasonable to make available suitable accommodation for him.”
50. The relevant parts of section 36 provide as follows:
“(1) Where a child is in the care of a health board, the health board shall provide such care for him, subject to its control and supervision, in such of the following ways as it considers to be in his best interests –
...
(b) by placing him in residential care (whether in a children's residential centre registered under Part VIII [of the 1991 Act], in a registered home maintained by the health board or in a school or other suitable place of residence), or
...
(d) by making such other suitable arrangements (which may include placing the child with a relative) as the health board thinks proper.
...
(3) Nothing in this section shall prevent a health board sending a child in its care to any hospital or to any institution which provides nursing or care for children suffering from physical or mental disability.”
51. The relevant parts of section 38 provide as follows:
“1. A health board shall make arrangements with the registered proprietors of children's residential centres or with other suitable persons to ensure the provision of an adequate number of residential places for children in its care;
2. A health board may, with the approval of the Minister, provide and maintain a residential centre or other premises for the provision of residential care for children in care.”
52. In 1997 the Board had two high-support units in existence for children with serious behavioural and emotional problems between the ages of 12 and 18 years. A unit in Wicklow had eight places and a unit in Dublin had four places. In that year, approval was given by the Department of Health to the Board to plan and develop a 24-place special-care unit both in Ballydowd and in Portrane. Subsequently, the matter was reviewed to allow consideration of the costs of these units and to assess the need for them. An expert consultant was appointed to consider such needs in April 1998.
53. The unit in Ballydowd (special-care unit) was completed in January 2001. Construction of the Portrane unit (a high-support unit) was planned to commence in early 2000 and its completion envisaged by September 2001. A special-care unit operates to a high standard of security whereas a high-support unit, while of similar design, operates to a lower standard of physical security.
54. In July 1998 the High Court gave judgment in a case concerning the care of a minor with special needs (minor suing through his mother and next friend S.B. – D.B. v. the Minister for Justice, the Minister for Health, the Minister for Education, Ireland, the Attorney General and the Eastern Health Board (1999) 1 Irish Law Reports Monthly 93). That judgment pointed out as follows:
“First, the High Court has already granted declaratory relief concerning the obligations of the State towards minors of the type with which I am dealing. In so doing it observed the Constitutional proprieties owed by the Court to the administrative branch of government. It went no further than making a declaration thereby affording an opportunity to the Minister to take the necessary steps to put matters right. But it expected those steps to be taken as soon as reasonably practicable.
Secondly, if the declaration was to be of any benefit to the minors in whose favour it was made, the necessary steps consequent upon it has to be taken expeditiously. Otherwise the minors, most of whom are of the age of 12 to 14 years, would have achieved majority within a few years of the declarations being granted without any benefit being gained from them.
Thirdly, the effect of a failure to provide the appropriate facilities must have had a profound effect on the lives of these minors and certainly put them at risk of harm up to and including the loss of their very lives.
Finally, due regard should be had to the efforts made on the part of the Minister to address the difficulties to date. If the Court were to take the view that all reasonable efforts had been made to deal efficiently and effectively with the problem and that the Minister's response was proportionate to the rights which fell to be protected, then normally no order of the type sought ought to be made.”
[The court orders] the Minister for Health to make available to the Eastern Health Board sufficient funding to allow the Eastern Health Board to build, open and maintain a secure 24-bed High Security Unit at Portrane, Co. Dublin, and the Minister for Health to take all steps necessary and to do all things necessary to facilitate the building, opening and maintenance of a secure 24-bed High Security Unit at Portrane, Co. Dublin. The said Unit to be in operation not later than 1 October 2001.”
55. St Patrick's came into being pursuant to section 13 of the Criminal Justice Act 1960. Section 13(3) of that Act foresaw the making of regulations providing for the management of that institution.
56. These regulations deal with the management and functioning of the institution. Section 4 provides that an inmate shall, in so far as the length of his sentence permits, be given such training and instruction and be subjected to such disciplinary and moral influences as will conduce to his reformation and the prevention of crime. Section 5 provides that, subject to the inmate not being declared unfit by the medical officer, an inmate is to be allowed regular physical recreation and exercise and is to be given such regular physical exercise as may be necessary to promote his health and physical well-being. Section 7 provides that, if the Governor is of the opinion that the receipt of letters and visits and the writing of letters by the inmates in addition to those already permitted outside of these regulations will promote the social rehabilitation of the prisoner, then he may permit the inmate to receive so many letters and visits and to write so many letters in addition to those already permitted other than by these regulations as the Governor thinks proper. Section 10 of those regulations provides that:
“So much of the Rules for the Government of Prisons 1947 ... and the Rules for the Government of Prisons 1955 ... as are made under the Prisons' Acts 1826 and 1856 shall, in so far as they are not inconsistent with these Regulations, apply and have effect in relation to inmates and the Institution in like manner as they apply and have effect in relation to prisoners and prisons.”
57. Male offenders aged between 16 and 21 may be committed to St Patrick's either while on remand or after sentencing as it is considered to provide a more suitable environment for young offenders. The majority of male offenders aged between 16 and 17 are held in St Patrick's. As at 16 May 2001, approximately one third of the detainees were 16 or 17 years of age. The regime is as liberal and relaxed as possible within the confines of a secure institution.
58. Cells are unlocked at 8.15 a.m. when the inmates may collect breakfast and then return to their cells; at 9.15 a.m. these are unlocked to permit the inmates to attend a place of employment or school; at 12.15 p.m. they come back, collect lunch and return to their cells; at 2.15 p.m. the inmates may attend a place of employment or school; at 4.10 p.m. they come back, collect their evening meal and return to their cells; at 5.15 p.m. the cells are unlocked for evening recreation; at 7.30 p.m. the inmates come back, collect supper and return to their cells; at 8 p.m. the cells are locked; and at 10 p.m. the lights are switched off.
59. All sentenced prisoners are required to work, although the workshops do not operate on a commercial basis as they are only for training purposes. The emphasis is on training in skilled or semi-skilled work.
60. The Education Unit is open five days a week and has eight full-time staff and approximately seventy to eighty full- and part-time students at any one time on the education register. Along with work training, education comprises one of the two main activities for the inmates. A broad programme of education is emphasising literary and basic education, with classes on health and social education. The unit is equipped with computers, available for learning or for recreational purposes. Students may sit for State school examinations. Upon their arrival all inmates are asked if they wish to attend education classes. Attendance and level of participation is voluntary. Any special requests or particular needs would be regularly discussed by the teaching staff.
61. Inmates are free to recreate during unlocked periods at weekends, on bank holidays, in the evenings of week days and when not attending work or education classes. Facilities include television, table games, a library, a gym and other games (including football, pool and table football) and a reading room. There are certain organised activities (including gym, pool, football, quizzes and chess). Daily newspapers, magazines and other publications are also available to inmates together with sports kits and board games.
62. In general, every prisoner is entitled to at least one visit per week, but in practice visits are allowed more frequently where circumstances permit. Visits in open centres are unsupervised and may be granted on demand. Telephone calls are frequently demanded and permitted. Inmates serving sentences are generally allowed to send two letters per week. Extra letters to family or to legal representatives may be allowed on request. An inmate awaiting trial may send out as many letters as he likes and there is no limit to the number of letters that he may receive.
63. Particular emphasis is placed on the rehabilitation of young offenders in custody and, accordingly, a wide range of services are available. An education service is provided in conjunction with vocational education committees and teachers work in the prison on a full or part-time basis. Training in various vocational skills is available to offenders, including juveniles, with some inmates going on to take city and guilds examinations. Library facilities are provided in conjunction with the public library service and a range of publications including newspapers and magazines are available for recreational purposes. A range of sports and other recreational facilities are available. The prison psychology service together with the probation and welfare services participate in the positive management of sentences and provide counselling to help offenders to cope during custody. A medical service is available including a drug-detoxification programme together with addiction counselling, the latter of which is provided in conjunction with and by various outside agencies such as Alcoholics Anonymous and Narcotics Anonymous.
64. Approximately forty to fifty staff members are employed to facilitate and provide these educational and recreational services to inmates.
VIOLATED_ARTICLES: 5
VIOLATED_PARAGRAPHS: 5-1
5-5
NON_VIOLATED_ARTICLES: 14
3
5
8
NON_VIOLATED_PARAGRAPHS: 5-1


ITEMID: 001-72893
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF SUKHOVETSKYY v. UKRAINE
IMPORTANCE: 1
CONCLUSION: No violation of P1-3;Not necessary to examine under Art. 14+P1-3
JUDGES: Antonella Mularoni;Ireneu Cabral Barreto;Jean-Paul Costa;Karel Jungwiert;Volodymyr Butkevych;Zoryana Bortnovska
TEXT: 7. The applicant was born in 1939 and lives in the village of Agronomichne, Vinnitsa region.
8. On 30 January 2002 the electoral commission of constituency no. 11 refused to register the applicant as a candidate in the parliamentary elections on account of his failure to pay the electoral deposit, the amount of which was sixty times the tax-free monthly income (1,041 Ukrainian hryvnias (UAH)). On 8 February 2002 the Central Electoral Commission upheld this decision, noting, inter alia, that the applicant had submitted all the relevant documents to the local electoral commission, but had failed to pay the electoral deposit as required by the Parliamentary Elections Act of 18 October 2001.
9. The applicant challenged these decisions before the Supreme Court, stating that he was unable to pay the deposit as his annual income (approximately UAH 960) was less than this sum.
10. By a judgment of 15 February 2002, the Supreme Court dismissed the applicant’s complaint. In particular, the court found that the applicant was free to stand as a candidate for parliamentary elections on condition that he pay the electoral deposit. The court also referred to the Ukrainian Constitutional Court’s decision of 30 January 2002 which stated that the deposit requirement complied with the Constitution.
11. The relevant Articles of the Constitution provide as follows:
“...There shall be no privileges or restrictions based on ... political ... and other beliefs ..., [or] property status ...”
“... A citizen of Ukraine who has attained the age of 21 on the date of elections has the right to vote and, if that citizen has resided in the territory of Ukraine for the previous five years, may become a member of the national parliament ...”
12. Section 8(1) of the Act as worded at the material time established that a Ukrainian citizen who had reached the age of 21 by the date of the elections, had been resident in Ukraine for the last five years before the elections and was entitled to vote was eligible to stand for election to Parliament.
13. Under section 38(2) of the Act, a Ukrainian citizen who was eligible for election to Parliament could put forward his or her own candidature by lodging an application with the competent district electoral commission.
14. Pursuant to section 43(1) and (2), at the material time a party or block of parties, and independent candidates, were required to pay, respectively, an electoral deposit of 15,000 times and 60 times the tax-free monthly income. The deposits were returned to successful candidates and parties (that is, parties which received at least 4% of the national vote) and money deposited by unsuccessful candidates and parties was forfeited.
15. Section 51 provided for State funding of part of the expenses incurred by registered candidates during an electoral campaign. Candidates had equal access to State funding.
16. According to section 52, the competent district electoral commissions were to print 2,000 copies of electoral posters for each registered candidate, the cost being borne by the State budget.
17. Under section 54, State-run local television and radio broadcasting companies were to provide each registered candidate with ten minutes of free air-time to present their programme to the electors. The cost was borne by the State budget.
18. On 1 October 2005 Parliament amended the Act, replacing the mixed proportional/majority electoral system with party-list proportional representation.
19. Proceedings were initiated before the Constitutional Court following a constitutional petition (конституційне подання) by sixty-three members of parliament, who challenged section 43 of the 2001 Act on the ground that it established a property qualification, which discriminated against less successful citizens and was contrary to Article 24 of the Constitution. The Speaker of Parliament and the President of Ukraine submitted observations on the issue. The Speaker upheld the disputed provision in principle, but expressed his concern as to the actual amount of the required deposit. The President indicated that he had vetoed the original bill during its passage through Parliament on the ground that the proposed amount was excessive. According to the President, once the deposit had been substantially lowered, this measure ceased to violate human rights and freedoms.
20. The Constitutional Court held that the electoral deposit was not a direct or indirect limitation of the right to stand for election, since it did not predetermine the citizen’s right to elect or be elected. The deposit was no more than a precondition for the candidate’s registration by the electoral commission. All candidates had to pay the same amount, irrespective of their financial situation, and thus it could not be considered discriminatory on grounds of property. The electoral deposit was intended both to encourage a responsible attitude towards elections on the part of potential candidates and to prevent an abuse of electoral rights. Moreover, it was aimed at preventing excessive or unreasonable expenditure of the State funds allocated to cover candidates’ costs.
21. The Constitutional Court also indicated that establishment of the actual amount of the deposit fell within the discretionary powers of the political authorities and was thus outside its jurisdiction.
22. The electoral commission of the single-member constituency no. 11 registered twenty candidates for the 2002 parliamentary elections (two subsequently withdrew), twelve of whom were independent candidates, including two professors and a doctor who worked in a public hospital.
23. The electoral laws of at least fourteen member States of the Council of Europe require deposits to be made by candidates for election, although in some this condition applies to electoral lists, not individual candidates. Several democratic States outside Europe have also introduced this requirement (see paragraphs 30-33 below).
24. The sum to be paid is calculated in various ways, for example, by multiplying certain amounts predetermined by law (such as the minimum wage in Armenia, the average wage in Lithuania) or by applying a fixed amount (as in Bulgaria). The actual sum for individual candidates currently varies from EUR 92 (Malta) to EUR 2,600 (Bulgaria).
25. Although registered candidates usually receive various forms of support from public funds (free television air-time, postal services, premises for meetings, etc.), this is not always the case.
26. Deposits are normally refunded if the candidate obtains a certain percentage of the votes cast. Only the laws of Ukraine, Turkey and Lithuania provide that the deposit is forfeited if the candidate does not actually win a seat.
27. In the Redmond case (Redmond v. Minister for the Environment [2001] IEHC 128), the plaintiff argued before the Irish High Court that, since he was unemployed and had virtually no financial resources, he was unable to pay the deposit required for national parliamentary elections and European elections (300 and 1,000 Irish pounds respectively). In his judgment (at paragraph 80), Mr Justice Herbert summarised eight reasons which had been put forward to justify a deposit system or some equivalent filter:
“1. Excessively ... large numbers of citizens offering themselves for election to membership of Dáil Eireann would undermine the democratic nature of the State.
2. The presence of a large number of names on a ballot paper would serve to confuse the electorate.
3. Voters would be likely to make a choice before reading a long list of candidates to the end and this would not serve democracy.
4. The more unsuccessful candidates there are in an election the more difficult it is to achieve proportional representation so that a major ... increase in the number of candidates would serve to undermine the proportional representation single transferable vote system of election mandated by Article 16, section 2, subsection (5) of the Constitution.
5. The greater the number of unsuccessful candidates the more difficult it becomes for voters to predict the outcome of the election so that their ability to properly manage their vote is lost or impaired.
6. The counting of votes would take longer as the numbers of candidates increased and with more candidates there was a greater scope for more and longer recounts.
7. With many candidates seeking to persuade the electorate within the maximum period of 30 days allowed by Article 16, section 3, subsection (2) of the Constitution, election campaigns would become disruptive and the electorate could become confused or apathetic.
8. The process of nomination, delivering nominations, and ruling on the validity of nominations would become overwhelmed if large numbers of candidates were to stand for election.”
28. Mr Justice Herbert went on to hold that the deposit system discriminated against persons of reduced means and was thus an attack on their human dignity. Having considered the justifications above, he nevertheless concluded that there was no real evidence that abolishing the deposit system would cause such serious disruption, as those arguments were based on surmise. In conclusion, he ruled that, in the absence of some alternative route to the ballot paper, the deposit system was unjust, unreasonable and arbitrary.
29. The following year, the deposit system was replaced by a nomination and signatures system.
30. In Figueroa v. Canada (Attorney-General), the plaintiff, leader of the Communist Party of Canada, challenged various aspects of Canadian electoral law on the ground that they allegedly discriminated against small, unrepresented parties such as his.
31. In the Ontario Court of Justice, Justice Molloy invalidated the existing deposit rule, according to which the 1,000 Canadian dollars (CAD) required from election candidates was only refunded in full to those who obtained more than 10% of the votes cast. Those who obtained less received only CAD 500 of the original deposit. The judge found this to be in violation of section 3 of the Charter of Rights and Freedoms (active and passive voting rights), and recommended the full reimbursement of the deposit irrespective of the candidate’s score.
32. Before the Ontario Court of Appeal, Justice Doherty did not accept the lower court’s equation of fairness with strict equality of treatment in the matter of electoral law. He held that the essential purpose of section 3 of the Charter was to guarantee the right to effective representation, rather than ensuring absolute parity. Equal treatment was an important consideration, but not the only one.
33. In the third periodic report of Mauritius, the Mauritian delegation stated:
“With reference to the recent case in which a political organisation had contested the amount by which electoral deposits had been raised, the Supreme Court had decided that the size of the increase would prevent people from standing for election and was therefore unconstitutional. The Government had originally amended the law to stop people from standing for frivolous reasons and obtaining large amounts of air-time in exchange for a very modest deposit. In the wake of the Supreme Court ruling, electoral deposits had reverted to the previous amount of 250 rupees.”
34. A political debate concerning the electoral deposit is currently under way in the United Kingdom.
35. The deposit was first introduced in 1918 in the Representation of the People Act, and fixed at 150 pounds sterling (GBP). The refund threshold was one-eighth of the votes cast. The Representation of the People Act 1985 reduced the threshold to 5%, but increased the deposit to GBP 500.
36. In 2003 the Electoral Commission, concerned by growing political absenteeism in the United Kingdom, published a report entitled “Voting for change”, in which, inter alia, it advocated the abolition of the deposit system. The Commission considered that this requirement clearly disadvantaged small parties and independent candidates (for example, the Green Party lost all of its deposits in the 1992 and 1997 parliamentary elections).
37. The government did not support this proposal, considering that the elimination of the deposit would allow anyone to stand for election and gain access, for instance, to free leafleting, without any proper safeguards or deterrent. This could lead to a proliferation of candidates causing administrative complexity and frivolous candidatures. Instead it proposed to simplify the system of deposits (keeping the deposit for parliamentary elections at GBP 500) and to reduce the refund threshold to 2% of votes cast. In 2005 a bill to this effect was put before Parliament (SN/SG/3779).
38. The relevant part of the Code of Good Practice in Electoral Matters provides:
“Principle I.1.3. Submission of candidatures
...
vi. If a deposit is required, it must be refundable should the candidate or party exceed a certain score; the sum and the score requested should not be excessive.”
39. The Venice Commission has offered expert evaluations of the electoral laws of many Council of Europe member States. The issue of electoral deposits was one of the Commission’s concerns when assessing the draft amendments to the Armenian Electoral Code. The draft joint opinion of the Venice Commission and the Office for Democratic Institutions and Human Rights of the Organisation for Security and Co-operation in Europe (the OSCE/ODIHR) stated:
“20. The draft amendments eliminate the requirement of collecting signatures supporting a candidate’s nomination and raise the amounts of electoral deposits. This is acceptable in principle. However, the draft (amendments to Articles 71(1), 101(1)(1) and 108(2)), would raise the electoral deposits significantly (in case of presidential elections, from 5,000 to 8,000 [times the minimum salary]; in case of proportional elections, from 2,500 to 4,000 and in case of majority elections from 100 to 150 times the minimum salary). It is recommended that these increased deposit amounts be reconsidered, as it is not apparent that the existing deposit amounts are insufficient to deter frivolous candidates. An unreasonably high electoral deposit also presents a problem under international and European standards. It is an established principle that wrongful discrimination includes discrimination against a person on the basis of social or property status. Thus, the amount of an electoral deposit must be considered carefully to ensure that it does not prevent the candidacy of a serious candidate who happens to be economically disadvantaged.”
40. However, as the Armenian authorities followed the Commission’s recommendations, electoral deposits ceased to be a matter of concern for international experts. The Final Opinion on the Amendments to the Electoral Code of the Republic of Armenia contained the following passage:
“17. The amendments eliminate the requirement of collecting signatures supporting a candidate’s nomination. This is acceptable in principle. Contrary to the various previous drafts, the deposits are not raised in the amended Code (Articles 71(1), 101(1)(1) and 108(2)), and remain the same as in previous elections, e.g. in case of presidential elections, at 5,000; in case of proportional elections, at 2,500; and in case of majority elections at 100 times the minimum salary. This corresponds to the previous Venice Commission and OSCE/ODIHR recommendations. Absent evidence of high numbers of potential frivolous candidates, such deposits seem reasonable.”
41. In General Comment no. 25(57), adopted by the United Nations Human Rights Committee under Article 40 § 4 of the International Covenant on Civil and Political Rights, dated 12 July 1996, the Committee referred briefly to the issue of election fees or deposits in the following terms:
“16. ... Conditions relating to nomination dates, fees or deposits should be reasonable and not discriminatory.”
42. In its Concluding Observations on the report of the United States of America, the Committee commented on the broader (but related) issue of the substantial financial investment required of election candidates in the United States:
“289. The Committee welcomes the significant efforts made in ensuring to everyone the right to vote but is concerned at the considerable financial costs that adversely affect the right of persons to be candidates at elections.”


ITEMID: 001-22624
LANGUAGEISOCODE: ENG
RESPONDENT: HRV
BRANCH: ADMISSIBILITY
DATE: 2002
DOCNAME: TOTH v. CROATIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Christos Rozakis
TEXT: The applicant, Mr Milenko Toth, is a Croatian citizen, who was born in 1962 and presently serves a prison term in the Lepoglava State Prison (Kazneni zavod Lepoglava - hereinafter the “LSP”). The respondent Government are represented by their Agent Ms Lidija Lukina-Karajković.
The facts of the case, as submitted by the parties, may be summarised as follows.
Following his conviction for murder in 1995 the applicant was sent to serve his prison term in the LSP.
It appears from the medical documentation submitted by the Government that since 7 May 1997 the applicant has suffered from various health complications including problems with his teeth, gastritis, rheumatism and swollen joints.
According to the Government, from May 1997 the applicant often sought medical help in the Prison’s dental clinic. He complained about toothache. Two dentists working there, D.K. and A.M., provided the applicant with necessary care, including implantation of fillings. In spite of that treatment, the applicant continued to complain about toothache and three of his teeth were pulled out.
On 10 and 27 February 1998 Ceporex pills (antibiotic) were prescribed to the applicant. The expiry date of the pills was October 2001.
The applicant still continued to complain about toothache and asked that some other teeth be pulled out. Having doubts as to the applicant’s allegations, A.M. sent the applicant to an oral surgeon on 20 March 1998. He decided that there was no need to pull out more teeth. After that the applicant stopped visiting the dental clinic.
According to the applicant he did not receive proper dental care. Instead, he had continuously been given wrong medication and treated with medication which was useless and old. Due to this improper treatment he suffered immense pain and had to have four teeth removed.
He once received Ceporex pills and once Amoxil pills (both antibiotics). After he took that medication he suffered strong abdominal pain. In April 1998 he went to a hospital in Zagreb where he was diagnosed with gastritis. There, he also had two teeth pulled out.
When he returned to the LSP the dentists A.M. and D.K. refused to see him again.
In the summer of 1999 a new dentist arrived to the Prison dental clinic and he pulled out three other of his teeth. Altogether the applicant had nine teeth pulled out.
On 18 March, 1 April, 23 April and 6 May 1998, respectively, the applicant filed a criminal complaint with the Ivanec Municipality Public Prosecutor’s Office (Općinsko državno odvjetništvo u Ivancu) against D.K. and A.M., dentists in the LSP, alleging that they had administered him medication whose date of use had already expired. As a consequence he had suffered strong pain and also contracted gastritis. He alleged further that S. K., the director of the LSP, had abused his office and official authority in so far as he had allowed that the inmates in the LSP receive unhealthy food of low quality.
The Public Prosecutor’s Office interviewed D.K. and A.M., examined the applicant’s medical documentation and on 6 July 1998 dismissed the above complaint, stating that the applicant had failed to show a reasonable suspicion for his allegations. The applicant was instructed that he might takeover the prosecution.
On 14 July 1998 the applicant lodged a request for an investigation with the Varaždin County Court Investigations Department (Istražni Odjel Županijskog suda u Varaždinu), with the same allegations. The investigating judge of that court instructed the applicant that for the offence allegedly committed by D.K. and A.M. he had to file a motion for prosecution (optužni prijedlog) with the competent municipal court. Concerning the allegations against S.K. the investigation judge examined the reports on the control of the quality of food served to the inmates in the LSP and did not find inadequacy in the quality of food. He expressed his disagreement with the applicant’s request and forwarded the case-file to the panel of the Varaždin County Court (Županijski sud u Varaždinu) to decide thereon.
On 15 July 1998 the applicant repeated some of his allegations in a letter to the Varaždin County Court Criminal Investigations Department, stating that the dentists in the LSP had administered wrong medication to him.
On 20 October 1999 the applicant filed a criminal complaint with the Ministry of Justice (Ministarstvo pravosuđa Republike Hrvatske), alleging that dentist D. K. had poisoned him with wrong medication which had caused him gastritis. He alleged further that he was given the wrong medication and medical treatment by other medical personnel in the prison and was not provided with an adequate diet.
On 29 October 1999 the above complaint was forwarded to the Varaždin County Court.
On 29 November 1999 the applicant filed with the Ministry of Justice a request for damages caused to him due to the wrong medical treatment and inadequate diet in the LSP.
By letter of 21 December 1999 the Ministry of Justice informed the applicant that it had no jurisdiction to decide upon the above request and instructed him to file his request for damages against the Republic of Croatia with a regular civil court.
On 28 December 1999 the Varaždin County Court accepted the investigating judge’s disagreement with the applicant’s request for an investigation of 14 July 1998. It stated that in respect of the applicant’s allegations against the medical personnel of the LSP for the offence of medical malpractice the applicant was not entitled, according to the relevant provisions of the Criminal Procedure Act, to request an investigation but, instead, had to file a motion to indict with the competent court. As regards the applicant’s allegations against the director of the LSP the court accepted the report submitted by the investigating judge who had found, based on the reports of the inspection regularly conducted in the LSP, that the quality of food for the inmates was adequate.
On 11 January 2000 the applicant appealed against the above decision to the Supreme Court.
On 13 January 2000 the applicant filed with the Ivanec Municipal Court (Općinski sud u Ivancu) a motion to indict D. K. and A. M., dentists in the prison, and S. K., the director of the prison. He repeated his allegations against them.
On 28 February 2000 the Varaždin Municipal Court (Općinski sud u Varaždinu) dismissed various of the applicant’s motions to indict four judges of the Varaždin County Court, the director of the LSP, a member of the prison personnel and two prison dentists. In respect of the allegations against the prison director, a member of the prison personnel and two dentists, the court found that the applicant had previously filed a criminal complaint and a request for an investigation with the public prosecutor, which were dismissed, of alleged medical malpractice and abuse of the office and official authority, while in his motion to indict he had alleged that they had accepted a bribe. Accordingly, he had to file a criminal complaint with the competent public prosecutor for alleged bribing.
On 2 March 2000 the applicant filed a criminal complaint with the Ivanec Municipality Public Prosecutor’s Office against the medical personnel in the LSP for “the brutal treatment of the wounded, sick and prisoners of war and medical malpractice” alleging that they had administered to him wrong medication and failed to provide him with adequate medical treatment for his various illnesses. He also requested compensation for physical and mental suffering caused to him by ill-treatment in prison.
On 8 March 2000 the applicant appealed against the Varaždin Municipal’s Court decision of 28 February 2000 to the Varaždin County Court.
On 17 July 2000 the applicant wrote to Parliament alleging, inter alia, that the LSP authorities had been depriving him of medical assistance.
On 19 September 2000 the Supreme Court (Vrhovni sud Republike Hrvatske) upheld the Varaždin County Court’s decision of 28 December 1998 accepting the investigating judge’s disagreement with the applicant’s request for an investigation.
On 9 October 2000 the applicant lodged a constitutional complaint against the Supreme Court’s decision.
On 6 December 2000 the Constitutional Court (Ustavni sud Republike Hrvatske) rejected the applicant’s complaint as inadmissible.
On 4 January 2001 the Varaždin County Court rejected the applicant’s appeal against the Varaždin Municipal Court’s decision of 28 February 2000. The applicant then filed a constitutional complaint against that decision. On 11 April 2001 the Constitutional Court rejected the complaint as inadmissible.
On 1 February 2000 the LSP director adopted a disciplinary measure against the applicant, ordering solitary confinement for twenty-one days, for using obscene and insulting language against the prison personnel in his letter of 21 January 2000 sent to the Ivanec Municipal Court.
On 2 February 2000 the applicant filed a motion with the Ivanec Municipal Court to indict S. K., the prison director, his deputy and three other members of the prison personnel alleging that the deputy director had ordered solitary confinement against him for twenty-one days and that he had threatened to kill the applicant if he continued to file criminal complaints against him. The applicant alleged also that the members of the prison personnel had tortured him, attempted to poison him and prevented him from receiving medical treatment.
On 20 February 2000 the applicant sent a letter to the president of Croatia repeating his allegations against the prison personnel.
On 21 February 2000 the applicant appealed to the LSP director against the decision ordering disciplinary measure against him.
On 28 February 2000 the LSP director dismissed the applicant’s appeal.
On 1 March 2000 the applicant was placed in solitary confinement for twenty-one days.
According to the Government, before he was placed in solitary confinement, the applicant had been examined by a doctor who found that the applicant’s health condition apart from slight digestive problems and minor back-pain was well.
According to the applicant his health was not well because he suffered pain in his joints which were broken.
On 3 March 2000 the Minister of Justice visited the applicant in solitary confinement. He talked to the applicant for about twenty minutes and the applicant did not complain about his treatment in solitary confinement.
On 6 March 2000 the applicant filed with the Ivanec Municipal Court additional submissions to his previous motions to indict the director of the LSP and four other members of the prison authorities. He alleged, inter alia, that the prison authorities had placed him in a solitary confinement for 21 days although he was seriously ill and prevented him from using his bed during daytime. In addition he maintained his allegation that the deputy director had threatened to kill him if he continued with his allegations against the prison authorities. The submissions were sent to the Ivanec Public Prosecutor’s Office.
The applicant was medically examined once again two weeks after being released from solitary confinement, on 13 April 2000 because he complained that he had breathing problems. The doctor stated that the applicant had for years been suffering from breathing problems through nose, from nose secretion and headache.
On 15 March 2000 the applicant sent a letter to the Red Cross Committee alleging that he had been tortured in the LSP.
On 17 July 2000 the applicant wrote to Parliament alleging that the LSP authorities had been confiscating his letters, torturing him and depriving him of medical assistance.
On 18 July 2000 the Ivanec Public Prosecutor’s Office informed the applicant that it found no ground to institute criminal proceedings against the LSP personnel. It also pointed out that the applicant had not submitted any evidence in support of his allegations.
On 1 September 2000 the applicant filed yet another motion with the Ivanec Municipal Court to indict the prison director and four other members of the prison authorities, repeating his previous allegations.
On 26 November 2000 the applicant sent a letter to the Ministry of Justice alleging that he had been physically attacked by inmates and prison guards and requesting to be taken to another department.


ITEMID: 001-88399
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF DENISOVA v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial;Violation of Article 1 of Protocol No. 1 - Protection of property
JUDGES: Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens
TEXT: 4. The applicant was born in 1938 and lives in Novovoronezh, a town in the Voronezh Region.
5. As a victim of Chernobyl, the applicant is entitled to benefits. Considering herself underpaid, she brought six sets of proceedings against the local welfare authority.
6. On 18 October 2000 the Novovoronezh Town Court awarded the applicant arrears and legal costs in the amount of 3,014.09 Russian roubles (RUB). This judgment became binding on 28 October 2000 and was partly enforced on 24 September 2003.
7. On 16 June 2003 the Town Court awarded the applicant more arrears in the amount of RUB 19,315.50. This judgment became binding on 19 August 2003 and was enforced on 17 December 2004.
8. On 16 February 2004 the Town Court awarded the applicant arrears in the amount of RUB 16,765.50, and on 1 April 2004 the appeal court in addition fixed a new amount of periodic payments. This judgment became binding on 1 April 2004 and was enforced on 3 August 2005.
9. On 15 March 2004 the Town Court awarded the applicant arrears in the amount of RUB 4,973.57. This judgment became binding on 25 March 2004 and was enforced on an unspecified date.
10. On 26 August 2004 the Town Court awarded the applicant arrears in the amount of RUB 21,118.50. This judgment became binding on 6 September 2004 and was enforced on 24 August 2005.
11. On 26 August 2004 the Town Court also awarded the applicant further arrears in the amount of RUB 1,772.30 and fixed a new amount of periodic payments. This judgment became binding on 6 September 2004 and was enforced on an unspecified date.
12. On the applicant’s request, on 31 May and 16 November 2005 the Town Court compensated the applicant’s inflationary loss caused by the delayed enforcement of the judgments in the total amount of RUB 9,369.86.
13. Under section 9 of the Federal Law on Enforcement Proceedings of 21 July 1997, a bailiff must enforce a judgment within two months. Under section 242.2.6 of the Budget Code of 31 July 1998, the Ministry of Finance must enforce a judgment within three months.
VIOLATED_ARTICLES: 6
P1
VIOLATED_PARAGRAPHS: P1-1


ITEMID: 001-91442
LANGUAGEISOCODE: ENG
RESPONDENT: FIN
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF JAANTI v. FINLAND
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial
JUDGES: David Thór Björgvinsson;Giovanni Bonello;Ján Šikuta;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä
TEXT: 4. The applicant was born in 1951 and lives in Espoo. He is an attorney.
5. The applicant was suspected of aiding and abetting aggravated embezzlement. He was first questioned by the police on 28 September 1998. He was subsequently questioned again in connection with two other similar offences.
6. On 14 December 2000 the public prosecutor brought charges against him and another defendant, R, in the Helsinki District Court (käräjäoikeus, tingsrätten). The court held its first session on 29 November 2001. In the course of the proceedings, the court was presented with written evidence, including 94 documents submitted by the applicant. It also received testimony from both defendants and twelve witnesses, four of whom were called by the applicant. The evidence included a written statement and the oral testimony of the Bankruptcy Ombudsman. On 10 May 2002 the court gave its judgment. It found that on 30 September 1994 the applicant had, as a receiver of a bankrupt’s estate, unlawfully transferred a substantial sum of money from the estate’s bank account to the account of his own law firm. The court also found that, on the same date, he had aided and abetted his associate R in the commission of two similar offences. The court convicted the applicant of aggravated embezzlement and two counts of aiding and abetting aggravated embezzlement and sentenced him to a suspended term of one year and four months’ imprisonment. R was found guilty of having made unlawful money transfers on several separate occasions between 29 April 1993 and 31 May 1996. He was convicted of two counts of aggravated embezzlement, as well as aiding and abetting the applicant’s aggravated embezzlement.
7. The applicant, R, and the prosecutor all appealed against the judgment to the Helsinki Court of Appeal (hovioikeus, hovrätten). At the applicant’s request, the court had extended by some five weeks the time-limit for lodging his appeal. In his letter of appeal, lodged on 16 July 2002, the applicant claimed that he had only transferred funds to which he believed he was entitled as a retainer and that he had, therefore, lacked criminal intent. He made similar claims in connection with the two counts of aiding and abetting R’s offences. He also referred, inter alia, to the written statement of the Bankruptcy Ombudsman, in which the latter had considered it possible that the applicant had, in fact, lacked criminal intent in regard to the alleged embezzlement. On 15 and 17 November 2004 the Court of Appeal held an oral hearing. By its judgment of 13 January 2005 it upheld the applicant’s conviction but changed his sentence to one year and ten months’ unconditional imprisonment. In its reasons the court had regard, inter alia, to the Bankruptcy Ombudsman’s testimony. The Ombudsman had noted, inter alia, that at the time of drawing up his written statement he had not had all the information about the applicant’s actions in the matter or, at least, had not paid attention to it. He had also testified that the receiver of a bankrupt’s estate did not have a right to withdraw money from the estate’s account without consent.
8. On 4 May 2005 the Supreme Court (korkein oikeus, högsta domstolen) refused leave to appeal.
9. Chapter 6, section 7, subsection 3 of the Penal Code (rikoslaki, strafflagen; as amended by Act No. 515/2003 which took effect on 1 January 2004) reads:
“In addition to what is provided above in section 6, grounds for mitigating the sentence that are also to be taken into consideration are
...
(3) a considerably long period that has passed since the commission of the offence;
if the punishment that accords with established practice would for these reasons lead to an unreasonable or exceptionally detrimental result.”
10. In its judgment of 11 June 2004 (KKO 2004:58), the Supreme Court noted that, although there were no legal provisions justifying the dismissal of a criminal charge due to unreasonably long proceedings, such a dismissal or declaring a case inadmissible might in some exceptional circumstances, for example if their duration ruled out a good defence, be the only effective remedy satisfying the requirements of Article 13 of the Convention. That was, however, not the case here. In considering whether there were grounds for applying Chapter 6, section 7, subsection 3 of the Penal Code, the Supreme Court held that it had to be decided in casu whether the duration of the proceedings (here over 5.5 years) had been unreasonable. It concluded that in this case there were no grounds not to impose a sentence or to mitigate the sentence owing to the duration of the proceedings.
VIOLATED_ARTICLES: 6


ITEMID: 001-103109
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: ADMISSIBILITY
DATE: 2011
DOCNAME: GABIBULLAYEV v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Ganna Yudkivska;Isabelle Berro-Lefèvre;Julia Laffranque;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen
TEXT: The applicant, Mr Nizayutdin Dadashevich Gabibullayev, is a Ukrainian national who was born in 1961 and lives in Kharkiv, Ukraine. He was represented before the Court by Mr A.P. Bushchenko, a lawyer practising in Kharkiv. The Ukrainian Government (“the Government”) were represented by their Agent, Mr Y. Zaytsev, of the Ministry of Justice of Ukraine.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 16 December 2004 a criminal case concerning tax evasion was opened against the management of a private company, V., the applicant’s employer.
On the morning of 17 December 2004 tax police officers arrested the applicant at his work and brought him to the tax police office. There the applicant was questioned as a witness. When the applicant refused to answer any questions, an unknown person came into the room and started beating the applicant. The tax police officer, U., who was present in the room, did not prevent the applicant’s beating.
The applicant was later brought to the Eastern Region Transport Prosecutor’s Office and released in the evening of the same day.
Once he was back at home, an ambulance was called for him. He was taken to hospital, where he was diagnosed with a rib fracture and a head injury. The injuries were confirmed by the note issued on 18 December 2004 by the ambulance station.
On 18 December 2004 the applicant asked the Kharkiv Regional Prosecutor’s Office to institute criminal proceedings against the tax police officers.
On 20 December 2004 a medical examination confirmed that the applicant had a rib fracture and a bruise on the right side of his forehead, and that it was possible that these injuries had been inflicted on the evening of 17 December 2004.
On 25 January 2005 the Kharkiv Regional Prosecutor’s Office refused to institute criminal proceedings following the applicant’s complaints. The prosecutor found that the applicant’s complaints were unsubstantiated. No explanation for the applicant’s injuries had been provided.
On 15 February 2005 the decision of 25 January 2005 was quashed by the Kharkiv Regional Prosecutor’s Office. The applicant was informed that his case had been transferred to the Poltava Regional Prosecutor’s Office.
Following a forensic medical examination carried out in February and March 2005, the expert found that on 20 December 2004 the rib fracture could not have been more than three weeks old and the head injury not more than three days old.
On 31 August 2005 the deputy prosecutor of the Oktyabrskyy District of Poltava refused the applicant’s request to institute criminal proceedings against the tax police officers. Officer U., when questioned, said that he had not beaten the applicant. It was further concluded that the applicant’s injuries had been inflicted before 18 December 2004, namely, “before the applicant was questioned by the tax police officers”.
On 28 November 2005 the applicant enquired about the progress of his case.
By a letter of 18 January 2006 the applicant was informed of the decision of 31 August 2005.
On 31 August 2008 the applicant was again informed of the decision of 31 August 2005.
The applicant states that he never received these letters and only learned of the decision of 31 August 2005 on 10 March 2010 from the Government’s observations.


ITEMID: 001-94640
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF PUCHALSKA v. POLAND
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial
JUDGES: David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nicolas Bratza;Päivi Hirvelä
TEXT: 5. The applicant was born in 1953 and lives in Sandomierz.
6. In 1974 the applicant's parents agreed to the expropriation of their property in Sandomierz for the purpose of building a pedestrian access and a driveway to a clinic.
7. On 21 September 1990 the applicant and her parents lodged an application for restitution of the expropriated land with the Sandomierz Municipality (Urząd Miejski) under section 69 of the Law of 29 April 1985 on Land Administration and Expropriation (Ustawa o gospodarce gruntami i wywłaszczaniu nieruchomości). This section stipulated that the former owner of the expropriated property (or his legal successor) could lodge an application for restitution provided that the property no longer served the purpose specified in the expropriation decision. According to the applicant, their application was left unanswered.
8. Subsequently, the applicant's parents transferred their claim to the property to the applicant.
9. On 17 November 1992 the applicant and her parents made another application for restitution of the property.
10. On 15 March 1993 the head of the Sandomierz District Office (Kierownik Urzędu Rejonowego) refused the application.
11. The applicant appealed.
12. On 7 June 1993 the Tarnobrzeg Governor (Wojewoda) upheld the firstinstance decision.
13. The applicant appealed to the Supreme Administrative Court (Naczelny Sąd Administracyjny).
14. On 14 June 1994 the Supreme Administrative Court quashed both decisions.
15. On 14 March 1995 the applicant complained of inactivity on the part of the administrative authorities.
16. On 21 April 1995 the Tarnobrzeg Governor explained that the case was particularly complex and acknowledged that the proceedings had indeed been lengthy. He also ordered the head of the Sandomierz District Office to give a decision by 20 May 1995.
17. On 18 May 1995 the head of the Sandomierz District Office gave a decision and ordered the restitution of the property. He also ordered the applicant to pay the Sandomierz Municipality the indexed sum of 81,931 Polish zlotys (PLN) in return for the compensation awarded to her parents in 1974.
18. The applicant appealed, arguing that the indexed sum had been wrongly calculated and did not reflect the real value of the property.
19. On 20 September 1995 the applicant complained to the Supreme Administrative Court about the inactivity of the administrative authority.
20. On 30 November 1995 the Tarnobrzeg Governor quashed the challenged decision and ordered that the property be returned to the applicant for a payment of PLN 49,338.
21. The applicant and the Sandomierz Municipality lodged appeals with the Supreme Administrative Court.
22. On 27 June 1996 the Supreme Administrative Court declared the challenged decision null and void.
23. On 14 July 1996 the Supreme Administrative Court examined the applicant's complaint of 20 September 1995 about the inactivity of the administrative authorities and discontinued the proceedings, finding that a decision had already been given by the relevant authority.
24. On 12 February 1997 the Tarnobrzeg Governor quashed the decision of the head of the Sandomierz District Office of 18 May 1995.
25. On 30 June 1997 the head of the Sandomierz District Office gave a decision and ordered that part of the property, which had not been developed, be returned to the applicant.
26. Both parties lodged appeals: the applicant on 18 July 1997 and the Sandomierz Municipality on 15 July 1997.
27. On 9 August 1997 the Tarnobrzeg Governor upheld the challenged decision.
28. On 30 August 1997 the applicant again appealed to the Supreme Administrative Court.
29. On 7 May 1998 the Supreme Administrative Court quashed the firstand second-instance decisions.
30. On 31 May 2000 the Mayor of the Sandomierz District (Starosta Powiatu) gave a decision and ordered the restitution of the property.
31. On 30 June 2000 the applicant lodged an appeal, contending that the Mayor's decision had been based on an incorrect measuring of the buildings constructed on the property in question.
32. On 27 June 2000 the Sandomierz Municipality (Zarząd Gminy) also appealed against that decision, maintaining that the restitution of the property together with the buildings on it was impossible. It requested that the decision be quashed.
33. On 28 September 2000 the Świętokrzyski Governor, who took over the competences of the Tarnobrzeg Governor, amended the first-instance decision in the part which concerned the indexed sum to be paid by the applicant.
34. On 27 October 2000 the Sandomierz Municipality lodged a complaint with the Supreme Administrative Court.
35. Subsequently, owing to the reform of the administrative courts which took effect on 1 January 2003, the case was transmitted to the Kraków Regional Administrative Court (Wojewódzki Sąd Administracyjny).
36. On 30 April 2004 the applicant's father died.
37. On 8 October 2004 the Sandomierz Municipality applied to the Regional Administrative Court for the proceedings to be stayed.
38. On 20 October 2004 the proceedings were stayed.
39. On 30 May 2005 the Regional Administrative Court resumed the proceedings.
40. On 28 September 2005 the Kraków Regional Administrative Court gave judgment and dismissed the appeal.
41. On 30 January 2006 the Sandomierz Municipality lodged a cassation appeal with the Supreme Administrative Court.
42. On 13 March 2007 the Supreme Administrative Court dismissed the cassation appeal.
43. The relevant domestic law concerning inactivity on the part of administrative authorities is set out in the Court's judgment in the case of Grabiński v. Poland, no. 43702/02, §§ 60-65, 17 October 2006.
VIOLATED_ARTICLES: 6


ITEMID: 001-58081
LANGUAGEISOCODE: ENG
RESPONDENT: PRT
BRANCH: CHAMBER
DATE: 1996
DOCNAME: CASE OF SILVA ROCHA v. PORTUGAL
IMPORTANCE: 3
CONCLUSION: No violation of Art. 5-4
JUDGES: C. Russo;N. Valticos
TEXT: 7. Mr Serafim da Silva Rocha, who is a Portuguese national, lives at Rio Tinto (Oporto).
8. On 21 July 1989, after a dispute with a neighbour following which the latter died, the applicant was remanded in custody.
9. In his submissions of 9 March 1990, the public prosecutor expressed the view that the applicant had acted voluntarily and consciously. Finding that the facts gave rise to the offences of aggravated homicide and illegal possession of weapons, he called for the applicant's continued detention and his committal for trial.
10. On 13 July 1990 the Oporto Criminal Court (tribunal criminal da comarca do Porto) held that, on account of his mentally disturbed state, the applicant was not criminally responsible and was dangerous. It accordingly ordered that he be detained for a minimum of three years. It stated as follows: "The established facts in respect of which the accused is charged constitute the offences of intentional homicide and unlawful possession of weapons. However, in the light of the expert report, ..., as confirmed by the medical expert at the hearing, the accused is not criminally responsible [inimputável] on account of his mental disorder [anomalia psiquica]. In view of the seriousness of the offences and the mental illness from which he is suffering, the court finds that he is a dangerous person who cannot be held responsible for his actions and, given the risk of his reoffending, a security measure [medida de segurança] must be taken against him. Having regard to Articles 20 and 91 of the Criminal Code, the court finds that the accused Serafim da Silva Rocha is a dangerous person who cannot be held responsible for his actions and orders his detention in a psychiatric asylum. This security measure will remain in force, in accordance with Article 91 para. 2 of the Criminal Code, for a minimum period of three years." The applicant maintains that he instructed his lawyer to appeal against this judgment, but no appeal was filed.
11. On 20 September 1990 the applicant was transferred to the annex for the criminally insane of the Sobral Cid psychiatric hospital.
12. On 29 October 1990 the Coimbra Sentence Supervision Court decided that the applicant's detention should be deemed to have begun on 21 July 1989, when he was first remanded in custody, and that the procedure for the automatic review of that detention should commence on 21 March 1992. The same day it assigned a lawyer to act for the applicant as he had not designated one. It appointed another lawyer on 21 March 1992.
13. On 29 June 1992, on the basis of a medical report of 14 May 1992 and the opinion of the social services of 5 June 1992, the first of which concluded that the applicant remained dangerous and the second that he lacked a family structure that might assist his social reintegration, the court extended the detention for a period of nine months.
14. On 11 February 1993 the applicant submitted an application for conditional discharge. At a date that has not been specified the court dismissed this application on the ground that "the defendant's discharge may be ordered only on a trial basis and not conditionally".
15. On 19 March 1993 the court made enquiries about the applicant's state of health and the prospects for his reintegration in society. The medical report drawn up on 13 April 1993 noted that, although the detainee was no longer dangerous in a hospital environment, there were some signs that he would still be dangerous if released into the outside world. This information was passed on to Mr Silva Rocha's officially assigned lawyer, who did not respond.
16. On 3 May 1993 the court heard from senior officials of the hospital and decided to extend the detention for a period of two months to see how the applicant's state of health evolved.
17. At the court's request the psychiatric hospital submitted on 17 September 1993 a report expressing the view that there had been a general improvement in the applicant's state of health, that he had ceased to be dangerous and that the conditions now existed for his successful reintegration into society.
18. Having heard the applicant, his officially appointed lawyer and the public prosecutor, the court decided, on 9 February 1994, to order that he be discharged on a trial basis (libertação a título de ensaio) subject to a number of conditions including a compulsory residence order, the obligation to undergo prescribed medical treatment, a prohibition on the consumption of alcohol and his agreement to submit to supervision by the social reintegration service. The applicant left hospital on 8 March 1994 and since then has remained at liberty on a trial basis.
19. The relevant provisions of the Criminal Code are as follows:
Article 20 para. 1 "Persons suffering from a mental disorder who are incapable at the material time of appreciating the unlawful nature or the consequences of their actions shall not be held criminally responsible for those actions."
Article 91 "1. A person who commits a punishable offence and who is found not to be criminally responsible within the meaning of Article 20 shall be ordered to be detained in an asylum, hospital or secure unit, if there is reason to believe, in view of his mental illness and the nature and seriousness of his offence, that he may commit further serious offences. 2. Where a person found not to be criminally responsible has committed homicide, grievous bodily harm [ofensas corporais graves] or other violent crimes punishable by more than three years' imprisonment and there is reason to believe that he will commit further similar offences of the same degree of seriousness, he shall be ordered to be detained for a minimum period of three years."
As amended by Legislative Decree no. 48/95 of 15 March 1995, paragraph 2 now reads:
"Where the offence committed by a person found not to be criminally responsible is an offence against the person or a crime punishable by more than five years' imprisonment, he shall be ordered to be detained for a minimum period of three years, save where his release is not incompatible with the protection of the legal system and public order."
Article 92 "1. Detention shall cease when the court finds that the justification for the detention no longer exists because the detainee is no longer criminally dangerous. 2. A first detention shall not exceed by more than four years the maximum sentence prescribed for the type of offence committed by the person found not to be criminally responsible ..."
The above-mentioned Legislative Decree no. 48/95 added a third paragraph to this Article, worded as follows:
"Where the offence committed by the person found not to be criminally responsible is punishable by more than eight years' imprisonment and the danger that he will commit similar offences is so serious that his release is considered inadvisable, his detention may be extended for successive periods of two years until it has been established that the situation referred to in paragraph 1 exists."
Article 93 "1. The court may at any time hear an application invoking a ground for the cessation of the detention measure. 2. The court shall, of its own motion, regardless of whether any application has been made, review the detention three years after it began and two years after the decision extending it. 3. These provisions shall apply, in any event, subject to the minimum period of detention stipulated in Article 91 para. 2."
As amended by Decree no. 48/95, paragraphs 1 and 2 now provide:
"1. The court shall at any time hear an application invoking a ground for the cessation of the detention measure. 2. The court shall, of its own motion, regardless of whether any application has been made, review the detention two years after it began or after the decision extending it."
Article 94 para. 1 "On the expiry of the minimum period of detention the person found not to be criminally responsible may be discharged on a trial basis for a minimum period of two years where there are serious reasons for believing that he will not commit any further illegal acts."
NON_VIOLATED_ARTICLES: 5
NON_VIOLATED_PARAGRAPHS: 5-4


ITEMID: 001-102348
LANGUAGEISOCODE: ENG
RESPONDENT: BGR
BRANCH: ADMISSIBILITY
DATE: 2010
DOCNAME: DEYANOV v. BULGARIA (III)
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva
TEXT: The applicant, Mr Todor Stanislavov Deyanov, is a Bulgarian national who was born in 1956 and lives in Sofia.
On 8 May 2006 the applicant requested that the Supreme Administrative Court of Bulgaria initiate proceedings before the Constitutional Court and seek a ruling as to the constitutionality of section 140(1)(20) of the Ministry of the Interior Act 2006 (see “Relevant domestic law” below), in so far as it concerned non-profit organisations. He argued that that provision encroached upon the right to freedom of association guaranteed by the Constitution and international law.
On the same day the applicant forwarded identical requests to the Supreme Court of Cassation and the Chief Public Prosecutor. On 17 May 2006 he forwarded an identical request to the Ombudsman.
By letter dated 15 May 2006 the President of the Supreme Court of Cassation informed the applicant that the action requested was not within his powers. The Ombudsman replied on 16 January 2007, informing the applicant that he did not consider section 140(1)(20) of the Ministry of the Interior Act to be unconstitutional. The Chief Public Prosecutor replied on 15 February 2007, also considering that the disputed provision did not contravene the Constitution.
On 14 and 28 February 2007 the applicant lodged new requests with the Ombudsman and the Chief Public Prosecutor to initiate proceedings before the Constitutional Court. He reiterated his position that section 140(1)(20) of the Ministry of the Interior Act impinged upon the right to freedom of association. In addition, he challenged section 5 of the same Act, in so far as it provided that the police “represented society as a whole”. He received no reply.
On 8 October 2007 the applicant wrote directly to the Constitutional Court, requesting that it initiate proceedings and examine the constitutionality of the two above-mentioned provisions of the Ministry of the Interior Act. This request was refused, as Article 150 paragraph 1 of the Bulgarian Constitution does not entitle citizens to lodge constitutional complaints. The applicant was informed of the refusal on 10 October 2007.
The Ministry of the Interior Act 2006 came into force on 1 May 2006.
Its section 5, as enacted, provided that in the performance of their duties the officials of the Ministry of the Interior were to “represent society as a whole”. In August 2008 the text of section 5 was amended and this phrase was repealed.
Section 140(1) of the Act provides that police operations can be carried out through:
“...
20. [S]etting up and using non-profit organisations or companies, subject to the conditions set out in law, to cover up the investigation by an undercover agent or to conduct undercover operations ...”.
The formation, registration and activities of non-profit organisations are governed by the Non-Profit Legal Persons Act 2000. Its section 2 provides that those organisations are free to define the goals they wish to pursue, which are to be stated in their articles of association.
Article 150 paragraphs 1 and 3 of the Constitution authorises certain State bodies, including the Supreme Administrative Court, the Supreme Court of Cassation, the Chief Public Prosecutor and the Ombudsman to initiate proceedings before the Constitutional Court in order to obtain a ruling as to the constitutionality of statutes adopted by Parliament. Citizens do not have the right to lodge a constitutional complaint.