ITEMID: 001-59608
LANGUAGEISOCODE: ENG
RESPONDENT: LTU
BRANCH: CHAMBER
DATE: 2001
DOCNAME: CASE OF VALASINAS v. LITHUANIA
IMPORTANCE: 1
CONCLUSION: Violation of Art. 3 with regard to body search;No violation of Art. 3 with regard to other complaints;Violation of Art. 8;No violation of Art. 34;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings
JUDGES: Nicolas Bratza
TEXT: 7. The applicant is a Lithuanian national, born in 1974.
8. From 5 October 1993 the applicant served a sentence of nine years’ imprisonment for the theft, possession and sale of firearms. On an unspecified date in early April 1998 he was transferred from Lukiškės Prison to Pravieniškės Prison (Pravieniškių 2-oji sustiprintojo režimo pataisos darbų kolonija).
9. From the moment when the applicant arrived in Pravieniškės Prison he was placed in the separate segregation unit of the prison (Sunkiai auklėjamųjų būrys – “the SAB”), located in Wing 5 of the prison (V lokalinis sektorius). On 30 June 1998 the applicant was released from the SAB and detained under normal conditions in Section 13 and later in Section 21 (13 ir 21 brigados), located in Wing 1 of the prison (I lokalinis sektorius). From 5 to 20 January 1999 the applicant was detained in solitary confinement (Baudos izoliatorius). He was again placed in the SAB on 20 January 1999. The applicant stayed in Pravieniškės Prison until his release on 14 April 2000 following a presidential pardon.
10. The present case concerns the conditions of the applicant’s detention in Pravieniškės Prison and his treatment there from April 1998 until April 2000.
11. The evidence of the applicant was taken by the Court delegates in Vilnius on 25 May 2000 and then in Pravieniškės on 26 May 2000. The applicant’s statements may be summarised as follows.
12. The unit consisted of a dormitory where twenty-two inmates were held, a small kitchen, a relaxation room and a shower cubicle. In the applicant’s view, only six to eight persons could be held in the SAB, and it was accordingly seriously overcrowded. Only the dormitory had windows. There were no windows or ventilation in the kitchen and the relaxation room. A window was installed in the kitchen during renovations in 1999.
13. The SAB had a corridor leading to the small courtyard outside. The yard was closed off above with wire netting, which was covered with snow in the wintertime. As a result there was a lack of light in the courtyard during the winter.
14. The toilets consisted of eight Asian-type “squat” holes, which lacked partitions. Inmates in the SAB used the toilets one by one in order to respect each other’s privacy. There were no windows, and a ventilation system was installed in the toilets only after renovations in late 1999. As a result the toilets smelled terribly.
15. There was no access to the prison laundry for washing private clothes; it therefore had to be done by hand in bowls in the shower. Drying such items in the small courtyard was complicated. In addition, no private bedding was allowed. Every inmate received from the prison administration bed linen and towels, which were regularly washed in the prison laundry.
16. The administrative officers visited the SAB only during the distribution of meals and check-ups. The prison governor used to visit the unit from time to time. Doctors went to the SAB very rarely. The only way of communicating with the outside world was by telephone. On 11 June 1998 the applicant felt that he had a fever. His condition was so serious that he missed the regular check-ups at the SAB and lay in bed. He asked the guards to send for a doctor. He also used the special telephone line connecting the SAB to the prison medical service. However, no one answered, as it was lunchtime. The applicant did not telephone the medical service again. Instead, he orally asked the SAB guards for a doctor several times a day. The medical staff only arrived on 16 June 1998 and confirmed that he had caught a cold. He was told to stay in bed.
17. No work, recreation or other meaningful activities were organised in the unit. The only reasonable activity permitted in the SAB was playing chess. The applicant conceded that there were no restrictions on watching television, reading or listening to the radio.
18. The applicant was detained in Sections 13 and 21 located in Wing 1 of the prison. Each of the five wings of the prison was intended to hold 300 prisoners. The prison was seriously overcrowded. There were approximately 400 detainees in Wing 1, which consisted of 12 sections – namely dormitories with adjacent toilet areas – where 20 to 30 prisoners were held. A total of 32 inmates were sleeping in Section 13 at the time of the applicant’s placement there. Section 21 accommodated 24 inmates. In the applicant’s view, a maximum of eight people could be held in Section 13 and six people in Section 21. The sections lacked air, especially at night, due to overcrowding. Two-tier bunk beds were installed in the dormitories and the windows were almost completely hidden by these beds, thus obstructing the flow of fresh air from the outside. During the day, prisoners were allowed to circulate freely within the wing and its outside stroll yard.
19. Sanitary conditions were deplorable. Toilets, sinks and shower facilities were infested with germs. There were various leaks and the water pipes were very old, rusty and covered with mould. The toilets in the sections consisted of several Asian-type “squat” holes with no partitions between them. Toilet paper was only provided sporadically. The applicant stated that it was very difficult to keep himself clean as he was only allowed to shower once a week on designated days. Showering on an unspecified day was penalised. Shower facilities only worked five days a week, and were always overcrowded. During the summer, hot water was only available at weekends. The applicant’s bedding was washed in the prison laundry. Private items such as clothes had to be washed by hand in a sink.
20. Food was served three times a day. Only 2.17 litai (LTL) per prisoner per day were allocated by the authorities for the catering in Pravieniškės Prison. The food was always cold, and there were no facilities to heat it. Vegetables were only added to a course once a week. Lunch was impossible to eat due to its awful taste at least three times a week. Overall, food was not prepared in a sanitary manner. At times the applicant had found wood shavings, little stones and pieces of metal in his food. Supplementary food could be provided by the prison canteen only when a special diet had been recommended by a doctor. As the prison canteen was not big enough for all prisoners, catering was organised in shifts. However, the number of inmates at each shift was always greater than the number of places in the canteen. A prisoner who arrived late would be left without food. There was a prison shop where detainees could obtain additional food. The applicant acknowledged that he regularly had a couple of hundred litai on his account in the prison shop. There was also a limited list of items that could be given by prisoners’ relatives during personal visits. The applicant was permitted to receive additional food from his relatives.
21. Qualified doctors only visited the prison occasionally. It was therefore impossible to have permanent, professional medical assistance at the prison infirmary. The infirmary lacked medication, especially painkillers. All illnesses were treated with aspirin and paracetamol. The applicant stated that he had a heart disease. He admitted, however, that he had not undergone an appropriate cardiology test at the infirmary. The applicant also alleged that he had a knee problem due to his huge overweight. The prison administration had not performed a knee operation due to a lack of facilities. The applicant acknowledged, however, that the knee operation was not a matter of primary urgency. Once out of prison, he had not sought a knee operation due to its high cost. The applicant further stated that he had had gastritis, but the prison doctors had refused to prescribe a better diet for him in the prison canteen.
22. Following an order of the Minister of the Interior, from August to November 1998, all prisoners were subjected to a “standing regime”. No prisoner was permitted to lie in bed from the wake-up call at 6.30 a.m. to lock-in at 10.30 p.m., that is sixteen hours a day. Exceptions to the order were permitted only upon recommendation by a doctor. The applicant complained that many detainees, himself in particular given his weight and heart problems, were unable to endure this regime. The prison doctors found, however, that the applicant was fit to comply with the order. Upon various complaints by the applicant and other prisoners, the Ombudsman recommended that the order be revoked. The applicant alleges that it was nevertheless maintained.
23. There was no work provided within the prison, and the number of meaningful activities was very limited. Weather permitting, it was possible to engage in open-air sports in the exercise yard; however, no such possibilities existed in winter. There were also few concerts or cinema shows. No retraining or educational programmes were organised in the prison.
24. The applicant had initially complained about an interference with his right to receive visits from his relatives. During the interview with the Court delegates he admitted, however, that he had been afforded sufficient opportunities to receive visits, particularly following an intervention by the Ombudsman further to a complaint on his part.
25. From 5 to 20 January 1999 the applicant was placed in a solitary confinement cell of approximately 6 sq. m where he was held with another person. There was an Asian-type toilet, a sink for washing, and a table in the middle of the room.
26. On 7 May 1998 the applicant had a personal visit when he was given some additional food. Afterwards he was stopped in the access zone for the usual security check to establish whether he had been given any illegal items. The chief guard, P., conducted the search, while two other officers looked on. P. told the applicant to take off his clothes. When the applicant was only in his underwear, a female prison officer, J., came into the room. P. then told the applicant to strip naked. The officer threatened him with a reprimand in case of non-compliance. The applicant submitted to the order, taking off his underwear, in the presence of Ms J. She was watching the check with the rest of the officers and was smoking. The applicant’s body, including his testicles, was examined by the male officers. The officers wore no gloves, touching the applicant’s sexual organs and then the food given to him by his relatives, without washing their hands. The applicant was also ordered to do sit-ups to establish whether he had concealed anything in his anus. No unauthorised item was found on him. He alleged that the purpose of the check had been to ridicule him in front of the woman.
27. According to the applicant, the lower-ranking prison staff were very poorly qualified, had an inferiority complex, and showed their authority in a degrading manner. The administration tolerated the constant consumption of alcohol by the prison staff during working hours. Many prisoners were allegedly employed as secret informers by the administration, in return for promises of parole or conditional release. The actions of the prison staff concerning the applicant were provocative. The applicant received daily abuse because of his firm opposition to and the criticism of the general policies of the penitentiary system in Lithuania, as well as his specific criticism of the conditions of detention at the prison. He gave the following examples of his alleged victimisation.
28. The applicant’s placement in the SAB in April 1998 had been arbitrary, as he had had no disciplinary record before that date. Following his release from the SAB on 30 June 1998, he was detained under the normal regime and even afforded better conditions of detention. On 20 August 1998 some prisoners established an association for their mutual assistance and support called Aim. The applicant was elected President of that association. On 24 August 1998 the administration imposed on the applicant a disciplinary penalty, depriving him of the better detention conditions. The official ground for that penalty, imposed on the basis of information given to the administration by a secret informer, was the fact that the applicant had beaten another prisoner. The applicant denied the beating, stating that he had been present at the incident without intervening. The applicant’s complaints to the Prison Department and the Ombudsman about the unlawfulness of the penalty were rejected as unsubstantiated.
29. On 10 October 1998 the applicant’s right to buy food at the prison shop was suspended for one month, and on 13 October 1998 he received a disciplinary warning for threatening other prisoners with force. The administration rejected his complaints against these penalties. His application against a staff member, Officer Kmieliauskas, who had allegedly initiated these penalties, was not examined.
30. On 15 October 1998 the applicant was penalised for leaving the territory of Wing 1. He was ordered to wash the windows of Section 21. The execution of this penalty was to be controlled by Officer Kmieliauskas. The applicant initially refused to wash the windows in the presence of the said member of staff and other prisoners, as this allegedly meant the manifest abuse of his right to complain about that member of staff. The applicant later washed the windows while not being observed. Officer Kmieliauskas refused to accept that the work had been done.
31. On 16 October 1998, as the prison governor was absent, Officer Kmieliauskas ordered the applicant’s solitary confinement. He was instantly conveyed to the solitary confinement cell in handcuffs. Within an hour, the prison governor returned to the prison. After hearing the applicant and certain prison officers, the prison governor decided that the applicant had not been in breach of duty on 15 October 1998 and the applicant was immediately released from solitary confinement.
32. In his written submissions to the Court, the applicant stated that on 23 October 1998 he had been warned for still being asleep at 6.40 a.m., this being ten minutes after the regulation wake-up call. During the meeting with the Court delegates he insisted that the officers had arrived and found him in his bed at 6.30 a.m. On 28 October 1998 he received a further disciplinary warning for queuing beyond the privacy line while waiting to call his relatives on the telephone.
33. In December 1998 “confidential sources” informed the applicant that one member of staff, B., was involved in criminal activities relating to the falsification of documents. On 28 December 1998 the applicant lodged a specific complaint against B. on behalf of Aim. The complaint was given to the administration in order to be transmitted to the Ombudsman. On 29 December 1998 a high-ranking member of the prison administration allegedly requested the applicant not to send the complaint, promising that B. would be dismissed, and that the applicant would be afforded better detention conditions. The applicant refused to do so and insisted on the onward transmission of the complaint. According to the applicant, B. was forced to leave the prison service as a result of the Ombudsman’s investigation. In December 1998 the applicant also filed with the Ombudsman a complaint against another staff member, P., for allegedly abusing his authority. The applicant claimed, in particular, that P. had deliberately provoked conflicts with the applicant and other prisoners. This complaint was dismissed as unsubstantiated.
34. On 21 December 1998 the applicant met the prison governor, who granted him permission to visit detainees in other wings to greet them for Christmas on behalf of Aim. According to the applicant’s written submissions to the Court the permission was oral, but he also stated during the meeting with the Court delegates that the permission had been posted in writing on the special information board. The permission was valid from 24 to 27 December 1998. On 24 December 1998 the applicant tried to go from Wing 1 to Wing 3. At a special check-point between these wings, the applicant was stopped by the guards and told that he did not have permission to enter Wing 3.
35. On 29 December 1998, as a disciplinary sanction for “trespassing” on 24 December, the applicant was ordered to clean up the area around his bed in Section 21. As the Interim Prison Rules did not require that cleaning be done in the presence of a member of staff, he performed the work unseen. The staff member, Officer Kmieliauskas, who was to supervise the work, did not accept that the job had been done.
36. As a result, on 5 January 1999 the applicant was punished with fifteen days’ solitary confinement. He immediately announced a hunger strike as he considered the sanction arbitrary. On 6 January 1999 the applicant wrote complaints to various State authorities and the media. On 8 January 1999 the applicant’s sister called the prison governor, who allegedly lied to her that the applicant was not on a hunger strike. On 9 January 1999 the biggest Lithuanian daily, Lietuvos Rytas, wrote an article on page 2, stating that the applicant was on a hunger strike. On the sixth day of the hunger strike, on 11 January 1999, a prosecutor arrived and advised the applicant to seek a compromise with the administration. On 13 January 1999 the applicant discontinued the hunger strike. On 15 January 1999 the prison governor gave an interview to a newspaper, Akistata, which was printed with the title “Stirring up trouble without reason”. In the interview the prison governor said that the applicant was “doing nothing [to conform to the prison regime] but lodging various complaints”. According to the applicant, the prison governor thereby expressed his biased attitude towards him.
37. On 21 January 1999 two disciplinary sanctions were imposed on the applicant for the unlawful hunger strike. His access to the prison shop and the right to be given additional food during personal visits were suspended. He was also transferred to the SAB.
38. The applicant considered that these penalties, taken as a whole, revealed the ineffectiveness of any internal efforts to review allegations of ill-treatment. His complaints about the disciplinary penalties against him were rejected by the Ombudsman with sole reference to the statements of the prison administration, without due regard to the actual circumstances. According to the applicant, his treatment in the prison was degrading because he had no access to an independent and impartial authority to complain about his conditions of detention.
39. There was no information about any effective review of the general treatment of prisoners or the specific treatment of the applicant because the Interim Prison Rules (Pataisos darbų įstaigų laikinosios taisyklės) had not been published. The Rules defined the legal basis for the prison regime and the administration’s actions. The absence of publicity of such an important legal document gave the administration the right to act arbitrarily. This document was lacking both at the Prison Department and in prisons. In the applicant’s view, every section of the prison should have had a copy of the Rules. However, only one copy of the Rules was in his prison.
40. The applicant stated that the first letter addressed to him from the European Commission of Human Rights, dated 18 June 1998, was shown to him when it had already been opened. He was only allowed to write down its contents, and had to give it back to the administration. Subsequent letters from the Convention organs were opened by the administration and given to the applicant some three days after their arrival at the prison.
41. On 7 December 1998 the prison governor wrote a letter to the Court, stating, inter alia:
“On 2 December 1998 the prison administration received a letter by [the applicant] addressed to [the Court]. Having acquainted myself with the contents of the letter ... I would like to set out certain considerations as to the facts alleged [therein] ...
It is true that pursuant to the order of 14 August 1998 of the Minister of the Interior ... it is prohibited for convicted persons to lie in bed save during the sleeping hours as specified in the schedule, if there is no special permission to do so from the administration ..., [but] it is not true that all convicted persons have been prevented from lying in bed during the day, as J. Valašinas says in the letter ... because elderly, handicapped [prisoners] have been afforded [that] opportunity ...
[The applicant] alleges that some wings in the prison accommodate more than 400 convicted persons in breach of Rule 2 § 11 of the Prison Rules requiring that ‘no more than 300 persons should be held in a wing’. [However,] there is no practical possibility to implement the above Rule in view of the rapid increase in the number of convicted persons (the limit is 1,830 [detainees], [but] on 3 December 1998 there were 2,109).
As regards the education of convicted persons ..., from 1 January 1999 the administration of the Kaunas County is prepared to set up an education point for adults in the prison ...
On 20 August 1998 [the applicant] founded an association of mutual assistance and support, ‘Aim’ ... We think that the establishment of this association is to be welcomed ... However, in practice, from the moment when it was set up, this association and its President, J. Valašinas, only defended the interests ... of the ‘authorities’ of the underworld ...”
42. In a letter to the Court dated 16 December 1998, the applicant’s sister complained that the applicant had told her by telephone on 15 December 1998 that he had been prohibited from pursuing correspondence with the Court, and that his letters to the Court dated 30 November and 3 December 1998 had not been sent by the prison administration.
43. On 18 December 1998 the administration sent to the Registry the applicant’s letters of 30 November, 3 December and 15 December 1998. They also included a transcript of the administration’s meeting of 15 December 1998 in which the question of the applicant’s correspondence with the Court was discussed. The acting governor of the prison said in the transcript that he
“explained to [the applicant] that he has to apply first to certain authorities of the Republic of Lithuania, that is: the Prisons Department, the Ministry of the Interior, the Ministry of Justice, the Ombudsman, the Office of the Prosecutor General and other institutions. [The applicant] is familiar with this procedure ... but he categorically required that his letter to [the Court] be sent ... [The applicant] asked me the question whether I had a right to have access to the contents of [his] letter ... I explained that I had such a right under Rule 7 § 1 (7) of the Interim Prison Rules [stating that] ‘the letters of convicted persons (except those to a prosecutor) that are sent or received are subject to censorship’. Given the categorical request by [the applicant], [his] complaint shall be sent to the addressee”.
44. On 1 March 1999 the Registry received one more letter from the applicant, sent on 15 February 1999. According to him, this letter was not sent through the prison administration. He enclosed therewith an original of the Registry’s letter of 14 January 1999 as evidence that the correspondence with the Court had been censored: on the Registry’s letter was a prison stamp with the date of receipt, 1 February 1999, a handwritten remark of the same date by the prison governor ordering that the applicant be acquainted with the letter, and the applicant’s written confirmation that he had had such access on 3 February 1999.
45. During the meeting with the Court delegates, the applicant also stated that in December 1998 he had handed to the prison administration a further letter to the Court dated 16 December 1998. No such letter reached the Court.
46. The witness was the prison governor at the time of the applicant’s detention there.
47. The witness admitted that there had been no partitions between the squat holes in the toilets until 1999. In that year renovations were carried out, during which each toilet hole was separated by cement partitions covered with ceramic tiles.
48. At the time of the applicant’s detention under the normal conditions in Wing 1, each prisoner was allocated 2.7 sq. m in the dormitory in Section 13, and 3.2 sq. m in the dormitory in Section 21. The Prison Code (Pataisos darbų kodeksas) required a minimum space of 2 sq. m in sleeping areas, while a special Ministry of Health sanitary norm of 1999 required at least 3 sq. m. The witness considered that the prison had not been seriously overcrowded at the time of the applicant’s detention, at least within the meaning of the domestic requirements valid until 1999. The situation improved following an Amnesty Act in 2000; while the total occupancy of the prison was 2,303 detainees in 1999, only 1,782 prisoners were detained in May 2000, the lowest level in five years.
49. Prisoners were provided with bed linen, which was washed and dried in the prison laundry free of charge once every two weeks. Once a week inmates had access to the shower. Sinks in the shower facilities could also be used to wash personal items. Each prisoner was provided free of charge with 200 g of soap every month, and was able to buy more in the shop.
50. Inmates could buy various products, including food and items of personal hygiene, in the prison shop three times a month. Prices in the shop were not excessive, and were regularly reviewed by the administration in the light of regional price levels. While no cash was used in the prison shop, every inmate had an account to which resources from his family, his salary at the prison, or a financial benefit in the case of an orphan, were transferred. These accounts were debited upon a purchase at the shop.
51. The witness admitted that the canteen, which could normally accommodate about 500 prisoners at once, had been overcrowded at times. He denied, however, that any prisoner had missed a meal due to overcrowding. Five shifts were organised in the canteen to enable every prisoner to have three meals a day. The witness had never received a complaint from any prisoner that he had been deprived of a meal because of an overcrowded canteen. The witness had not heard of any complaint about the quality of the food. He said that the prison medical service checked the quality of the food every day and that the sanitary norms in the canteen were being met.
52. The witness had not received any complaint from the applicant about a lack of medical assistance in the prison. The witness also said that the prison doctor and the health authorities had confirmed that a knee operation had not been necessary during the applicant’s detention. The witness had never received a complaint from the applicant that he had been supplied with a food item incompatible with the sanitary norms. Nor had the applicant complained that he had lacked a special diet in the prison or needed supplementary food to be provided free of charge.
53. Previously, there were no partitions between the squat holes in the toilets; they were installed during the 1999 renovations. Currently all toilets were equipped with partitions. The witness said that a special government decree of 1995 required that all inmates be given toilet paper. However, the prison administration had budgetary difficulties in complying with this decree. Toilet paper had not been distributed during recent months. The prison lacked money even for the postal service. The witness considered that the lack of free toilet paper was not an essential problem in the prison, as he had heard no complaint in this connection from any prisoner. according to the witness, it had to be noted that toilet paper was always available in the prison shop at about LTL 0.50 to 0.60 per roll. In addition, toilet paper could be given by relatives. At worst, other kinds of paper could be used, such as newspapers, which were supplied to prisoners free of charge. The witness drew a parallel between toilet paper and other items of personal hygiene, such as toothpaste and toothbrushes. While such items were not distributed free of charge, prisoners could obtain them from their relatives or the prison shop.
54. The prison had a wood-processing factory, but only a small proportion of prisoners worked there due to the lack of commercial orders. However, a recent government contract would permit an increase in production and create more employment for detainees. A total of 115 prisoners also worked at the service department of the prison, including the laundry and the canteen. The applicant did not work during the time of his detention.
55. After a personal visit, a prisoner and any items he has received from his visitor must be checked in accordance with the Interim Prison Rules. Such a check could include stripping the prisoner naked. The Interim Prison Rules provide that only a person of the same sex may conduct a strip-search.
56. The witness said that he was not present at the time of the alleged event. He was informed about it by the applicant. The witness acknowledged that the female officer J. worked at the prison and supervised personal visits. Her functions included accompanying prisoners to and from the visitors’ area and handing the prisoner over to the male officers conducting the search. The Court was unable to interview Ms J. as she was not in the prison on the day of the delegation’s visit.
57. The three male officers who conducted the body search were interviewed by the witness immediately following the applicant’s complaint in May 1998. They denied that a woman had been present. No record of the applicant’s complaint or of any investigation of the incident was made.
58. The witness said that he did not know whether Ms J. took part in the search. If the applicant was stripped naked in the presence of a woman, it was a violation of the Interim Prison Rules. However, given Ms J.’s functions, the witness conceded that both theoretically and practically she could have attended the search.
59. The witness described the procedure for disciplinary offences established under the Interim Prison Rules. According to this system, Pravieniškės Prison had a Disciplinary Commission consisting of the prison governor, his deputies and the heads of sections. The commission was in charge of examining all alleged violations of prison discipline. When a particular incident occurred or specific information about such an incident reached the administration, a senior staff member such as a head of section wrote a report on the facts and stated his opinion as to whether those facts disclosed a breach by a detainee of the provisions of the Interim Prison Rules. The report was normally shown to the detainee, who had the right to submit observations. The detainee was informed about the contents of the report if it could not be presented to him, for example, where there were statements by anonymous witnesses concerning the incident. However, even in such exceptional cases, the prisoner had the right to know about such accusations without having access to the witnesses’ names.
The report and the detainee’s observations were sent to the Disciplinary Commission, which decided whether or not to impose a disciplinary penalty. It was an absolute requirement that the prisoner appeared in person before the commission prior to its reaching its decision. Witnesses who were detainees were not normally heard in person at the hearing, their evidence being included in the report in written form. However, any officer involved in the incident had to be heard in person by the commission, together with the alleged perpetrator.
60. It was possible to appeal against the commission’s decision. Where a report on the incident had been filed by a staff member no higher in rank than a deputy governor, the prison governor could quash the penalty. Where the report had been filed by the governor himself, the detainee could appeal to the director of the Prison Department. From there an appeal lay to the Minister of the Interior or the Ombudsman. Although the Ombudsman could not revoke the penalty, he could recommend that the prison authorities do so. In most cases the Ombudsman’s recommendations were followed. In general, prisoners were not prohibited from complaining to any authority concerning any aspect of their detention. However, the internal hierarchical procedure was the principal remedy for prisoners.
61. The procedure for complaints against staff members was similar to that for disciplinary offences. The witness was not aware of any specific complaint by the applicant against a staff member. He said however that, if the applicant had lodged any such complaint, it had been sent to the competent authority.
62. All detainees were familiar with the Interim Prison Rules, which established this procedure and set out other provisions pertaining to the regime in all Lithuanian prisons. A copy of the Rules and of the Prison Code was in the prison library. Every detainee had unlimited access to those documents. In addition, upon the arrival of a new prisoner, a head of section must inform him of the rules, which had to be confirmed by the detainee’s signature.
63. The witness hardly knew the applicant personally until August 1998. The applicant had had no disciplinary record during the period of his placement in the prison before that. The witness had participated in the foundation meeting of the Aim association in August 1998. He considered that the purposes of the association as stated in its statute, namely mutual assistance and support to defend prisoners’ rights and better conditions of detention, were to be welcomed. There had been no interference by the administration with the functioning of the association. However, according to the witness, after becoming the leader of Aim, the applicant forgot that he himself was a prisoner and that he had not only rights but also obligations. He ignored lawful orders from staff and on various occasions seriously breached prison discipline.
64. The witness confirmed that the applicant had received nine disciplinary punishments during his time at the prison, namely on 24 August, 10, 13, 15, 23 and 28 October, 29 December 1998, and 5 and 21 January 1999. As to the nature of these punishments, the witness stated that eight of them had been minor. The deprivation of better detention conditions on 24 August 1998 involved the temporary removal of the applicant’s entitlement to certain socio-economic benefits, such as the right to receive additional personal visits, to make purchases in the prison shop, or to receive parcels from relatives. The disciplinary warnings of 13, 23 and 28 October 1998 meant essentially remarks in the applicant’s prison file. The chores (budėjimas be eilės) imposed on 15 October and 29 December 1998 were insignificant cleaning jobs. These penalties were minor, as the applicant’s breaches of discipline had not been serious.
Only the penalty of 5 January 1999, namely the applicant’s solitary confinement, was to be considered serious, in the opinion of the witness. It was imposed for non-compliance with the legitimate order of a prison officer, namely the failure of the applicant on 29 December 1998 to wash the area around his bed. In any event, none of those penalties humiliated the applicant, in the view of the witness, but amounted to the normal enforcement of prison discipline.
65. The witness asserted that good reasons had been given for each of the punishments. In every case the prison management carefully assessed the facts about alleged disciplinary breaches by the applicant and properly weighed the evidence before them. The validity of the conclusions of the prison management was confirmed by the Ombudsman. The witness mentioned as an example the events of 16 October 1998, when it was not clear whether or not the applicant had personally performed the chore imposed on 15 October 1998. Regardless of the statements of Officer Kmieliauskas alleging that the applicant had not performed the task himself, the witness decided that the applicant should have the benefit of the doubt, and that there had been no breach of discipline. However, in another case, concerning the chore imposed on 29 December 1998, the overwhelming evidence suggested that the applicant had indeed breached discipline by ordering another detainee to perform his task. As a result the applicant was punished with solitary confinement.
66. The witness admitted that he had said that the applicant “was doing nothing but lodging complaints” in an interview published on 19 January 1999 in Akistata, a special newspaper on matters of crime, law and order. The witness did not consider that he had in any way humiliated the applicant by that statement. He said that he had no personal prejudice towards the applicant because of his activism amongst prisoners, his presidency of Aim, his complaint to the Convention organs, or any other reason. The sole basis for the measures restricting the applicant’s rights was his failure to comply with prison discipline, which was applied equally to all.
67. The witness said that the reasonable nature of the applicant’s treatment in the prison was reflected by the fact that he had expunged the applicant’s disciplinary record in 1999. Thereafter they had found a common ground and cooperated in organising various cultural events in the prison. Furthermore, in view of the applicant’s improved behaviour, the witness intervened on the applicant’s behalf to obtain a presidential pardon, which was eventually granted. Their cooperation continued after the applicant’s release, particularly regarding the organisation of cultural activities in the prison.
68. The witness acknowledged that until June 1999 the prison administration had checked the applicant’s letters to the Convention organs in accordance with the Prison Code and the Interim Prison Rules. The witness stated that he had never prevented the applicant from complaining to the Court. His remarks about the exhaustion of domestic remedies were made to explain to the applicant the relevant procedural requirements, but not to hinder his right to pursue his Convention application. All letters to the Court handed in by the applicant to the prison administration were sent, and all letters from the Convention organs were received by the applicant.
69. The witness was a staff member and a head of section.
70. The witness stated that the applicant belonged to the so-called élite of prisoners, and other inmates would normally perform jobs for him. This is why he did not think that the applicant had personally performed the chore imposed on 29 December 1998. The officer did not consider that the obligation to clean the area around his bed whilst supervised by the witness was degrading for the applicant. While the applicant had asked the witness in advance for permission to perform the task unsupervised, the applicant had not explained why he did not want to be observed or whether he considered the order degrading. The applicant’s request had clearly been an attempt to get others to do the job for him. Therefore the witness did not give his permission. The applicant’s subsequent refusal to perform the job in the presence of the witness amounted to a breach of duty.
71. On 26 May 2000 the delegates visited the prison. The prison held 1,782 people, a substantial reduction from the 2,303 prisoners held in 1999.
72. The delegates visited the SAB where twenty people were detained, whereas twenty-two had been detained when the applicant was there. The beds had metal frames and springs, standing on four legs about 30 cm high. The beds were side by side in a dormitory of 92.2 sq. m. There were televisions, a video-player, radios, personal effects and adequate bedding. Each prisoner was allocated approximately 5 sq. m of space in the dormitory. There did not seem to be a lack of space, light or air.
73. The delegates visited a separate sanitation area in a corridor between the dormitory and the leisure room. The sanitation area consisted of toilets and a shower. Prisoners could use the shower at any time between wake-up at 6.30 a.m. and lock-in at 10.30 p.m. The area had been tiled and partial partitions installed between the Asian-type toilets since the applicant’s detention there. The partitions were waist high, half walls, with no doors in front of them. In the applicant’s time there had just been the squat holes. There was no toilet paper in sight. The sanitation area was somewhat muddy but not unduly smelly. The delegates learnt that people were paid to do the cleaning, and that prisoners were asked to clean only as a disciplinary punishment.
74. Food was brought from the main prison into a small kitchen three times a day. There was a courtyard, approximately the same size as the dormitory, with grass, plants, outdoor tables and benches and some weight-lifting equipment. There was no limitation on prisoners’ access to the courtyard between 6.30 a.m. and 10.30 p.m. Prisoners did not wear a uniform. Most of them were in light tracksuits and T-shirts. Detainees were able to wash their own personal laundry in the sanitation area, and the delegates saw laundry being dried on clotheslines outside in the courtyard. Inmates could come and go as they liked within the whole SAB area, where there were also separate leisure and billiard rooms. Only the leisure room had no windows, but there was no lack of air. There were soft armchairs, a chessboard and an audio-system in the leisure room. Big heating radiators were seen in all the accommodation areas.
75. People could call the prison medical service directly from the SAB on a special telephone line. A doctor visited the SAB almost on a daily basis, and a sick person would be brought to the infirmary.
76. The applicant confirmed that the conditions of his detention in the SAB had been essentially the same, except that the accommodation area had since been freshly painted and better furnished, partitions had been installed in the toilets, and a kitchen window had been created.
77. The delegates then moved to the area of the normal regime in Wing 1, namely an apartment block with 775.2 sq. m of living space and an adjacent large strolling yard. There were twelve sections in the wing. Sections consisted of dormitories with adjacent toilet areas. At the time of the visit, 372 detainees were held in Wing 1, whereas there had been 400 inmates when the applicant was there.
78. Section 13 had a dormitory of 86.5 sq. m holding 32 beds; some were double bunk beds. The beds had metal frames and springs, standing on four legs about 30 cm high. Each prisoner had approximately 2.7 sq. m in the dormitory. The room had windows and did not lack light or air. Several prisoners were in the dormitory during the daytime as inmates were entitled to circulate freely throughout the whole building and yard from 6.30 a.m. until 10.30 p.m. There were four stools in the room. The delegates were told by a staff member that detainees were allowed to sit or lie on the beds during the day.
79. Section 21 had a dormitory of 55.3 sq. m holding 24 beds placed side by side. Each prisoner was allocated approximately 3.2 sq. m of space in the dormitory. There were two large windows but the applicant nevertheless complained about the lack of ventilation. The windows were open during the delegates’ visit, but the applicant said they remained shut in winter or if someone was ill.
80. The toilets in both sections were located in separate areas closed off from the dormitories. There were partitioned Asian-type holes, which did not seem to be in a bad or dirty condition. There was no particular smell or lack of air in the toilets. The applicant said that the walls had been painted since his time and partitions had been installed.
81. The general shower room allowed thirty prisoners to shower at the same time; this was not a renovated area. The installations were rusty and there was mould on the walls, but hot water was available and the area was generally functioning adequately. The room next to the showers had deep basins for prisoners to wash their own clothes. Prisoners were allowed access to the showers once a week.
82. The canteen consisted of two big rooms with seating arrangements for about 500 people. The food was prepared in large ovens and saucepans where huge quantities of soup (sometimes with meat), vegetables and porridge were cooked. The quantity per prisoner was controlled by the medical service, as was the level of hygiene. The general area seemed spotless apart from some dampness on the floor. Food was dished out in metal bowls for ten people and served through two hatches in the canteen.
83. The infirmary had several consultation rooms, a dentist’s chair and other equipment being in one of them. All the equipment seemed old-fashioned but functional. Since February 1999 there had been a doctor on duty twenty-four hours a day. The doctor on duty said that if someone had a fever he would get help from the infirmary.
84. The delegates next visited the solitary confinement cell in a separate building, where the applicant was detained from 5 to 20 January 1999. This consisted of a narrow room in which two people could be detained. During the day the beds are locked up against the wall like a couchette on a train. The cell had low benches and a cupboard. It also had a separate closed toilet and washbasin. The applicant said that during his placement there the walls had not been painted, there had been no cupboard, and the bedding was taken out of the cell in the daytime.
85. On 10 September 1998 the Ombudsman rejected as unsubstantiated the applicant’s complaint against the disciplinary penalty of 24 August 1998 depriving him of better conditions of detention. The Ombudsman noted that the applicant solely contested the facts of the incident leading to the penalty, arguing that he had not beaten up another prisoner. On the basis of written observations by the prison management, the statement of an anonymous witness and the applicant’s explanations, the Ombudsman established that the applicant had participated in the beating and that the administration had duly imposed the penalty.
86. On 19 January 1999, on the basis of written observations by the prison administration and the applicant, the Ombudsman rejected as unsubstantiated the applicant’s complaints against the penalties of 10 and 13 October 1998. The Ombudsman noted that the applicant solely contested the facts as established by the prison administration and had provided no plausible evidence to cast doubt on the validity of the conclusion that he had threatened other prisoners with force.
87. On 19 January 1999 the Ombudsman also dismissed as unfounded the applicant’s complaint about the penalty of 15 October 1998. On the basis of written observations by the prison administration and the applicant, the Ombudsman found that the applicant had trespassed into the territory of Wing 3 without permission. According to the Interim Prison Rules, a detainee must obtain the permission of the prison governor to visit other wings. Such a decision was valid only if it was published on the special information board. The applicant had not contested that he had had no permission to leave Wing 1 on that day or that he had not known of the relevant internal requirements prohibiting trespass. He was therefore justifiably ordered to perform a chore on that day.
88. On the same date the Ombudsman rejected as unsubstantiated the applicant’s complaints against the disciplinary warnings of 23 and 28 October 1998. The Ombudsman noted that the applicant solely contested the facts as established by the prison administration and had provided no plausible evidence to cast doubt on the validity of the conclusions that he had been sleeping after the regulatory wake-up call, or that he had been queuing beyond the privacy line.
89. On 19 January 1999 the Ombudsman also dismissed complaints by the applicant and another two prisoners, B. and P., against the penalties of 29 December 1998, imposing chores. By reference to written observations by the prison administration and the detainees’ comments, the Ombudsman established that the applicant, together with B. and P., all of whom were Wing 1 inmates, were stopped by guards when trespassing into the territory of Wing 3. The detainees claimed that they had oral permission from both the prison governor and other guards to go to Wing 3, and that the penalties had thus been arbitrary. The Ombudsman found that no valid permission had been given to these men, and that the penalties of 29 December 1998 had therefore been justified.
90. On 21 January 1999 the Ombudsman rejected complaints by the applicant and B. against the disciplinary penalties of 5 January 1999 ordering their solitary confinement for non-compliance with the duties imposed on 29 December 1998. By reference to written observations by the prison administration and the detainees’ comments, as well as the material collected on the spot by a representative of the Ombudsman’s office in January 1999, the Ombudsman established that the applicant and B. had been ordered to clean the areas around their own beds by Officer Kmieliauskas, in execution of the duties imposed on 29 December 1998. The Ombudsman held that the applicant and B., owing to their authority over other prisoners, could indeed have ordered other prisoners to clean up for them, thereby avoiding executing personally the penalties of 29 December 1998. According to the Ombudsman, it was therefore reasonable for Officer Kmieliauskas to want to supervise the task himself. Such supervision could not amount to an unjustified interference with their honour. The Ombudsman established that the detainees had refused to perform the job under the supervision of Officer Kmieliauskas and another staff member at around 10.50 a.m. on 29 December 1998. Some time later they informed Officer Kmieliauskas that they had nonetheless performed the task whilst alone. The Ombudsman held that both the refusal of the detainees to perform their duties, and their subsequent statements that they had performed the jobs in the absence of staff, testified to their non-compliance with the penalty of 29 December 1998. The Ombudsman concluded that the penalties of 5 January 1999 had therefore been justified.
91. On 21 January 1999 the Ombudsman examined the applicant’s complaints against two members of staff, on the basis of an on-the-spot investigation conducted by a representative of the Ombudsman’s office in January 1999. In his complaints the applicant alleged that one member of staff, B., did not know the Lithuanian language, did not have Lithuanian citizenship, and could not work at the prison. He also alleged that a staff member, P., had provoked conflicts between the applicant and other prisoners. The Ombudsman held that there were no grounds to examine the complaint in so far as it concerned B., who had meanwhile left the prison. The Ombudsman established no wrongdoing or intent to provoke conflicts on the part of P.; in this regard the Ombudsman held that the applicant’s complaints had been of a general nature, and that, during the meeting with the representative of the Ombudsman’s Office, the applicant had been unable to specify a single incident when P. had breached his rights.
92. According to the Prison Code, a prison is headed by a governor. The prison administration is responsible to the Prison Department. Until September 2000 the Prison Department was answerable to the Ministry of the Interior, but is now under the supervision of the Ministry of Justice.
93. According to Article 21 of the Constitution, no one may be subjected to torture or to inhuman or degrading treatment or punishment. Article 1 of the Prison Code provides that imprisonment is not intended to cause physical suffering or offend human dignity.
94. Article 41 of the Prison Code provides that “the correspondence of convicted persons shall be censored”.
95. Article 50 of the Prison Code entitles a prisoner to apply to any State authority with recommendations, applications and complaints regarding his conditions of detention. According to Article 70 § 9 of the Prison Code, a detainee can complain against a disciplinary penalty to a higher authority within the prison. The complaint does not affect the execution of the penalty. According to Article 71 of the Prison Code, the list of prison officials entitled to impose disciplinary penalties and their competence in relation to the establishment of breaches of the prison regime is to be set out in the Interim Prison Rules.
96. The Interim Prison Rules were adopted on 23 December 1992 by an order of the Minister of the Interior. The Rules govern all issues pertaining to the general conditions of detention and the disciplinary regime in Lithuanian prisons. The Rules were amended on a variety of occasions by way of ministerial orders. They were published in the Official Gazette for the first time in September 2000, following the transfer of responsibilities from the Ministry of the Interior to the Ministry of Justice.
97. Under section 1 of the Parliamentary Ombudsmen Act, the Ombudsman may examine individual complaints about wrongdoing or misuse of office by executive officials. Under section 14 of the Act, the Ombudsman may not examine allegations the investigation of which falls within the competence of courts. Under the terms of section 23(2) of the Act, the Ombudsman may not revise or revoke an executive decision or act. According to subsections (1) to (3) of section 23(1), the Ombudsman may only refer the results of his investigation to the prosecuting authorities for a criminal prosecution, or bring a court action, or recommend an appropriate course of action in connection with any wrongdoing established.
VIOLATED_ARTICLES: 3
8
NON_VIOLATED_ARTICLES: 3
34


ITEMID: 001-84322
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF GLUSEN v. GERMANY
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1
JUDGES: Javier Borrego Borrego;Karel Jungwiert;Margarita Tsatsa-Nikolovska;Mark Villiger;Peer Lorenzen;Renate Jaeger
TEXT: 4. The applicant was born in 1962 and lives in Hamelin.
5. In 1986 the applicant started to study food chemistry at the Braunschweig University. He obtained a certificate in mathematics in a re-examination in the second term. In his intermediate examination, accomplished in his 7th term of studies, he failed examinations in chemistry. A re-sit was scheduled for 12 October 1989.
6. On 11 October 1989 the applicant was attacked and robbed by two masked and armed men. He subsequently underwent psychological treatment for post-traumatic disorders.
7. On 19 December 1989 the applicant applied for compensation under the Victims Compensation Act (Opferentschädigungsgesetz, see “Relevant domestic law” below). On 8 August 1990 the Braunschweig Pension Office (Versorgungsamt) found that the applicant was suffering from “psychological reactive disturbances” (psychoreaktive Störungen) and that his earning capacity was reduced by 20% (Minderung der Erwerbsfähigkeit). It established that he did not qualify for a pension because the Victims Compensation Act only provided for a pension in cases where the earning capacity was reduced by at least 25%.
8. In September 1990, following his failure to pass a re-examination at the Braunschweig University, the applicant broke off his studies. He subsequently started and finished in July 1994 the study of food technology at the Lippe/Lemgo University of Applied Sciences.
9. On 11 April 1992 the applicant requested the withdrawal of the decision of 8 August 1990 and the recognition that his earning capacity was reduced by more than 20%. A medical report was issued by Dr S. on 1 July 1992.
10. On 21 November 1992 the applicant asked for the proceedings to be suspended until he started to work again. On 6 May 1993 the applicant’s representative requested a review of the decision of 8 August 1990.
11. On 4 February 1994 the Pension Office Medical Service submitted a medical opinion.
12. On 15 July 1994 the Hildesheim Pension Office rejected the applicant’s request.
13. On 25 July 1994 the applicant lodged an administrative appeal against the decision. On 9 May 1995 the applicant was informed that, in the light of a fresh report, the Pension Office intended to set aside the decision of 8 August 1990. On 26 June 1995 the applicant’s representative asked for the percentage as regards the reduction of earning capacity to be increased.
14. On 18 September 1995 the Hildesheim Pension Office quashed the order of 8 August 1990.
15. On 26 February 1996 the Lower Saxony Regional Pension Office (Landesversorgungsamt) rejected the applicant’s administrative appeal.
16. On 6 March 1996 the applicant filed an action with the Hanover Social Court against the order of the Regional Pension Office and the order of the Hildesheim Pension Office dated 18 September 1995.
17. Upon request by the Hanover Social Court two further medical statements were rendered by Dr H. and a Dr K. on 7 June 1996 and 22 August 1996 respectively. On 26 September 1996 the Social Court appointed another expert, Dr M., to provide a new medical report. On 18 January 1997 he submitted his report.
18. Between April and December 1997 three further neurological statements were delivered by Dr B. on behalf of the defendant Land.
19. In his written submissions of 4 April 1997 the applicant suggested that a new medical report should be prepared. On 18 December 1997 the court asked the applicant to submit possible further written statements by the end of January 1998 at the latest. It furthermore referred to Section 109 of the Social Courts Act (see “Relevant domestic law and practice” below). On 26 January 1998 the applicant asked for a medical report to be prepared pursuant to Section 109 of the Social Courts Act and moreover requested an extension of the time-limit for the naming of an expert. On 9 February 1998 he asked the court to designate Dr M. as expert. On 23 February 1998 the court appointed the expert. His medical report dated 28 May 1998 was received by the court on 10 June 1998. The expert found that the applicant was suffering not only from psychological reactive disturbances but also from a panic syndrome with agoraphobia and depressions.
20. Following further written pleadings by the applicant submitted to the court on 18 June and 12 August 1998 respectively and a further neurological statement rendered on September 1998 by Dr B. upon the defendant’s request, the Regional Pension Office acknowledged (Teilanerkenntnis) on 22 November 1998 that the applicant’s earning capacity had been reduced by 40% between October 1989 and March 1990 and by 30% between April 1990 and March 1991. This acknowledgement did not, however, fully satisfy the applicant’s claims and he did not withdraw his action as to the remainder.
21. Between January 1999 and October 1999 the parties submitted further written pleadings. Another neurological statement by Dr B. was submitted on 11 March 1999.
22. On 28 October 1999 the Hanover Social Court rejected the remainder of the applicant’s action. It found that on the basis of the extensive medical documentation a finding of a higher percentage as regards the reduction of earning capacity was not justified.
23. On 20 December 1999 the applicant lodged an appeal with the Lower Saxony Social Court of Appeal.
24. With regard to the partial acknowledgment of 22 November 1998 the competent authority issued on 7 January 2000 an implementing order to retrospectively pay the applicant a sum amounting to some 5,500 euros (EUR).
25. Following several written pleadings both issued by the applicant and the defendant in 2000, Dr H. issued another medical statement at the court’s request on 23 January 2001, received by the court on 27 March 2001. Dr B. submitted another neurological statement on 27 April 2001.
26. On 25 January 2002 the applicant’s lawyer requested the court to expedite the proceedings.
27. On 17 June 2002 the Social Court of Appeal appointed Dr M.W. to draw up a psychiatric expert report. The following day, on 18 June 2002, the applicant again requested to expedite the proceedings.
28. On 11 July 2002 the Federal Constitutional refused to admit the applicant’s complaint about the refusal of the Social Court of Appeal to decide upon his appeal. The decision was served to the applicant’s lawyer on 18 July 2002.
29. On 20 September 2002 Dr M.W. submitted the expert report. On 13 May 2003, upon the court’s request, she supplemented it. On 4 December 2002 and 21 August 2003 respectively Dr B. issued further neurological statements.
30. On 24 October 2003 the Social Court of Appeal appointed Dr P.-W. to draw up a further report opinion, which the court received on 27 May 2004. The expert found that the applicant was suffering not only from psychological reactive disturbances but also from a panic syndrome with agoraphobia and depressions and from chronic lumbago.
31. A hearing scheduled for 29 June 2004 was subsequently postponed; the reason for this is disputed between the parties.
32. On 27 August 2004 the defendant Land acknowledged the impairments to the applicant’s health as found by Dr P.-W. and assessed that his earning capacity was reduced overall by 40 % and by an additional 10 % as from 1 October 1989. The applicant accepted the acknowledgment on 6 October 2004 but upheld his claim as to the remainder.
33. Between November 2004 and May 2005 the applicant’s counsel and the defendant submitted several sets of pleadings to the court. On 13 December 2004 the applicant applied under Section 109 of the Social Courts Act for a further medical report to be prepared by a Dr W. Further written statements by the parties followed between January and May 2005.
34. With regard to the partial acknowledgment of 27 August 2004 the competent authority issued on 8 July 2005 an implementing order to retrospectively pay the applicant pension and related benefits plus interest amounting to some 46,000 EUR and a monthly pension of 218 EUR as from August 2005.
35. On 28 July 2005 the Social Court of Appeal appointed Dr W. as expert. His report of 30 December 2005 was received by the court on 24 January 2006.
36. On 25 January 2006 the Social Court of Appeal asked the applicant whether he wished to pursue his claim. By letter of 8 March 2006 the court was informed by the applicant’s counsel that he no longer acted for the applicant.
37. In his written submissions of 16 March and 4 April 2006 respectively, consisting of approx. fifty pages, the applicant challenged Dr W.’s report. Dr W.’s comments were received by the court on 12 October 2006. On 26 October 2006 the Social Court of Appeal asked the expert to supplement his submissions as regards the question whether the current impairment to the applicant’s health could be considered as a consequence of the attack in 1989 or as a result of the length of proceedings. In his reply of 11 December 2006, the expert stated that, in his opinion, the current problems could not be traced back to the length of proceedings, which was of only minor importance in the light of the applicant’s developing illness. He furthermore underlined that he considered the health problems to be wholly the consequence of the attack in 1989.
38. On 19 December 2006 the court held a hearing at which Dr P.-W. made a supplementary statement. On the same day the Lower Saxony Court of Appeal rejected the applicant’s appeal.
39. On 1 November 1995 the applicant requested the Hildesheim Pension Office to establish the degree of his disability (Grad der Behinderung) under the Disabled Persons Act (governed from 1 October 2001 by the Social Code IX) and to issue him a disabled persons’ pass (Behindertenausweis). On 15 March 1995 the Hildesheim Pension Office rejected his request, assessing the degree of disability at less than 20%.
40. On 24 March 1996 the applicant lodged an administrative appeal.
41. According to the Government the proceedings were apparently subsequently suspended to await the outcome of the proceedings under the Victims Compensation Act. The applicant agreed, and added that he had been informed by the Pension Office that the proceedings had been suspended for that reason. In a letter addressed to the Social Court of Appeal as regards the compensation proceedings, the applicant’s counsel informed the court on 26 June 2000 inter alia that the applicant was interested in a speedy decision on his appeal in the degree of disability proceedings.
42. On 27 October 2002 the applicant complained to the Federal Constitutional Court about the Pension Office’s inactivity. On 4 February 2003 the Registry of the Federal Constitutional Court informed him that his complaint would be recorded in the general register pursuant to Section 60 of the Rules of Procedure of the Federal Constitutional Court (Geschäftsordnung des Bundesverfassungsgerichts).
43. On 3 November 2003 the Lower Saxony Regional Pension Office rejected the applicant’s administrative appeal.
44. On 27 November 2003 the applicant filed an action with the Hanover Social Court.
45. The applicant was granted access to the files in January 2004. On 3 August 2004 the Social Court informed the parties of its intention to decide without a hearing and invited comments. On 6 September 2004 the applicant filed his statement of claim and claim for relief.
46. On 26 October 2004 the files of the proceedings under the Victims Compensation Act were transmitted to the court. On 3 November 2004 the Social Court informed the applicant that his claim lacked reasonable prospects of success.
47. On 2 February 2005 the Social Court again requested the applicant to comment on its intention to decide without a hearing. The applicant replied on 24 March 2005.
48. On 22 September 2005 the applicant informed the court that it was unclear whether the action was to be continued. On 8 November 2005 the applicant requested the court to pursue the proceedings.
49. Following a hearing on 10 February 2006 the Hanover Social Court rejected the applicant’s claim. It held that the degree of the applicant’s disability had already been ascertained in the compensation proceedings. As for alleged further damage to his health, the court assessed any additional disability at 10%, which was not sufficient to increase the total degree of disability.
50. On 19 April 2006 the applicant lodged an appeal with the Lower Saxony Social Court of Appeal.
51. On the applicant’s request, the Lower Saxony Social Court of Appeal suspended the proceedings on 28 July 2006.
52. The relevant part of Section 1 § 1 of the Victims Compensation Act reads as follows:
“(1) A person who, in the territory in which this Act is applicable ... has sustained personal injury attributable to a wilful and unlawful attack upon himself or another person or the lawful prevention thereof shall, on application, be granted benefits in accordance with the Federal Act on the Social Benefits for Victims of War in respect of resulting health impairments and financial loss. “
53. Section 88 of the Social Courts Act provides:
“(1) Where no decision has been made regarding an application for the performance of an administrative act within a reasonable time and without sufficient grounds, a court action shall be admissible six months after an application for the performance of the administrative act has been submitted. (...)
(2) The same applies where no decision on an administrative appeal was made, providing that a three-month time-limit shall apply as a reasonable time limit.”
54. Section 109 of the Social Courts Act reads as follows:
“(1) On application by the insured person, the disabled person, the person entitled to benefits or his surviving dependants, a physician to be determined shall be heard as an expert. The hearing in respect of this expert opinion may be made dependant on whether the applicant advances the costs and, unless the court decides otherwise, the applicant in the end bears the costs.
(2) The court may reject an application where its admission would delay the settlement of the legal dispute and the court is convinced that the application was submitted in attempt to delay proceedings or the application was not submitted earlier due to gross negligence.”
In view of the requirements of § 2 of this provision, national courts in practice rarely reject such a request.
55. Section 69 § 2 of the Social Code IX provides:
“(2) No assessment of the degree of disability shall be made where it has already been established that the applicant is disabled and the degree of the reduction of the earning capacity based on the disability has already been established in a pension payment order, a corresponding decision by an administrative authority or by a court, or preliminary documentary proof has been issued by a competent public authority unless the disabled person can substantiate an interest in a re-assessment in accordance with para. (1). An assessment in accordance with sentence 1 shall thereby also serve to determine the degree of disability.”
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-81120
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF OOO PTK `MERKURIY` v. RUSSIA
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6-1;Violation of P1-1;Pecuniary damage - financial award;Pecuniary damage - claim dismissed;Non-pecuniary damage - claim dismissed
JUDGES: Christos Rozakis
TEXT: 5. On 12 October 2000 the applicant company's premises were expropriated and demolished. The applicant company sued the Khabarovsk Town Council for compensation for the expropriated property. On 3 May 2001 the Commercial Court of the Khabarovsk Region allowed the claim and awarded it 5,335,963 Russian roubles (RUR, approximately 208,000 euros) against the Khabarovsk Town Council.
6. On 11 April 2003 the Appellate Division of the Commercial Court of the Khabarovsk Region upheld the judgment on appeal. The judgment became enforceable.
7. On 22 May 2003 the bailiffs' service opened enforcement proceedings. They were subsequently stayed at the debtor's request until 21 June 2003.
8. On 29 July 2003 the Federal Commercial Court of the Far-Eastern Circuit upheld the judgment of 3 May 2001 in the final instance.
9. On 8 September 2003 the Commercial Court of the Khabarovsk Region stayed the enforcement proceedings until 23 September 2003.
10. On 23 September 2003 the Khabarovsk Town Council challenged before a court the bailiff's order to write the debt off its bank account. It also asked the court to stay the enforcement proceedings pending examination of the complaint. On 25 September 2003 the Commercial Court of the Khabarovsk Region granted the request for a stay of the enforcement proceedings.
11. On 17 December 2003 the Appellate Division of the Commercial Court of the Khabarovsk Region held in the final instance that the bailiff's order had been lawful. On 31 December 2003 the enforcement proceedings were resumed.
12. On an unspecified date the applicant company received RUR 260,000.
13. The Khabarovsk Town Council, for a third time, applied to a court for a stay of the enforcement proceedings because it had no available funds. On 23 August 2004 the Commercial Court of the Khabarovsk Region allowed the Council's request and ordered a stay of the enforcement proceedings until 31 December 2004.
14. On 17 January 2005 the applicant company and the Khabarovsk Town Council concluded a remission-of-debt agreement. The Town Council undertook to pay the applicant company RUR 4,000,000 by 20 January 2005. The applicant company agreed to make a charitable contribution of the outstanding amount of RUR 1,075,963 for the purposes of town development. The agreement continued as follows:
“[The applicant company] undertakes to withdraw and not to resubmit the writ of execution no. 0009949, issued pursuant to the judgment [of 3 May 2001], and renounces all other pecuniary claims against the Khabarovsk Town Council relating to the demolition of [the applicant company's premises] and to the circumstances established by the above court judgment.”
15. On 19 January 2005 the applicant company received RUR 4,000,000.
16. On 26 January 2005 the applicant company withdrew the writ of execution. On 8 February 2005 the bailiffs discontinued the enforcement proceedings because the judgment of 3 May 2001 had been fully enforced.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-23392
LANGUAGEISOCODE: ENG
RESPONDENT: HUN
BRANCH: ADMISSIBILITY
DATE: 2003
DOCNAME: NAGY v. HUNGARY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Gaukur Jörundsson
TEXT: The applicant, a national of Hungary and the United States, was born in 1943 and lives in Los Angeles, California. The respondent Government are represented by Mr L. Höltzl, Agent. The facts of the case, as submitted by the parties, may be summarised as follows.
In 1991 criminal proceedings on charges of fraud and other offences were initiated against the applicant and five other suspects. On 3 December 1991 the applicant was arrested. On 6 December 1991 the Pest Central District Court ordered his detention on remand. This decision was upheld on appeal.
After extensions of his detention on 2 January, 3 March, 2 June, 22 July and 30 October 1992, the applicant was released on 6 January 1993. He alleges that between that date and 18 April 1998 he stayed at his mother’s home in Csömör, Hungary.
On 12 March 1993 the case-file was transferred to the public prosecutor’s office.
On 27 December 1993 a bill of indictment was preferred in the case. The applicant was charged with the offences of fraud and forgery and manipulation of documents.
On 25 January 1994 the Pest Central District Court’s mail to the applicant, which included the bill of indictment, was returned as the addressee was unknown.
On 26 February 1994 the Budapest VI/VII District Police Department confirmed that the applicant could not be located at his last known address.
Having received information about the applicant’s last address before his emigration to the United States, in August 1994 the District Court unsuccessfully attempted to serve the bill of indictment on him at that address.
On 4 January 1995 the U.S. Embassy in Budapest issued a passport to the applicant. According to the stamps in this passport, during the period until April 1998 the applicant travelled to and from Hungary on numerous occasions.
On 14 March 1995 the Budapest Police Department informed the District Court that the search for the applicant had been unsuccessful. On 31 March 1995 an arrest warrant was issued.
A hearing was held on 27 June 1995. Observing that some defendants had absconded, the District Court suspended the proceedings. Subsequently, the case was transferred to the Budapest II/III District Court.
On 8 September 1997 the applicant lodged an application for a passport with the Passport Office in Hungary. On 4 November 1997 the Passport Office refused to renew his Hungarian passport on account of the criminal proceedings pending against him. On 2 February 1998 the Minister of the Interior dismissed his administrative appeal.
Subsequently, the District Court was informed of these administrative proceedings. Using the address indicated by the applicant in his passport application, the court again attempted to serve the bill of indictment on him, but without success. In response to the court’s request, the competent Gödöllő Police Department found out about the applicant’s address in Csömör on 12 June 1998.
Meanwhile, apparently on 18 April 1998, the applicant left Hungary and returned to the United States where he has remained ever since.
On 22 June 1998 a summons to a hearing scheduled for 7 June 1998 was served on the applicant’s wife. At the hearing, however, neither the applicant nor his formerly authorised legal counsel showed up. On 21 July 1998 the counsel informed the District Court that he was no longer representing the applicant. The court’s renewed summons could not be served on the applicant as he was not available at his last known address.
The next hearing was held on 21 October 1998.
The applicant’s whereabouts remained unknown until March 1999 when he wrote to the Ministry of Justice from Los Angeles. On 26 March 1999 the District Court again issued an arrest warrant. Its further attempts to summon the applicant using his last known addresses in Hungary and Los Angeles remained unsuccessful.
Another hearing took place on 15 July 1999. On this occasion, the court considered the possibility of seeking the applicant’s extradition.
On 15 November 1999 the District Court again suspended the proceedings, having regard to the fact that the applicant and other defendants had absconded.
On 13 March 2000 the District Court resumed the proceedings. It held a hearing on that day and another hearing on 10 April 2000. On the latter date, it issued an order discontinuing the criminal proceedings against the applicant on the ground that the charges had become time-barred on 31 March 2000.
According to section 35 § 2 of the Code of Criminal Procedure, as in force in the relevant period, a period of suspension is included in the prescription period if the proceedings are suspended because the perpetrator’s whereabouts are unknown.


ITEMID: 001-88897
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF TARIMCI v. TURKEY
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial
JUDGES: Antonella Mularoni;Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria
TEXT: 4. The applicant was born in 1941 and lives in Antalya.
5. The applicant owns a flat in Antalya. Based on a construction permit issued by the Antalya Municipality on 14 February 1991, construction works were commenced on neighbouring land to build an apartment block. The limitations concerning the height of the building were not respected and, as a result, the sea view from the applicant’s flat, which is situated on the sixth floor, was blocked by the new building.
6. On an unspecified date, the applicant initiated administrative proceedings against the Antalya Municipality for the annulment of the construction permit. He maintained that the permit was in breach of city planning regulations. On 27 June 1995 the Antalya Administrative Court found in the applicant’s favour and annulled the construction permit. On 13 March 1996 the Supreme Administrative Court upheld the decision of the Antalya Administrative Court.
7. The applicant asked the Antalya Municipality to enforce the decision of the Antalya Administrative Court, but his request was rejected.
8. On 18 October 1998 the applicant initiated compensation proceedings before the Antalya Administrative Court on account of the Municipality’s failure to implement the court order of 13 March 1996. He requested both pecuniary and non-pecuniary compensation, stating that the non-enforcement of the final court decision which had annulled the construction permit had diminished his flat’s value.
9. On 19 November 1998 the Antalya Administrative Court partially upheld the applicant’s claim, awarding him pecuniary compensation, but refusing non-pecuniary damages.
10. On 26 April 2000 the Supreme Administrative Court upheld the Antalya Administrative Court’s decision in respect of pecuniary damage. However, finding that the applicant was also entitled to non-pecuniary compensation, it quashed the judgment in this respect. Subsequent to this decision, the Municipality paid the pecuniary compensation to the applicant.
11. On 1 November 2000 the Antalya Administrative Court awarded 250,000,000 Turkish liras (TRL) to the applicant in respect of non-pecuniary damage.
12. On 16 April 2002, considering the amount of non-pecuniary compensation insufficient, the Supreme Administrative Court quashed the judgment of the Antalya Administrative Court once again.
13. On 19 December 2002 the Antalya Administrative Court insisted on maintaining its judgment. The applicant appealed.
14. On 16 June 2005 the Supreme Administrative Court quashed the judgment of the Antalya Administrative Court of 19 December 2002.
15. On 29 December 2005 the Antalya Administrative Court adhered to the decision of the Supreme Administrative Court and awarded the applicant TRL 1,000,000,000 in respect of non-pecuniary compensation with statutory interest running from 18 October 1996.
16. On 27 June 2006 the Supreme Administrative Court rejected the appeal of the Municipality. The Municipality paid the due amount to the applicant.
VIOLATED_ARTICLES: 6


ITEMID: 001-59167
LANGUAGEISOCODE: ENG
RESPONDENT: FRA
BRANCH: CHAMBER
DATE: 2001
DOCNAME: CASE OF VAUDELLE v. FRANCE
IMPORTANCE: 1
CONCLUSION: Preliminary objection rejected;Violation of Art. 6-1;Non-pecuniary damage - financial award
TEXT: 8. By an order of 17 November 1994 the guardianship judge of the District Court of the 16th Administrative District of Paris granted the applicant's son a special power of attorney to deal with the applicant's affairs. The order stipulated that the special power of attorney would remain effective until the judge had decided whether or not to make a guardianship order (tutelle) or a supervision order (curatelle). The order conferred power on the attorney, inter alia, to:
“... receive all correspondence, including registered letters, addressed to the protected person regarding his administrative or financial affairs. The special attorney shall give the protected person his personal correspondence within forty-eight hours ...”
9. On 16 February 1995 a complaint was lodged against the applicant for several alleged offences of indecent assault on minors.
10. The applicant was questioned by the gendarmerie on 20 February 1995 and admitted some of the allegations. The investigating officers noted in their report that the applicant's son had a special power of attorney to deal with his affairs and that the applicant lived in Paris; they also made reference to the order made on 7 November 1994 by the guardianship judge of the District Court of the 16th Administrative District of Paris.
11. On 1 March 1995, in view of the pending criminal investigation, the guardianship judge adjourned the decision whether or not to make an order for the applicant's supervision and heard the applicant's son in chambers in order to elicit further information.
12. By a judgment of 29 March 1995 the guardianship judge at the District Court of the 16th Administrative District of Paris made a supervision order in respect of the applicant. The applicant's son was appointed as the supervisor. The judge referred to a written opinion dated 14 February 1995 of State Counsel's Office, which concluded that the applicant should be placed under supervision. The judge said, inter alia:
“The Court has had regard to
(i) the expert report dated 16 September 1994 of Dr L., a specialist medical practitioner on the list of experts compiled by State Counsel;
(ii) the medical certificate issued by Dr M., the patient's doctor, on 16 September 1994;
(iii) the record of evidence taken from the person requiring protection on 1 February 1995;
(iv) the record of evidence taken from Mr Alain Vaudelle and Mrs N. on 1 February 1995;
(v) the written opinion dated 14 February 1995 of the representative of State Counsel's Office, concluding that Mr Marcel Vaudelle should be placed under supervision.
The Court notes that the expert medical practitioner's report and the information before it show that, owing to the impairment of his faculties, Mr Marcel Vaudelle requires representation and assistance in the conduct of his civil affairs. Consequently, he must be placed under supervision ...
The Court reminds those concerned that the protected adult may not, without the assistance of his supervisor, perform any act for which permission from the guardianship council would be required under the regime applicable to the guardianship of minors [sic], in particular he may not without his supervisor's assistance divide up any part of his estate, receive or use any capital, let or rent property, take part in court proceedings, make gifts ...”
13. State Counsel's Office in Paris was notified of the supervision order.
14. On 30 March 1995 the public prosecutor's office at the Tours tribunal de grande instance made an order for the applicant's examination by a psychiatrist. The applicant was given two appointments by the psychiatrist – on 20 April and 11 May 1995 – but did not attend either.
15. On 19 October 1995, after a hearing earlier that day, the Tours Criminal Court found the applicant guilty of sexual assault by violence, coercion, threats and taking the victim unawares on minors aged under 15, holding:
“... the case alleged against the accused has been substantiated both by the evidence in the case file and the evidence heard at the hearing.
The Court must find the accused guilty and apply the criminal law to him.
The offences are particularly serious as they concern repeated acts of indecent assault on minors aged under 15. In these circumstances, a partly immediate custodial sentence is called for ...”
The Criminal Court sentenced the applicant to twelve months' imprisonment, of which eight months were suspended for eighteen months, the applicant being on probation during the latter period. It also ordered him to pay damages.
16. It found that the applicant had been duly summoned to attend the hearing and that the form of acknowledgment of receipt of the registered letter sent by bailiff (which the applicant had signed on 7 October 1995) showed that the applicant had received the summons and had therefore been aware that he was required to appear before it. However, he had not appeared in person, been represented or shown due cause for failing to appear. His case was therefore decided by a judgment delivered in proceedings that were deemed to have been adversarial.
17. On 8 November 1995 the guardianship judge took further evidence from the applicant's son, in his capacity as supervisor, regarding the applicants' change of address and the criminal proceedings. At the hearing, the judge directed the applicant's son to forward the applicant his correspondence. The applicant's son said that he had received no news from his father about the criminal proceedings since March 1995.
18. On 10 November 1995, after the applicant had changed address, the guardianship judge at the District Court of the 16th Administrative District of Paris made an order relinquishing jurisdiction in favour of the Loches guardianship judge.
19. The judgment of 19 October 1995 was served on the applicant on 5 December 1995. He served his prison sentence from 16 April to 19 July 1996.
20. The applicant affirms that his son, in his capacity as supervisor, was not informed of his arrest or of his conviction on 19 October 1995 until 16 April 1996, as all the summonses and notices of appointment in the criminal proceedings were sent to him directly. His son had subsequently contacted the guardianship judge, informing him of his father's arrest and explaining that he knew nothing about the criminal proceedings against him. On 20 April 1996 his son had also complained to the public prosecutor at the Tours tribunal de grande instance about not being informed of the proceedings against the applicant. According to the son, on becoming aware of the complaint against his father, he had made enquiries at the gendarmerie in order to obtain additional information, but had been advised that no proceedings had been brought and that there had merely been a request for a psychiatric report.
21. The Government said that the judgment of the guardianship judge of the District Court of the 16th Administrative District of Paris dated 1 March 1995 showed that the judge had decided to adjourn hearing the application for a supervision order because of the criminal proceedings pending against the applicant and had required the applicant's son to attend court to give information about those proceedings.
22. In a letter of 24 April 1996 the guardianship judge of Loches District Court informed the applicant's son that there was no recourse against the judgment of 19 October 1995, since, in the absence of an appeal, it had become final. The judge explained that the applicant's supervisory regime entitled him only to assistance: it did not entail an obligation for the supervisor to be informed that criminal proceedings had been brought against the person supervised.
23. In a letter of 25 April 1996 the public prosecutor at the Tours tribunal de grande instance observed in reply to a letter from the applicant's son dated 20 April 1996 that the applicant had failed to attend the court hearing even though he had received the summons by registered letter and had signed an acknowledgment of receipt of it on 7 October 1995. He had not seen fit to attend the court's hearing just as he had not seen fit to attend his appointments on 20 April and 11 May 1995 with the psychiatrist who had been instructed by the public prosecutor's office to examine him. The public prosecutor also pointed out that the applicant had given no indication that he was subject to a supervision order. Lastly, he repeated that the applicant had received notification of the judgment.
24. On 10 May 1996 the lawyer acting for the applicant's son wrote to the judge responsible for the execution of sentences to enquire what measures were to be taken in favour of the applicant in view of the fact that it was “unusual” for a person in respect of whom a supervision order had been made to be convicted without being afforded an opportunity to receive assistance at the hearing from his supervisor. He explained in his letter:
“... Marcel Vaudelle personally received the summonses which were sent to him both by the registries and the gendarmerie, but his son, Alain Vaudelle, was never informed of the existence of any of that correspondence although he had informed the gendarmerie concerned that his father was subject to a supervision order ...”
25. On 24 June 1996 the applicant's supervisor lodged an appeal against the judgment of 19 October 1995 on the ground that the applicant “[had been] ill at the time of the hearing and unable to comply with the court's summons or to appeal”. On 28 June 1996 he received a reply informing him that he did not have standing to appeal and that, in any event, the applicant's conviction had become final owing to his failure to appeal. On 30 May 1997 the supervisor wrote a further letter to the public prosecutor contesting the judgment of 19 October 1995.
26. The applicant was examined by a psychiatrist following a direction issued by the Loches guardianship judge on 22 August 1996. The expert concluded that the consultation: “[did] not reveal any intellectual deficit. There [was] no major impairment of the memory, the powers of concentration or the ability to reason logically”.
27. On 27 August 1996 the guardianship judge heard the applicant, who complained that his supervisor had been taking his money without accounting to him for it and requested a change of supervisor. On 29 August 1996 the applicant's son was heard by the guardianship judge. He accepted that relations with his father were perturbed and requested that his father be made subject to a guardianship order.
28. By an order of 25 September 1996 Loches District Court discharged the applicant from his role as supervisor. That decision was upheld by a judgment of 9 January 1997.
29. The relevant provisions of the Civil Code are the following:
“When the mental faculties are impaired by illness, infirmity or decline due to age, the interests of the person concerned shall be provided for by one of the protective regimes laid down in the following chapters.
The same protective regimes shall be applicable in the event of impairment of the physical faculties if the person concerned is thereby prevented from expressing his or her will.
Impairment of the mental or physical faculties must be established by medical evidence.”
“A guardianship order shall be made if, for one of the reasons set out in Article 490, an adult requires continual representation in the conduct of his or her civil affairs.”
“When, for any of the reasons set out in Article 490, an adult, though not incapable of acting, requires advice or supervision in the conduct of his or her civil affairs, he or she shall be placed under a supervisory regime.”
“An adult subject to supervision may not, without the assistance of his or her supervisor, perform any act for which permission from the guardianship council would be required under the guardianship of adults regime. Nor may he or she receive or use capital sums without such assistance.”
“Any service of judicial process on an adult subject to a supervision order must also be made on his or her supervisor, on pain of nullity.”
“When making a supervision order or in a subsequent judgment the judge may, on the advice of the patient's doctor, enumerate certain acts which the person subject to the order shall have capacity to perform alone as an exception to Article 510 or, conversely, add other acts to the list of those for which assistance from the supervisor is required under that Article.”
30. Extracts from the relevant case-law:
The Court of Cassation overturned a judgment of a court of appeal in a case in which there was no indication from the written annotations, the procedural documents or any other item of evidence that the supervisor had been notified of a notice of appeal against a divorce decree lodged by the person subject to the supervision order (Court of Cassation, First Civil Division, 17 December 1991, Dalloz 1992, p. 373). Conversely, the Court of Cassation declared admissible an appeal on points of law that had been served on the supervisor after being served on the person subject to the supervision order (Court of Cassation, First Civil Division, 6 January 1988, Bull. civ. [Civil Bulletin] I, no. 3).
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-113754
LANGUAGEISOCODE: ENG
RESPONDENT: ARM
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF TUNYAN AND OTHERS v. ARMENIA
IMPORTANCE: 4
CONCLUSION: Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Deprivation of property)
JUDGES: Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Ján Šikuta;Josep Casadevall;Kristina Pardalos;Luis López Guerra
TEXT: 4. The applicants were born in 1945, 1940, 1974 and 1976 respectively and live in Yerevan.
5. Ms Emma Tunyan (hereafter, the first applicant) owned a flat which measured 89.25 sq. m. and was situated at 9 Byuzand Street, Yerevan. The flat was in a house situated on a plot of land measuring 240 sq. m. leased by the first applicant. The applicants alleged that Mr Sashik Safyan, Mr Gevorg Safyan and Mr Mihran Safyan (hereafter, the second, third and fourth applicants), the first applicant’s husband and two sons, enjoyed a right of use in respect of this house, while the Government contested this allegation and claimed that they did not enjoy the right of use in respect of the house and simply had the right to live in it.
6. On 1 August 2002 the Government adopted Decree no. 1151-N, approving the expropriation zones of the immovable property (plots of land, buildings and constructions) situated within the administrative boundaries of the Central District of Yerevan to be taken for the needs of the State for the purpose of carrying out construction projects, covering a total area of 345,000 sq. m. Byuzand Street was listed as one of the streets falling within such expropriation zones.
7. On 17 June 2004 the Government adopted Decree no. 909-N, contracting out the construction of one of the sections of Byuzand Street – which was to be renamed as the Main Avenue – to a private company, Glendale Hills CJSC.
8. On 28 July 2004 Glendale Hills CJSC and the Yerevan Mayor’s Office signed an agreement which, inter alia, authorised the former to negotiate directly with the owners of the property subject to expropriation and, should such negotiations fail, to institute court proceedings on behalf of the State, seeking forced expropriation of such property.
9. On 25 August 2004 Glendale Hills CJSC informed the applicants that the flat and the leased plot of land had been valued by a licensed valuation organisation at USD 34,200 and offered the first applicant as the owner an equivalent sum in the national currency as compensation. An additional sum of USD 28,600 was offered to her as a financial incentive, if she agreed to sign an agreement and to hand over the property within the following five days. The other applicants were offered each USD 2,000 as compensation and USD 1,500 as a financial incentive.
10. It appears that the applicants did not accept the offer, not being satisfied with the amount of compensation offered.
11. On 23 September 2004 Glendale Hills CJSC instituted proceedings against the applicants on behalf of the State, seeking to oblige them to sign an agreement on the taking of their property for State needs and to evict them.
12. On 18 October 2004 the first applicant lodged a counter-claim in which she contested the constitutionality of Government Decree no. 1151-N. She submitted, inter alia, that this Decree contradicted Article 28 of the Constitution, according to which property could be expropriated only through the adoption of a law concerning the property in question. She further submitted that the Government was not authorised under the same Article to decide on the expropriation of property.
13. On 26 October 2004 the Kentron and Nork-Marash District Court of Yerevan granted the claim of Glendale Hills CJSC and dismissed the counter-claim of the first applicant, ordering the applicants to sign the agreements offered and that they be evicted. The District Court stated, inter alia, that it was not competent to decide upon the constitutionality of Government Decree no. 1151-N.
14. On 9 November 2004 the applicants lodged an appeal.
15. On 1 March 2005 the Civil Court of Appeal granted the claim of Glendale Hills CJSC. The Court of Appeal further terminated the proceedings on the first applicant’s counter-claim since it was not competent to decide on the constitutionality of government decrees. It also ordered that the applicants pay court fees in the amount of 4,000 and 10,000 Armenian drams (AMD).
16. On 14 March 2005 the applicants lodged an appeal on points of law. On 1 April 2005 they filed additional submissions to their appeal.
17. On 14 April 2005 the Court of Cassation dismissed the applicants’ appeal.
18. On 29 April 2005 the bailiff instituted the enforcement proceedings and ordered the applicants to comply with the judgment. On 12 May 2005 the applicants, who had apparently refused to comply voluntarily with the judgment, were forcibly evicted from their home.
19. For a summary of the relevant domestic provisions see the judgment in the case of Minasyan and Semerjyan v. Armenia (no. 27651/05, §§ 23-43, 23 June 2009).
VIOLATED_ARTICLES: P1
VIOLATED_PARAGRAPHS: P1-1
VIOLATED_BULLETPOINTS: P1-1-1