ITEMID: 001-114653
LANGUAGEISOCODE: ENG
RESPONDENT: LTU
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF KASPEROVIČIUS v. LITHUANIA
IMPORTANCE: 4
CONCLUSION: Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect)
JUDGES: Guido Raimondi;Helen Keller;Ineta Ziemele;Paulo Pinto De Albuquerque
TEXT: 5. The applicant was born in 1962 and lives in Vilnius.
6. In October 2006 the applicant was detained at the Anykščiai Police Detention Facility (hereinafter – “the Anykščiai Facility”) in cell No. 3. From 9 to 11 October he shared the cell with another person, and from 12 to 16 October he was held alone. The detention facility contained seven cells in total.
7. The applicant complained to the administration of the Anykščiai Facility that the conditions of his detention had been appalling. In their letter of reply dated 6 November 2006, they informed the applicant that because the cell in which he had been held was situated at semi-basement level, it was technically impossible for it to have a window through which natural light could enter. They also explained that in order to install sinks and toilets in the cells, full-scale renovation would be required, but said that this was precluded owing to a lack of financial resources.
8. The applicant then lodged a complaint, the content of which is unknown to the Court, with the Anykščiai District Prosecutor’s Office. In its reply dated 16 November 2006, the Prosecutor’s Office conceded that some of the applicant’s allegations were true: the Anykščiai Facility had indeed not met proper “norms of hygiene and functioning”. They said that the Government had been informed about the fact and that the building of a new facility was planned.
9. The applicant lodged a further complaint with the Ombudsman, arguing that he had been held in a cell without a sink or toilet. The cell also lacked a window, so there had been no natural light or fresh air.
10. The head of the Anykščiai Facility informed the Ombudsman that the building had been constructed in 1926 and thus it had been impossible to install toilets and sinks in the cells. He explained that detainees were taken to a communal toilet at the end of the corridor and that “each cell had a bucket for the night”. Detainees could also take drinking water to their cell.
11. On 23 January 2007 the Ombudsman found the applicant’s complaint valid. He noted that in March 2006 health care specialists had pointed out “over and over again” (eilinį kartą) that the cells lacked sanitary units as well as natural light, although the artificial lighting met domestic legal norms. The old air vents were inadequate and the air conditioning system was ineffective. However, the facility administration was not to blame for the insufficient funding that had precluded the possibility of improving conditions in the facility.
12. The applicant then initiated proceedings before the Panevėžys Regional Administrative Court seeking compensation for non-pecuniary damage, arguing that he had been held in degrading conditions at the Anykščiai Facility. In particular, his cell had had no built-in toilet, so he had had to use a bucket. Nor did the cell have a sink, so he had suffered from a lack of drinking water. Furthermore, as a result of the inadequate lighting and the lack of fresh air, he had suffered constant headaches and his eyes had become sore. The applicant claimed 210,000 Lithuanian litai (approximately 61,000 euros) in non-pecuniary damages. He also claimed that his rights under Article 3 of the Convention had been violated.
13. In reply to the lawsuit, the Anykščiai Facility acknowledged that the establishment did not meet the domestic legal hygiene requirements, but argued that its administration was not to blame for the lack of funding that had caused the problem and that the construction of a new remand facility was planned.
14. On 19 October 2007 the Panevėžys Regional Administrative Court dismissed the applicant’s claims as unfounded. The court acknowledged that the conditions at the Anykščiai Facility had been unacceptable, particularly as the cells lacked sinks and toilets and inmates had to be taken to a communal toilet and had to take water to their cells. Moreover, not all cells had natural light, the air came through old vents and the air conditioning system was ineffective. Nevertheless, the court held that the facility’s administration could not be held liable for those deficiencies because the State had not allocated sufficient financial resources to improve the situation.
15. The applicant appealed against the judgment, and on 11 July 2008 the Supreme Administrative Court granted the appeal in part, acknowledging that the conditions of the applicant’s detention had been unacceptable. The court noted that the Anykščiai Facility had not challenged the applicant’s claim that while detained, he had had to relieve himself in a bucket at night. The court considered that fact degrading. The court also found it established that the applicant had been held in a cell without a sink, and that his cell had had no natural light or adequate ventilation, which had had a negative effect on his mental health (sukėlė neigiamus išgyvenimus). On these points the court found that certain domestic regulations on hygiene standards in detention facilities - providing that cells should have natural light and that detainees should be able to use a toilet in conditions that were not degrading - had been breached. The court conceded that degrading conditions of detention could in theory amount to a violation of Article 3 of the Convention. With regard to the applicant’s case, the court held that the conditions in which he had been held had “approached the threshold of a violation of Article 3 of the Convention”. Nevertheless, the applicant had been held for only a short time, he was 44 years of age and there was no evidence that the conditions at the detention facility had affected his [physical] health. Nor was there any indication that the detention facility administration had intended to humiliate the applicant. Certain hardships, such as a lack of privacy, were to be considered unavoidable for those who were deprived of their liberty. In the light of the above-mentioned considerations, the Supreme Administrative Court held that, in the applicant’s case, the minimum level of severity within the meaning of Article 3 of the Convention had not been reached.
16. As to the applicant’s claim in respect of non-pecuniary damage, the Supreme Administrative Court referred to the case-law of the European Court of Human Rights, noting that in some cases the finding of a violation was recognised as sufficient just satisfaction. It also noted that the applicant had instituted court proceedings for damages nine months after the end of his detention in the police facility, by which time the effects of the negative experience would have diminished to a certain extent. Emphasising that in the instant case there had been no violation of Article 3 of the Convention, as well as the fact that the poor detention conditions were a result of limited financial resources, the Supreme Administrative Court rejected in its entirety the applicant’s claim for pecuniary compensation for the non-pecuniary damage he had sustained.
17. When submitting their observations on the admissibility and merits, the Government provided the Court with a copy of the schedule of the Anykščiai Facility, which showed that at the relevant time the inmates were to be taken for an hour’s walk once a day.
18. The Civil Code provides:
“1. Non-pecuniary damage shall be deemed to be a person’s suffering, emotional distress, inconvenience, mental shock, emotional depression, humiliation, damage to reputation, diminished opportunity to associate with others, etc., evaluated by a court in pecuniary terms.
2. Non-pecuniary damage shall be compensated only in the cases provided for by law. Non-pecuniary damage shall be compensated in all cases where it is incurred on account of crime, health impairment or deprivation of life, as well as in other cases provided for by law. In assessing the amount of non-pecuniary damage, the court shall take into consideration the consequences of the damage sustained, the extent of the fault of the person by whom the damage has been caused, his financial status, the amount of pecuniary damage sustained by the aggrieved person, any other circumstances of importance for the case, and the criteria of good faith, justice and reasonableness.”
19. In case no. A143-1966/2008 the Supreme Administrative Court acknowledged that a person who had been detained in improper, unsanitary conditions had sustained non-pecuniary damage.
20. The Regulations applicable to the activities of detention facilities at police stations, approved by Order no. 88 of the Ministry of the Interior on 17 February 2000, provide that “detainees shall have a right to use the lavatory in conditions that do not degrade their honour and dignity” (point 76). They also provide that “the [detainees] shall be taken by a guard from the cells that lack sanitary units to a lavatory (...). During the changing of the guards’ shifts, any other traffic on the remand facility premises is forbidden” (point 219).
21. Hygiene Norm HN 37:2002 “Detention facilities. Rules for construction and operation”, approved by Ministry of Health Order no. 215 of 17 May 2002, reads, in so far as relevant, as follows:
“1. This hygiene norm applies to all newly constructed, reconstructed, renovated and operational police station detention facilities.
2. The hygiene norm prescribes the main hygiene requirements applicable to the construction of police station detention facilities, providing a safe and healthy living environment for the detainees and a safe and healthy working environment for the employees and officials.
3. The hygiene norm must be observed by all persons who design, equip or operate in the detention facilities and the detainees ...
22. In operating detention facilities, natural light and air circulation shall be ensured in the cells by constructing clear glass windows which can be opened ...
28. The cells and the lock-up room shall contain a sanitary unit (a lavatory and a washbasin). In the cells the sanitary unit shall be separated by a 1.2 metre high barrier ...”
22. Recommendation Rec(2006)2 of the Committee of Ministers of the Council of Europe on the European Prison Rules, adopted on 11 January 2006, reads as follows:
“1. All persons deprived of their liberty shall be treated with respect for their human rights. ...
4. Prison conditions that infringe prisoners’ human rights are not justified by lack of resources. ...”
“10.1 The European Prison Rules apply to persons who have been remanded in custody by a judicial authority or who have been deprived of their liberty following conviction. ...”
“...
18.1 The accommodation provided for prisoners, and in particular all sleeping accommodation, shall respect human dignity and, as far as possible, privacy, and meet the requirements of health and hygiene, due regard being paid to climatic conditions and especially to floor space, cubic content of air, lighting, heating and ventilation.
18.2 In all buildings where prisoners are required to live, work or congregate:
a. the windows shall be large enough to enable the prisoners to read or work by natural light in normal conditions and shall allow the entrance of fresh air except where there is an adequate air conditioning system;
b. artificial light shall satisfy recognised technical standards; and
c. there shall be an alarm system that enables prisoners to contact the staff without delay.
18.3 Specific minimum requirements in respect of the matters referred to in paragraphs 1 and 2 shall be set in national law.”
“19.1 All parts of every prison shall be properly maintained and kept clean at all times ...
19.3 Prisoners shall have ready access to sanitary facilities that are hygienic and respect privacy.”
23. The Committee for the Prevention of Torture and Inhuman or Degrading Treatment (hereinafter referred to as “the CPT”) visited Lithuania from 17 to 24 February 2004. Its report reads as follows:
“34. In its first report to the Lithuanian authorities, drafted following its visit in 2000, the CPT was critical of conditions of detention in police detention centres; with a view to improving the situation in the establishments concerned, it made a number of specific recommendations.
In their follow-up report (dated September 2001), the authorities acknowledged that of the 47 police detention centres in Lithuania, only eight (i.e., 17%) met “the requirements set forth by Hygiene Norm HN 37-1997”; it was considered necessary to secure sufficient resources in order to renovate or replace the other detention centres. Nevertheless, by the time of the 2004 visit, the proportion of detention centres which conformed to the requisite standards remained low (20%). As the Seimas (Parliamentary) Ombudsman has recently pointed out, ‘legal acts have been adopted on the improvement of living conditions of inmates in police commissariat detention establishments, however the real results are expected only in a couple of years since the implementation of the program directly depends on State funding’.
The 2004 visit confirmed that many of the CPT’s key recommendations concerning conditions of detention in police detention centres have yet to be implemented.
35. The material conditions under which detained persons (in police custody, on remand, or sentenced) were being held in the police detention centres in Kaunas and Marijampolė were totally unacceptable. Detainees were locked up ... with little or no access to natural light and, in many cases, dim artificial lighting. A tap placed directly above the minimally partitioned lavatory was the only source of drinking water. In certain cells, persons were obliged to relieve themselves in a bucket in the direct presence of their cellmates. The ventilation system which had been installed in Kaunas since the visit in 2000 could scarcely counter the effects of the above-mentioned conditions on the air in the cells ...
The cumulative effect of the very poor material environment and the impoverished regime could be described as inhuman and degrading, especially considering that persons were being held under such conditions for prolonged periods.”
24. After a further visit to Lithuania from 21 to 30 April 2008, the CPT delegation noted that efforts were being made to improve conditions in certain police detention centres. Particular mention was made of the recent substantial renovation of the detention facilities at Kaunas City Police Headquarters, which had been the subject of severe criticism by the CPT after the 2000 and 2004 visits. During the 2008 visit, the delegation observed very good material conditions in that establishment. The authorities informed the delegation at the outset of the visit that major renovation had also been carried out in police detention centres at Klaipėda and Panevėžys. Indeed, when visited by the delegation, the latter establishment was found to offer good detention conditions. The delegation was also informed that renovation work was planned in several other police detention centres, in the context of the “Police Development Programme for 2007-2011” (paragraphs 24 and 25 of the CPT report).
25. However, the CPT noted that material conditions in the other police detention centres visited (Jonava, Rokiškis, Kupiškis, Šiauliai and Trakai) displayed a number of major shortcomings and could in some cases be considered inhuman and degrading. The majority of cells seen by the delegation were in a poor state of repair and filthy. Detainees often had little or no access to natural light, and the cells had dim artificial lighting and poor ventilation. At Jonava, a tap placed directly above the minimally partitioned and unhygienic in-cell toilets was the only source of drinking water. Furthermore, as was the case during previous CPT visits, most detainees in police detention centres were locked in their cells for the majority of the day, their only diversions consisting of conversing with their cellmates or, in some detention centres, watching TV. For the CPT, “such a state of affairs was totally unacceptable” (paragraph 26 of the CPT report).
26. More generally, the CPT called upon the Lithuanian authorities to step up their efforts to bring conditions of detention in all police detention centres to an acceptable level. In particular, measures had to be taken to ensure first that access to natural light and artificial lighting, as well as ventilation, was adequate; secondly that all detainees had ready access to drinking water in salubrious conditions and were provided with basic hygiene products; and thirdly that the state of repair and hygiene in the cells and the communal sanitary facilities was adequate (paragraph 27 of the CPT report).
27. After a further visit to Lithuania from 14 to 18 June 2010, the CPT concluded:
“25. Material conditions of detention in the three police detention centres visited ranged from very good (Kaunas) to satisfactory (Wing 2 at Klaipėda) to poor − and in some areas very poor (Wing 1 at Klaipėda and Vilnius).
Kaunas City Police Detention Centre had been renovated prior to the 2008 visit and the CPT’s report commented favourably on the material conditions. The delegation which carried out the 2010 visit observed that those conditions remained of a very good standard.
Klaipėda City Police Detention Centre had been partially refurbished. In the renovated wing of the building (Wing 2), material conditions were satisfactory on the whole. Nonetheless, access to natural light left something to be desired, and the toilets were insufficiently partitioned. Conversely, conditions in the non-renovated wing (Wing 1) were very poor. The cells were in a dilapidated state, dirty and damp, and the same was true of the mattresses and blankets. Further, access to natural light, artificial lighting and ventilation were limited, and the toilets lacked a partition and were malodorous. As for the electrical installations, they seemed hazardous. The delegation was also informed that, in winter, the cells were very cold.
At Vilnius City Police Detention Centre, the cells were in a poor state of repair and hygiene, and access to natural light and ventilation were inadequate. Moreover, the toilets only had a low partition. In four cells (nos. 8 to 11), the windows had been concreted over, and there was therefore no access to natural light and no evident means of ventilation; the atmosphere in these cells was damp and suffocating.”
VIOLATED_ARTICLES: 3


ITEMID: 001-70562
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF N.A. AND OTHERS  v. TURKEY
IMPORTANCE: 1
CONCLUSION: Violation of P1-1;Just satisfaction reserved
JUDGES: Jean-Paul Costa
TEXT: 9. The applicants, N.A., N.A., A.A., J.Ö. and H.H., were born in 1926, 1956, 1954, 1949 and 1950 respectively and live in Antalya.
10. After surveys had been conducted by the Land Office between 1956 and 1958, a plot of land on the coast in the locality of Karasaz (village of Çikcilli, district of Alanya, parcel no. 84) was entered in the land register in the name of R.A.
11. Following R.A.'s death, the applicants inherited the land and paid the appropriate taxes and duties on it.
12. On 25 June 1986 the applicants obtained a tourist investment certificate from the Ministry of Culture and Tourism with a view to building a hotel on the land.
13. On 9 July 1986 the State Planning Organisation awarded the applicants an investment incentive certificate, again for the purpose of building a hotel. Paragraph X of the certificate stated that the applicants had to obtain a tourism licence once the investment had been made.
14. On 28 October 1986, after the applicants had started building the hotel, the Treasury instituted proceedings in the Alanya District Court, seeking an order for the cancellation of the entry of the property in the land register and for the demolition of the hotel.
15. An expert report of 31 October 1986 stated that parcel no. 84 was part of the coastline and could not be the subject of an acquisition.
16. On 31 October 1986 the District Court made an interim order for the suspension of building work on the hotel.
17. An expert report of 3 March 1987 pointed out that parcel no. 84 was part of the coastline and, as such, could not be owned by a private individual.
18. In a judgment of 16 June 1987 the District Court ordered the cancellation of the entry in the land register and the demolition of the partially built hotel. It made the following observations:
“[Having regard to] the expert report [and] ruling on the merits [of the case], ... having regard to the available evidence and, in particular, the photographs and all the other items in the file, the Court considers that the property in issue is part of the seashore [Deniz kıyısı]. Although coastlines remain outside the boundary delimited and fixed in decisions by certain commissions, they cannot constitute property that is subject to private ownership ... the registration of the property in the claimants' name does not confer any rights on them.”
19. On 9 December 1987 the District Court dismissed an appeal by the applicants against the interim order of 31 October 1986.
20. In a judgment of 12 February 1988 the Court of Cassation quashed the judgment of 16 June 1987 and remitted the case to the first-instance court.
21. In a judgment of 17 February 1989, disregarding the Court of Cassation's judgment, the District Court reaffirmed its initial ruling. It held:
“... the disputed site is the responsibility and property of the State. In that respect there is no discrepancy with [the judgment] delivered by the plenary Court of Cassation. Even the State, when placing restrictions on the enjoyment of possessions in accordance with property law ..., cannot accept the existence of private property at such a site ... Although the property in issue in the present case was formerly situated within the coastal boundary, it was placed outside that boundary by [a decision of] the commission formed at a later date. The site was quite clearly located on a sandy beach, as, indeed, is apparent from previous judicial decisions that have become final, and from expert reports and photographs ...”
22. In a judgment of 18 October 1989 the plenary Court of Cassation upheld the judgment given by the lower court, finding it to have interpreted and applied the law correctly.
23. In a judgment given on an unspecified date the District Court confirmed its initial judgment.
24. In a judgment of 1 March 1990 the Court of Cassation upheld the judgment given at first instance.
25. In a judgment of 27 September 1990 it dismissed an application for rectification of the judgment.
26. On 27 September 1991 the applicants brought an action for damages in the Alanya District Court on account of their loss of ownership and the demolition of the partially built hotel.
27. In a judgment of 1 April 1994 the District Court dismissed the applicants' action on the ground that the State was not liable for the damage resulting from the cancellation of the registration of the property in issue. In its reasoning it stated that the applicants had asserted, on the basis of the entries in the land register, that they had made investments in relation to the land in question and that, as a result of the proceedings brought by the Treasury for the cancellation of the registration, they had sustained a loss. The District Court explained its decision by pointing out that the applicants and their heirs would have been aware that the site was on sandy ground, and that it was impossible for them to maintain that the State had deceived them and for the principle of strict liability to be applied in their case. It concluded that no loss had resulted from the contents of the land register, that the entry had been unlawful from the outset and that the applicants were accordingly not entitled to take proceedings against the State to seek compensation for the loss sustained.
28. In a judgment of 28 November 1995 the Court of Cassation upheld the judgment given at first instance.
29. In a judgment of 9 December 1996 the Court of Cassation dismissed an application for rectification of the judgment.
30. Article 43 of the Constitution provides:
“The coasts are the property of the State and fall within its jurisdiction.
The public interest shall prevail in the use of seashores, lake shores and riverbanks and of the coastal strips situated by seas and lakes.
The law shall determine the width of coastal strips according to their use, together with the possibilities and conditions for such use by individuals.”


ITEMID: 001-111902
LANGUAGEISOCODE: ENG
RESPONDENT: LVA
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF ALEKSEJEVA  v. LATVIA
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life;Respect for private life)
JUDGES: Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Ján Šikuta;Josep Casadevall;Kristina Pardalos;Nona Tsotsoria
TEXT: 5. The applicant was born in 1984 and lives in Rīga.
6. On 18 October 2006 the applicant was detained in Iļğuciema Prison, the only prison in Latvia for female detainees.
7. The applicant’s mother had worked in Iļģuciema Prison for approximately twenty-five years prior to her daughter’s detention there. In 2006 the applicant’s mother was an assistant to the prison governor. Her last day of work at the prison was on 19 October 2006. On the following day, the director of the Latvian Prison Administration approved the applicant’s mother’s retirement from service at the Ministry of Internal Affairs as of 22 October 2006 due to her having reached the retirement age.
8. According to the applicant, on the day on which she was brought to Iļģuciema Prison she was told by the head of security that this was the first time a relative of a staff member of Iļģuciema Prison had been detained there. The applicant was advised to conceal this information from employees and other detainees at the prison, as it was considered that she might be in danger if that information were found out.
9. On 19 October 2006 a guard took away a photo of the applicant’s mother from her cell, explaining that the photo could reveal their personal ties and endanger the applicant’s safety.
10. On 26 October 2006 the applicant was moved from an intake cell to a two-person cell. She started serving her sentence in the lowest (the most restrictive) imprisonment regime. From 22 January 2007 the applicant shared the cell with a former bailiff. The applicant encountered other detainees during her daily walks, while attending cooking classes, and during weekly showers and visits to the laundry room.
11. According to the applicant, she lived in constant fear of her connection with her mother being found out, as the attitude of prisoners towards the relatives of people employed in prisons, the police or the courts was negative. According to the applicant, one of the inmates of Iļģuciema Prison knew who her mother was. That inmate was released from prison in 2007.
12. After the case was communicated to the respondent Government the applicant submitted more specific information about the attitude of other prisoners towards her. According to the applicant, one former inmate (V.M.) had known of the risks faced by the applicant but had been afraid to give any such information in writing because she had only recently been released from prison, was still on probation and was therefore afraid of possible repercussions from the State authorities. In particular, V.M. had allegedly witnessed an incident in which an inmate, L.A., had used derogatory language and veiled threats towards the applicant and had also implied that she had learned of the applicant’s family relations from a prison staff member, T.J.
13. On 5 December 2006 the Rīga City Vidzeme District Court examined an application made by the applicant on 17 October 2006 to postpone the start of the execution of her prison sentence. The applicant was present at the hearing and brought her mother’s previous employment at Iļģuciema Prison to the court’s attention. The applicant’s application to postpone the start of the execution of her sentence was refused.
14. On 5 February 2007 the applicant submitted a complaint to the Ombudsman’s Office (Tiesībsarga birojs), requesting, inter alia, a transfer to an open prison where she could be isolated from other prisoners and where her mother’s prior employment would not cause problems. The applicant stated that the situation in prison could become dangerous for her if other prisoners found out about her family ties.
15. In a subsequent meeting with the deputy governor of Iļģuciema Prison the applicant was told that it was not possible to ensure her separation from other prisoners unless she was kept in complete isolation. However, both the deputy governor and the applicant agreed that isolation would be comparable to an additional punishment and therefore that that option was not acceptable.
16. On 12 April 2007, prior to a meeting of an administrative commission of Iļģuciema Prison which was to decide the question of whether the applicant should be transferred to medium (less restrictive) imprisonment regime, the applicant was invited to sign a pre-typed form waiving her right to representation by a lawyer at the meeting of the commission. At the bottom of the form the applicant added, in her own hand, that in the event of her transfer to the medium imprisonment regime she did not object to having to share a cell with other prisoners.
17. On 8 May 2007 the meeting of the administrative commission took place. The applicant was transferred to the medium imprisonment regime and placed in a cell with other prisoners. According to the Government, because of safety considerations she was put in a cell together with first time prisoners.
18. On 14 August 2007 the Ombudsman, in response to the applicant’s complaint of 5 February, informed her that a representative of the office had visited Iļģuciema Prison and had found that there were sufficient safeguards in place concerning the security of inmates in the prison, and that the applicant’s life and health were not under threat.
19. On 26 February 2007 the governor of Iļğuciema Prison refused the applicant’s request to allow a long-term visit by a man whom she described as her partner. The applicant was informed that by law she was only entitled to receive long-term visits from individuals other than close relatives if her relatives did not visit her. The applicant was asked to submit proof of her divorce from her then husband.
20. On 28 February 2007 a prison official informed the applicant that she was not allowed to receive visits from her alleged partner, irrespective of a written statement from the Rīga City Kurzeme District Court that the applicant’s divorce case was pending before it.
21. According to the applicant, she was informed by the staff of Iļģuciema Prison that receiving visits from her mother would be “problematic” because if such visits were to occur the prisoners would find out about their family relationship. As a result, the applicant’s mother did not visit her. The applicant made full use of her four monthly phone calls to talk to her mother.
22. After the applicant was divorced from her husband on 16 April 2007, between 26 April 2007 and 22 September 2007 she was allowed to receive five long-term visits and six short-term visits from her alleged partner.
23. From 29 August to 5 September 2007 the applicant was granted leave from prison to visit her mother.
24. On 21 January 2008 the applicant was authorised to serve her sentence under the highest (the least restrictive) imprisonment regime and was transferred to Vecumnieki Open Prison. On an unspecified later date she was released from prison.
25. The European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (hereinafter “the CPT”) has developed standards relating to the treatment of persons deprived of their liberty. The following is an extract from its 11th General Report (CPT/Inf (2001) 16, paragraph 27):
“The duty of care which is owed by custodial staff to those in their charge includes the responsibility to protect them from other inmates who wish to cause them harm. In fact, violent incidents among prisoners are a regular occurrence in all prison systems; they involve a wide range of phenomena, from subtle forms of harassment to unconcealed intimidation and serious physical attacks.
Tackling the phenomenon of inter-prisoner violence requires that prison staff be placed in a position, including in terms of staffing levels, to exercise their authority and their supervisory tasks in an appropriate manner. Prison staff must be alert to signs of trouble and be both resolved and properly trained to intervene when necessary. The existence of positive relations between staff and prisoners, based on the notions of secure custody and care, is a decisive factor in this context; this will depend in large measure on staff possessing appropriate interpersonal communication skills. Further, management must be prepared fully to support staff in the exercise of their authority. Specific security measures adapted to the particular characteristics of the situation encountered (including effective search procedures) may well be required; however, such measures can never be more than an adjunct to the above-mentioned basic imperatives. In addition, the prison system needs to address the issue of the appropriate classification and distribution of prisoners.”
26. Under Latvian legislation, section 11 (5) of the Law on the Detention Procedure (Apcietinājumā turēšanas kārtības likums) specifically provided at the relevant time that detained persons whose conviction had not become final and who belonged to certain specified groups (such as former employees of law-enforcement agencies, including the Prison Administration, and the judiciary, as well as their close relatives) were to be detained separately from other prisoners.
27. Paragraph 13 of Regulation No. 423 (2006) of the Cabinet of Ministers, entitled “The Internal Rules of Detention Institutions” (Brīvības atņemšanas iestādes iekšējās kārtības noteikumi), provides that prisoners ought to be placed in cells after taking into account the availability of free spaces, the psychological compatibility of the convicted persons, their level of education and state of health.
28. Article 45 of the Sentence Enforcement Code (Sodu izpildes kodekss), applicable to convicted prisoners and as in force at the material time, provided for two types of visits in prison – short-term (one to two hours) and long-term (six to forty-eight hours). Long-term visits were normally meant for spending time together with close relatives of the prisoners (parents, children, siblings, spouses and so on). Article 45 went on to say that “[i]f a convicted person does not have any close relatives or if his close relatives do not visit him, the detention institution’s administration may authorise long-term visits with other relatives or other persons”.
29. At the relevant time, the number of visits that prisoners in partly-closed (daļēji slēgti) prisons were allowed to receive depended on their imprisonment regime. According to article 505 of the Sentence Enforcement Code, visiting rights progressed from four to six to eight long-term and short-term visits per year for prisoners in the lowest, medium and highest imprisonment regimes respectively. The length of the long-term visits allowed also increased progressively.
NON_VIOLATED_ARTICLES: 8
NON_VIOLATED_PARAGRAPHS: 8-1


ITEMID: 001-88306
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: SAVCHUR v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Isabelle Berro-Lefèvre;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Volodymyr Butkevych;Zdravka Kalaydjieva
TEXT: The applicant, Mr Fedir Fedorovych Savchur, is a Ukrainian national who was born in 1956 and lives in Beregove. The Ukrainian Government (“the Government”) are represented by their Agent, Mr Yuriy Zaytsev, of the Ministry of Justice.
The facts of the case, as submitted by the parties, may be summarised as follows.
1. Enforcement of the judgment given in the applicant’s favour
On 3 February 2000 the open joint-stock company Zakarpattyaoblenergo (“the company”, Берегівське РЕМ ВАТ ЕК „Закарпаттяобленерго”) found that the applicant had been using an electricity meter which had been damaged. Consequently his electricity bills were recalculated. On 11 October 2001 the company disconnected the applicant’s household electricity supply since the applicant had failed to pay the amount he owed because of the damaged meter.
On 8 November 2001 the applicant lodged a complaint with the Beregove Court (“the court”, Берегівський районний місцевий суд Закарпатської областi) against the company, requesting that his electricity supply be restored and that he receive a response to his request for information.
On 14 December 2001 the court partly dismissed the applicant’s claims and partly left them unexamined.
On 20 March 2002 the Zakarpattya Regional Court of Appeal (the “court of appeal” Апеляційний суд Закарпатської області) quashed the ruling of the first-instance court. The court of appeal ruled that the disconnection had been unlawful, since Ukrainian law did not allow cutting the electricity supply for the reasons given by the company. The court of appeal ordered that the applicant’s household be reconnected to the electricity supply and that a response be given to his request for information.
According to the applicant’s submissions, on 27 May 2002 he requested the court to provide him with the writ of execution in respect of the judgment of 20 March 2002, as the company had failed to execute it voluntarily within the time-limit prescribed by Ukrainian law.
On 4 June 2002 the company restored electricity to the applicant’s apartment. The Government provided this Court with a copy of the company’s letter of 27 June 2002 containing a reply to the applicant’s request for information.
On 10 June 2002 a judge of the court informed the applicant that a copy of the judgment at issue had already been transferred to the company for execution and that under Ukrainian legislation no writ of execution was necessary. It further informed the applicant that such a transfer was the only component of the mechanism provided for by the law to enforce the judgment at issue and was sufficient for that purpose.
In August 2002 the applicant instituted administrative proceedings in the court of appeal against the judge of the court, seeking to oblige him to provide the applicant with the writ of execution.
On 14 August 2002 the court of appeal refused to consider the applicant’s complaint, finding that the issuing of the writ of execution was within the realm of the judicial and not the administrative functions of the court and so could not be challenged in court.
On 29 January 2003 the Supreme Court rejected the applicant’s request for leave to appeal in cassation against the decision of 14 August 2002.
2. The second disconnection of the applicant’s household electricity supply
On 4 June 2002 an officer of the company inspected the applicant’s household electricity supply installation. The officer found that the applicant had failed to sign the agreement on electricity supply with the company, he had no electricity meter, and his household electricity supply installation did not comply with technical standards as prescribed by Ukrainian law. On the same date a report containing a list of the shortcomings was drafted. The applicant was given one month to rectify them.
On 17 July 2002 an officer of the company inspected the applicant’s household electricity supply installation and found that he had failed to rectify the shortcomings. He was given additional time to rectify them, until 25 July 2002. As the applicant failed to rectify the shortcomings, the company disconnected the applicant’s household from the electricity supply in pursuance of paragraph 35 of the Rules on Use of Electricity by Residential Customers.


ITEMID: 001-23803
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: ADMISSIBILITY
DATE: 2004
DOCNAME: LIEDERMANN v. AUSTRIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Christos Rozakis
TEXT: The applicant, Mr Gabriel Liedermann, is an Austrian national who was born in 1958 and lives in Vienna. He is a practising lawyer by profession and presents his own case before the Court.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 14 June 1997 the car, of which the applicant is the registered owner, was parked illegally in a street in the nineteenth district of Vienna. Two sets of proceedings ensued.
On 26 September 1997 the Vienna Municipal Authority (Magistrat der Stadt Wien) ordered the applicant pursuant to section 103 § 2 of the Motor Vehicles Act (Kraftfahrzeuggesetz) to disclose the full name and address of the person who had driven the car on 14 June.
The applicant replied that he had not left the car to anybody on that date.
On 28 January 1998 the Vienna Municipal Authority issued a penal order (Straferkenntnis) in which it sentenced the applicant under sections 103 § 2 and 134 § 1 of the Motor Vehicles Act to pay a fine of 1,200 Austrian schillings (ATS) with 29 hours' imprisonment in default. It found that he had failed to give the requested information.
The applicant appealed on 20 February 1998, submitting in particular that any obligation to give more detailed information than he had given would be incompatible with his right not to incriminate himself as well as with the presumption of innocence as guaranteed by Article 6 of the Convention. In submissions of 24 March 1998 the applicant added that meanwhile on 2 March the Vienna Municipal Authority had issued a penal order for illegal parking against him (see below). He argued that the information he had actually given had, thus, had the effect of incriminating him.
On 2 April 1998 the Vienna Independent Administrative Panel (Unabhängiger Verwaltungssenat) dismissed the applicant's appeal. Referring to the wording of section 103 § 2 of the Motor Vehicles Act, it found that the applicant, by stating that he had not left the car to anyone at the material time, had failed to give the information requested. As to the applicant's argument that the obligation to disclose who had been driving his car at a certain time violated his right not to incriminate himself, the Panel observed that the relevant sentence in section 103 § 2 had constitutional rank. In this connection it also referred to the Constitutional Court's judgment of 29 September 1988 (see below – relevant domestic law and practice).
Subsequently, the applicant lodged a complaint with the Constitutional Court (Verfassungsgerichtshof). He argued that if the Independent Administrative Panel's view was correct he would be obliged to incriminate himself by stating that he had driven the car.
On 29 September 1998 the Constitutional Court refused to deal with the applicant's complaint. Having regard to its judgment of 29 September 1988, it considered that the applicant's complaint did not offer sufficient prospects of success. This decision was served on the applicant on 25 November 1998.
The applicant did not lodge a complaint with the Administrative Court.
On 18 August 1997 the Vienna Municipal Authority issued a provisional penal order against the applicant, finding that he had parked his car contrary to section 24 § 1 (a) and 99 § 3 (a) of the Road Traffic Act (Strassenverkehrsordnung) on 14 June 1997 and imposed a fine of ATS 700 with 17 hours' imprisonment on him.
The applicant filed an objection. Subsequently, on 26 September 1997 the Vienna Municipal Authority ordered him pursuant to section 103 § 2 of the Motor Vehicles Act to disclose the full name and address of the person who had driven the car on 14 June 1997 (see above).
On 2 March 1998 the Vienna Municipal Authority issued a penal order against the applicant, finding that he had illegally parked his car on 14 June 1997. He had thereby violated sections 24 § 1 (a) and 99 § 3 (a) of the Road Traffic Act and was liable to pay a fine of ATS 700 with 17 hours' imprisonment in default.
The applicant appealed on 24 March 1998.
On 2 July 1998 the Independent Administrative Panel dismissed the applicant's appeal. It noted, inter alia, that the applicant had not contested that he had parked the car. It found that the imposition of a fine for failure to disclose the driver of the car did not in all circumstances prevent the authority from imposing a fine for the traffic offence in respect of which the request to disclose the driver had been made.
On 23 February 1999 the Constitutional Court refused to deal with the applicant's complaint for lack of sufficient prospects of success. This decision was served on the applicant on 16 April 1999.
Again, the applicant did not lodge a complaint with the Administrative Court.
By virtue of Article 130 of the Federal Constitution (Bundesverfassungsgesetz), the Administrative Court has jurisdiction to hear, inter alia, applications alleging that an administrative decision is unlawful. Pursuant to Article 131 the application may be brought by any person claiming a violation of his or her rights by the administrative decision, provided that all other remedies have been exhausted.
Pursuant to section 33a of the Administrative Court Act (Verwaltungsgerichtshofsgesetz), in the version in force at the material time, the Administrative Court could decline to deal with an application against a decision of the Independent Administrative Panel, if the fine imposed did not exceed ATS 10,000 and if no important legal problem was at stake. An important legal problem arises in particular, if the Independent Administrative Panel deviated from the Administrative Court's case-law, if case-law on the issue does not exist, or if the Administrative Court's case-law on the issue is not uniform.
Section 42 of the same Act provides that, save as otherwise provided, the Administrative Court must either dismiss an application as ill-founded or quash the impugned decision if it is unlawful, by reason of its contents, because of a lack of jurisdiction by the authority which gave it, or on account of a breach of procedural rules.
Section 63 (1) of the same Act provides that, if the Administrative Court quashed the impugned decision the administrative authorities are bound by its legal view.
Section 103 (2) of the Motor Vehicles Act as amended in 1986 (Kraftfahrgesetz) provides as follows:
The ultimate sentence of this provision was enacted as a provision of constitutional rank after the Constitutional Court had, in its judgments of 3 March 1984 and 8 March 1985 quashed previous similar provisions on the ground that they were contrary to Article 90 § 2 of the Federal Constitution which prohibits inter alia that a suspect be obliged on pain of a fine to incriminate himself.
In its judgment of 29 September 1988 (VfSlg. 11.829) the Constitutional Court found that the first to third sentences of section 103 § 2 of the Motor Vehicles Act as amended in 1986 were, like the previous provisions, contrary to the right not to incriminate oneself which flowed from Article 90 § 2 of the Federal Constitution and from Article 6 of the European Convention of Human Rights but were saved by the ultimate sentence of that provision which had constitutional rank. In reaching that conclusion the Constitutional Court had examined whether the ultimate sentence of section 103 § 2 was contrary to the guiding principles of the constitution, but had found that this was not the case.
Section 134 § 1 of the Motor Vehicles Act, in the version in force at the material time, provided that a fine of up to ATS 30,000 with up to six weeks' imprisonment in default could be imposed on a person who violates the regulations of this Act.
Section 24 § 1 (a) of the Road Traffic Act (Strassenverkehrsordnung) provides that it is prohibited to stop or park a vehicle within any area delimited by the traffic sign “stopping and parking prohibited”.
Section 99 § 3 (a) of the Road Traffic Act in the version in force at the material time, provided that anyone who, as driver of a vehicle, violated the regulations of this Act committed an administrative offence and was liable to a fine of up to ATS 10,000 with up to two weeks' imprisonment in default.


ITEMID: 001-22711
LANGUAGEISOCODE: ENG
RESPONDENT: SVK
BRANCH: ADMISSIBILITY
DATE: 2002
DOCNAME: LACKO AND OTHERS v. SLOVAKIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicants are Slovakian nationals of Romany ethnic origin. The first applicant, Mr Ján Lacko, was born in 1976. The second applicant, Ms Júlia Demeterová, was born in 1956. They reside in Medzilaborce. The third applicant, Mr Miroslav Lacko, was born in 1968 and resides in Prešov. They were represented before the Court by Ms G.J. Garland and Mr B. Pleše of the European Roma Rights Center in Budapest as well as by Mr J. Hrubala and Mr J. Sidoriak, lawyers practising respectively in Banská Bystrica and Košice (Slovakia). The respondent Government were represented by Mr P. Vršanský, their Agent.
The facts of the case, as submitted by the parties, may be summarised as follows.
In 1981, seven Romani families, including the first and the second applicant, came to work in an agricultural co-operative located in the municipality of Krásny Brod. Shortly after their arrival, each of the families received permanent residence under Slovakian law in what are today the municipalities of Ňagov and Rokytovce.
At the end of 1989 the agricultural co-operative in Krásny Brod ceased operations. As a result, the above Roma families lost their jobs. Since their living quarters at the co-operative were linked to their employment, they were compelled to leave them. The living quarters were subsequently destroyed.
In May 1991 the first and second applicant and the other Roma returned to the municipalities of Rokytovce and Ňagov where they were legally registered. At various periods of time over the next six years they lived in temporary housing provided by local government authorities in the district of Medzilaborce. On several occasions, hostility towards the Roma on the part of local officials or non-Romani residents forced the Romani families to flee. Thus, between May and December 1991, the Medzilaborce District Department of Social Affairs reserved a trailer in Čabiny for the Romani families at a cost of 10,000 Slovakian korunas. Although the Roma raised the money to rent the trailer, the villages of Krásny Brod, Čabiny, Sukov, Rokytovce and Ňagov did not allow them to place the trailer on their territory. After the Roma had built temporary dwellings for themselves in Čabiny, the dwellings were torn down by non-Romani residents. For a period of six years the Roma were therefore moving frequently from one place to another, in search of a permanent and secure home.
In the spring of 1997 the Romani families again established temporary dwellings on agricultural land located in the village of Čabiny. Local authorities, apparently responding to anti-Roma sentiment among the non-Romani majority, called a meeting on 30 May 1997, to deal with what they referred to as “the problem of Roma in the district of Medzilaborce.”
The written record indicates that the meeting took place in the premises of the Medzilaborce District Office and that it was attended by the mayors of Čabalovce, Čabiny and Ňagov. The director of the Social Welfare Department of the Medzilaborce District Office and a representative of the Head of the District Office were also present.
At the meeting, the director of the Social Welfare Department recounted the different attempts to solve the problem of the homeless Roma from the time of the destruction of their dwellings in the Sukov community in 1993. Noting the legal obligations of local authorities to address problems of shelter laid down in Slovakian law he observed, in particular, that there were Roma homeless in the register of Čabiny community and that those Roma had permanent residence in Ňagov, Rokytovce and Čabalovce.
The mayor of Čabiny characterised as illegal the movement of Roma to the village of Čabiny and warned of the “very negative reaction of citizens in the community” who might try to “resolve this problem by expelling them forcibly or burning the cabins.” The mayor also noted that there had been several conflicts between Čabiny citizens and the Roma. He alleged that the surface water in a nearby river basin had been polluted by the latter and asked colleagues to resolve this problem as soon as possible.
The minutes further indicate that the mayors of Čabalovce and Ňagov agreed to accommodate the homeless Roma, and the director of the Social Welfare Department undertook to visit the mayor of Rokytovce to explain to him the problem discussed.
On 8 June 1997 an extraordinary meeting of the municipal council of Rokytovce adopted Resolution No. 21. Its relevant parts provide as follows:
“The municipality representatives unanimously agree and declare that the Roma [concerned] are not the native inhabitants of Rokytovce, since they only moved to Rokytovce from the villages Rovné and Zbudské Dlhé. In 1981, one family moved into the village as the employees of the co-operative Krásny Brod, with the assistance of the former director of the co-operative ...
In 1981 ... the deputy mayor in Krásny Brod gave the Roma permanent residence in Krásny Brod, since Rokytovce was only a part of Krásny Brod, and did not exist as a separate village. The family’s permanent residence was registered in a house, which is occupied. [The deputy mayor] awarded the Roma permanent residence because the year 1981 was an election year.
In 1989 the Roma left Rokytovce and moved to the village Sukov to look for a job.
After the separation [of Rokytovce and Krásny Brod] in 1990, the Roma neither resided in the village nor claimed their permanent residence here. Due to this, we do not consider them to be our inhabitants.
According to the evidence from the house register, only two persons (out of five potentially returning to the village) have their permanent residence in Rokytovce: Júlia Demeterová and Valéria Demeterová.
Finally, the municipal council declared that, in the event the Roma forcibly settle in the village, they would be expelled beyond the district of the village with the help of all inhabitants.”
On 24 June 1997 a second meeting of the mayors was convened in the Medzilaborce District Office to address “the problem of Roma homeless in Čabiny community.” It was attended by the mayors of Čabiny, Ňagov and Čabalovce, a representative of the mayor of Rokytovce, the director of the Social Welfare Department as well as by the Head of the Medzilaborce District Office.
According to the minutes, the director of the Social Welfare Department recalled that both Ňagov and Rokytovce municipalities had resisted providing accommodation for the persons at issue in Čabiny notwithstanding that the latter were entered in their housing registers. The mayor of Ňagov explained that the community had no place in its property where Roma could be placed. The delegate of the mayor of Rokytovce reasoned that, insofar as the village of Rokytovce had “inherited Roma” from the Krásny Brod co-operative, the problem should be solved by the co-operative. The mayor of Ňagov and the delegate of the mayor of Rokytovce offered to start negotiations with the management of the co-operative. The participants agreed to meet again on 21 July 1997.
On 16 July 1997 the municipal council of Ňagov adopted Resolution No. 22, in which it forbade Romani citizens to enter the village of Ňagov or to settle in shelters within the territory of the village. The resolution provided that its effect was of permanent duration and that the mayor was responsible for its enforcement.
On 21 July 1997 the dwellings built and occupied by the first and second applicant and the other Roma in the municipality of Čabiny were set on fire, burned and destroyed.
The applicants submit that they have at their disposal no record indicating that the prosecution authorities have taken necessary measures with a view to investigating the offence.
The Government maintain that the cabins had been built unlawfully and that the incident was not examined by the police as the persons concerned did not file a complaint. They further refer to statements by local inhabitants according to which the Roma involved had carried away all their clothes and valuable property before the cabins burned down. The inhabitants expressed the view that the Roma had probably set their cabins on fire deliberately with a view to forcing the public authorities to resolve their housing problem.
In an interview published in the daily Korzo on 31 July 1997 the director of the Social Welfare Department of the Medzilaborce District Office expressed the view that the citizens of Čabiny had been able to solve the situation with violence which was not acceptable. He further explained that the State administration had no possibility of ordering the mayors to abide by the law.
On 22 July 1997 a third meeting was convened in the Medzilaborce District Office. The minutes state that the above resolution of the Ňagov municipality was contrary to the relevant law because Roma homeless had permanent residence in that village. The minutes continued that “considering that the present illegal dwelling in the Čabiny community was terminated by the community, the Roma homeless were recommended to address themselves to municipal offices in the communities where they have permanent residence”.
In late summer 1997, the Legal Defence Bureau for Ethnic Minorities of the Good Roma Fairy Kesay Foundation in Košice, Slovakia, (“the Košice Legal Defence Foundation”), where the third applicant was employed as a researcher, sent a letter to the General Prosecutor’s Office in Bratislava requesting an investigation into the legality of the above resolutions of the Rokytovce and Ňagov municipalities. The letter asserted that the resolutions were acts of public discrimination against Roma, and that they violated the rights to freedom of movement and residence and to protection against discrimination.
On 19 September 1997 the General Prosecutor’s Office informed the Košice Legal Defence Foundation that the investigation had been assigned to the District Prosecutor in Humenné.
In a letter dated 17 November 1997 the Košice Legal Defence Foundation provided the Humenné District Prosecutor with the names of five persons from Ňagov, including the first applicant, and four persons from Rokytovce, including the second applicant, and explained that they considered that their fundamental human rights had been violated by the above municipal resolutions.
On 24 November 1997 the Košice Legal Defence Foundation submitted a petition to the Constitutional Court (Ústavný súd) pursuant to Article 130 (3) of the Constitution. It claimed that the above Ňagov and Rokytovce municipal resolutions be quashed as they violated Articles 12 (2), 23 and 33 of the Constitution.
On 18 December 1997 the Constitutional Court dismissed the petition. The decision stated that, in view of its contents, the Constitutional Court had entertained it as a constitutional complaint under Article 127 of the Constitution.
The Constitutional Court noted that the rights invoked by the petitioner were designed to protect only natural persons. Since the Košice Legal Defence Foundation was a legal person, it could not have suffered an infringement of those rights. The decision stated that individuals affected by the decisions in question were free to file a constitutional complaint alleging a violation of their fundamental rights or freedoms.
On 29 December 1997 the Humenné District Prosecutor notified the Košice Legal Defence Foundation that, in view of the Constitutional Court’s ruling, it had suspended the investigation concerning the challenged resolutions.
On 5 May 1998 the first and the third applicant filed, together with another person, a petition with the Constitutional Court pursuant to Article 130 (3) of the Constitution. They claimed that the Constitutional Court should find a violation of their rights under Articles 12, 23 (1) and 33 of the Constitution in that the Resolution No. 22 of the Ňagov municipal council unlawfully restricted the freedom of movement and residence of a group of people solely because they were Roma. They argued that all Roma in Slovakia suffered infringements in this respect.
On the same date, the second applicant filed a separate petition to the Constitutional Court with reference to the Rokytovce municipal council’s Resolution No. 21 of 8 June 1996. She argued that the resolution violated her rights to freedom of movement and residence, freedom from racial and ethnic discrimination and freedom in the choice of nationality.
By two decisions delivered on 16 June 1998 a different chamber of the Constitutional Court dismissed both petitions. As to the first and second applicant, the Constitutional Court held that they had not shown that the respective municipal authorities had applied the resolutions in question in a manner which would infringe the rights invoked by them. As regards the third applicant, the Constitutional Court noted that he had permanent residence outside the Medzilaborce district and found no evidence that he had tried to enter or move into the community of Ňagov, or that the community had tried to stop him from doing so. It concluded that the third applicant could not claim to be a victim of a violation of his constitutional rights.
After the adoption of the resolutions in question the first and the second applicant, as well as their families, wanted to return respectively to Ňagov and Rokytovce. However, they did not return because they feared that the resolutions would be enforced, possibly by violence.
On 10 September 1998 the Ňagov municipal council amended its above Resolution No. 22 of 16 July 1997 by declaring that it could not agree with the accommodation of Romani citizens within the village as the latter had no work and possessed neither property nor housing facilities in Ňagov, and did not come from there.
On 22 March 1999 the Committee for human rights of the National Council of the Slovak Republic requested the Humenné District Prosecutor to review the lawfulness of the municipal resolutions in question and to take action which might be necessary.
On 8 April 1999 the Humenné District Prosecutor participated at the respective meetings of the municipal councils in Ňagov and Rokytovce at which the contested resolutions were quashed by unanimous vote. In particular, the resolution of 8 April 1999 adopted by the municipal council of Rokytovce expressly stated that the resolution No. 21 of 8 June 1997 had not respected human rights and freedoms.
On 8 November 2000 the Government passed a resolution by which it made available 3,300,000 Slovakian korunas with a view to resolving the housing problem of the Romani families from the area of Ňagov and Rokytovce. A housing facility in Medzilaborce was purchased and rebuilt for this purpose. As from 10 April 2001 it has been put at the disposal of the Romani families who had previously lived in wooden cabins situated in the area in question, including the families of the first and second applicant.
Constitutional provisions
The following relevant provisions of the Constitution were in force at the period under consideration.
Article 12 (2) prohibits discrimination in the enjoyment of fundamental rights and freedoms.
Article 16 (2) prohibits torture, inhuman or degrading treatment or punishment.
Under Article 19 (2), every person has the right to protection against unjustified interference with his or her private and family life.
Article 21 (1) guarantees the right to respect for one’s home.
Article 23 (1) guarantees the freedom of movement and residence.
Article 33 provides that no one may suffer harm on the ground that he or she belongs to a national or ethnic minority.
Pursuant to Article 127, the Constitutional Court shall review the challenges to final decisions made by central governmental authorities, local governmental authorities and local self-governmental bodies in cases concerning violations of fundamental rights and freedoms of citizens, unless the protection of such rights falls under the jurisdiction of another court.
Article 130 (3) provides that the Constitutional Court may commence proceedings upon a petition (“podnet”) submitted by legal entities or individuals claiming a violation of their rights.
The Constitutional Court Act of 1993, as in force at the relevant time
Pursuant to Section 49, a constitutional complaint could be filed by individuals or legal persons alleging a violation of their fundamental rights or freedoms, by a decision of one of the authorities set out in Article 127 of the Constitution, unless the protection of such rights or freedoms fell under the jurisdiction of another court.
Under Section 53 (3), a constitutional complaint was to be lodged within two months from the day when the decision in question became final or, as the case might be, from the moment when a person’s fundamental rights or freedoms were violated as a result of such a decision.
Section 57 (1) entitled the Constitutional Court to quash the challenged decision when it found, in proceedings brought upon a constitutional complaint, that a person’s fundamental rights or freedoms had been violated.
Practice of the Constitutional Court
In its finding no. I. ÚS/93 of 15 June 1994 the Constitutional Court found, upon a constitutional complaint lodged pursuant to Article 127 of the Constitution, that a municipal council’s decision concerning a local vote had violated the complainants’ constitutional right to participate in the administration of public matters. In the same finding the Constitutional Court quashed the relevant municipal decision pursuant to Section 57 of the Constitutional Court Act of 1993. A similar Constitutional Court’s finding was delivered, in respect of a decision of a different municipality, on 19 March 1998 (no. I. ÚS 46/96).
The Constitutional Court consistently held that, in the context of proceedings under Article 130 (3) of the Constitution, it lacked jurisdiction to draw legal consequences from its finding of a violation of a petitioner’s constitutional right. It could neither grant damages to the person concerned nor impose a sanction on the public authority liable for the violation found. The Constitutional Court considered that it was therefore for the authority concerned to provide redress to the person whose constitutional rights were violated.
Practice of the Committee on the Elimination of Racial Discrimination
In its opinion adopted on 8 August 2000 the Committee on the Elimination of Racial Discrimination found, upon a communication concerning the same facts as the present case but submitted by a different person, that the municipal resolutions in question, while in force, had violated Article 5 (d) (i) of the International Convention on the Elimination of All Forms of Racial Discrimination which reads as follows:
“In compliance with the fundamental obligations laid down in article 2 of this Convention, States Parties undertake to prohibit and to eliminate racial discrimination in all its forms and to guarantee the right of everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the law, notably in the enjoyment of the following rights: ...
(d) Other civil rights, in particular:
(i) The right to freedom of movement and residence within the border of the State;”
The Committee further noted that the resolutions had been rescinded in April 1999 and invited the Slovakian authorities to take necessary measures to ensure that practices restricting the freedom of movement and residence of Roma under their jurisdiction be fully and promptly eliminated.


ITEMID: 001-104653
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF CHERNYSHOV v. POLAND
IMPORTANCE: 4
CONCLUSION: No violation of Art. 5-3
JUDGES: Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä;Zdravka Kalaydjieva
TEXT: 5. The applicant was born in 1977. He is currently detained in Hrubieszów Prison.
6. On 19 August 1998 the applicant was arrested on suspicion of murder.
7. On 20 August 1998 the Słubice District Court (Sąd Rejonowy) remanded him in custody, relying on the reasonable suspicion that he had committed the offence in question. It considered that keeping the applicant in detention was necessary to secure the proper conduct of the proceedings, given the risk that he might tamper with evidence or go into hiding. As regards the latter, the court relied on the fact that he did not have his place of residence in Poland. It also stressed the severity of the anticipated prison sentence.
8. The applicant’s appeal against the detention order, likewise his further appeals against decisions extending his detention and all his subsequent applications for release and appeals against refusals to release him, were unsuccessful.
9. In the course of the investigation, the applicant’s detention was extended on 14 October 1998 to 15 January 1999. The Słubice District Court relied on the original grounds given for the applicant’s detention. It also underlined that the applicant was a foreign national and therefore there was a risk of his absconding if released.
10. The applicant asserted that at the early stage of the investigation he had admitted to having committed the offence he had been charged with. He further submitted that he had agreed to cooperate with the authorities in order to have his future sentence mitigated.
11. On 28 December 1998 the Słubice District Prosecutor lodged a bill of indictment with the Gorzów Wielkopolski Regional Court (Sąd Okręgowy). The applicant was charged with murder. The bill of indictment comprised several charges brought against three defendants.
12. The applicant was tried on the basis of the relevant provisions of the Criminal Code of 6 June 1997 (the so-called “New Criminal Code”) which entered into force on 1 September 1998, replacing the Criminal Code of 19 April 1969 (the so-called “Old Criminal Code”). According to Article 4 of the New Criminal Code, in the event that a case is being examined at a time when the New Criminal Code is in force but concerns an offence which was committed prior to its entry into force, the new law shall nevertheless apply if it is more lenient for the perpetrator (względniejszy dla sprawcy).
13. On 18 February and 18 March 1999 the trial court held hearings. The applicant pleaded guilty before the trial court. In particular, he testified that he had committed the murder together with a certain W.B. and a certain A.T.
14. During the trial the authorities further extended the applicant’s detention pending trial on 13 January 1999 (to 15 June 1999). The courts repeated the grounds previously given for the applicant’s continued detention.
15. On 18 March 1999 the Gorzów Wielkopolski Regional Court gave judgment. The applicant was convicted as charged and sentenced to 15 years’ imprisonment. The court noted, inter alia, that although the applicant pleaded guilty, his testimonies had not been fully coherent and contained a number of inconsistencies. It therefore considered that the conditions for the extraordinary mitigation of sentence had not been met in the case.
16. The applicant, other co-accused and the District Prosecutor appealed.
The applicant’s legal-aid counsel argued that the first-instance court had not mitigated the applicant’s sentence as required by Article 60 § 3 of the New Criminal Code, despite the fact that the applicant had cooperated with the authorities. According to that provision, a domestic court shall mitigate the sentence if the defendant committed the offence with accomplices, and revealed to the prosecution information about the persons involved in the commission of the offence and any significant circumstances in which the offence was committed.
17. The applicant was kept in detention pending appeal.
18. On 23 November 1999 the Poznań Court of Appeal (Sąd Apelacyjny) heard the appeals. It quashed the first-instance judgment and remitted the case for retrial. The appellate court observed at the outset that the appeals lodged by the applicant and the District Prosecutor contested only the severity of the penalty imposed and not the applicant’s guilt which was clearly established. It further considered the arguments advanced on behalf of the applicant to be reasonable. However, it found that the evidence examined by the first-instanceIt further ordered that the applicant’s detention should continue until 30 April 2000. The court repeated the grounds previously given for the applicant’s continued detention. In addition, it underlined the need to obtain a report from an expert in graphology.
19. On 15 February, 21 March and 11 April 2000 the trial court held hearings.
20. On 18 April 2000 the Gorzów Wielkopolski Regional Court convicted the applicant as originally charged and sentenced him to 15 years’ imprisonment. The other defendants were likewise convicted.
21. The applicant, other co-accused and the District Prosecutor appealed. The applicant remained detained pending appeal.
22. It appears that the applicant changed his testimony in that he no longer claimed that A.T. had been an accomplice to the offence he had been charged with. He continued to admit his own guilt.
23. On 9 November 2000 the Poznań Court of Appeal again quashed the first-instance judgment and remitted the case for retrial. It ordered that the applicant’s detention should continue until 31 January 2001.
24. On 14 March, 15 March and 27 April 2001 the trial court held hearings.
25. In the retrial proceedings the applicant made numerous, unsuccessful applications for release and appealed, likewise unsuccessfully, against decisions extending his detention. The relevant decisions on the extension of his detention were given by the Gorzów Wielkopolski Regional Court on 30 January 2001 (to 30 April 2001), on 27 April 2001 (to 27 July 2001), on 10 July 2001 (to 10 October 2001) and on 9 October 2001 (to 9 January 2002).
26. On 5 December 2001 the Gorzów Wielkopolski Regional Court convicted the applicant as originally charged and sentenced him to 25 years’ imprisonment. As concerns the other defendants, the court convicted W.B. but acquitted A.T.
27. The applicant appealed. The applicant’s legal-aid counsel argued, inter alia, that the trial court had erred in that it had not mitigated the applicant’s sentence. The lawyer noted that the material in the case file clearly indicated that the applicant had cooperated with the authorities and therefore had complied with the requirements of Article 60 § 3 of the New Criminal Code. Admittedly, the applicant had changed his pleadings after the judgment of 18 April 2000. That, however, should not have had any bearing on the outcome of the case, since the applicant had undoubtedly been coerced into changing his testimony by his co-defendants.
28. On 16 May 2002 the Poznań Court of Appeal upheld the firstinstance judgment. It acknowledged that the applicant had given an account of his own wrongdoing. The court observed however that the remainder of his testimony, in particular in part regarding the responsibility of other co-accused had not been credible and had not been taken into consideration by the trial court. The appellate court concluded that the applicant’s testimonies had not been wholly credible and therefore he was not entitled to an extraordinary mitigation of his sentence.
29. By letter of 3 December 2002 the applicant’s legal-aid lawyer informed the Poznań Court of Appeal that he had not found any grounds for lodging a cassation appeal in the case.
30. It appears that throughout the trial the applicant was represented by a lawyer assigned to him under the legal-aid scheme. The applicant submitted that between 1999 and 2000 his legal-aid lawyer had never met him to prepare the case and had put forward an ineffective defence.
31. On 19 August 1998 the applicant was committed to Międzyrzecz Remand Centre. Since that date he has been continuously detained in several penitentiary facilities. On 10 December 2007 the applicant was transferred to Hrubieszów Prison where he is currently detained.
32. The parties gave partly differing accounts of the conditions of the applicant’s detention.
33. The applicant maintained that during most part of his detention he was held in overcrowded cells in conditions which did not comply with the basic standards of hygiene.
34. The Government submitted that they could not formally confirm whether during his detention from 19 August 1998 to 28 November 2000, from 22 March to 25 April 2001, from 6 June to 29 November 2001, from 28 February to 15 May 2002, from 27 August to 29 November 2002, from 7 to 18 March 2003 and from 26 August 2005 to 2 February 2006 the applicant was detained in cells with a surface area of at least 3 m² per person. The Government further submitted that the period of the applicant’s detention in cells in which the statutory minimum requirement of 3 m² per person had not been respected amounted to some 979 days. Finally, they maintained that the applicant was currently detained in a cell in which the statutory minimum requirement of 3 m² per person was respected. This submission was not contested by the applicant.
35. At the beginning of his detention the applicant lodged numerous complaints with the penitentiary authorities regarding the conditions of his detention. He submitted that he had later given up as his complaints had no prospects of success and he had feared being persecuted by the prison authorities. The applicant did not bring a civil action in tort to seek compensation for the infringement of his personal rights.
36. The relevant domestic law and practice concerning the imposition of detention on remand (tymczasowe aresztowanie), the grounds for its prolongation, release from detention and rules governing other, so-called “preventive measures” (środki zapobiegawcze) are stated in the Court’s judgments in the cases of Kudła v. Poland [GC], no. 30210/96, §§ 75-79, ECHR 2000-XI; Bagiński v. Poland, no. 37444/97, §§ 42-46, 11 October 2005; and Celejewski v. Poland, no. 17584/04, §§ 22-23, 4 May 2006.
37. A detailed description of the relevant domestic law and practice concerning general rules governing the conditions of detention in Poland and domestic remedies available to detainees alleging that conditions of their detention were inadequate are set out in the Court’s pilot judgments given in the cases of Orchowski v. Poland (no. 17885/04) and Norbert Sikorski v. Poland (no. 17599/05) on 22 October 2009 (see §§ 75-85 and §§ 45-88 respectively). More recent developments are described in the Court’s decision in the case of Łatak v. Poland (no. 52070/08) on 12 October 2010 (see §§ 25-54).
NON_VIOLATED_ARTICLES: 5
NON_VIOLATED_PARAGRAPHS: 5-3


ITEMID: 001-71689
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2005
DOCNAME: UTTLEY v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Josep Casadevall;Nicolas Bratza
TEXT: The applicant, Mr Brian Uttley, is a British national who was born in 1933 and lives in Leeds. He was represented before the Court by Mr S. Creighton of Messrs Bhatt Murphy, solicitors in London.
The applicant committed a series of sexual offences before 1983: three rapes, six indecent assaults, one act of sexual intercourse with a girl under sixteen, four acts of gross indecency with a child, and three offences involving photographs or pseudo-photographs of a child. He was tried and convicted in 1995, and on 24 October 1995 was sentenced to 11 years’ imprisonment on one count of rape and to two periods of 9 years’ imprisonment on the other two counts. On each of the six counts of indecent assault on a woman he was sentenced to two years’ imprisonment. On the count of sexual intercourse with a girl under the age of sixteen he was sentenced to one year’s imprisonment, and on three of the counts of committing gross indecency with a child he was sentenced to 18 months’ imprisonment, and on the other to 12 months’ imprisonment. On the count relating to the taking of the indecent photograph of a child he was sentenced to one year’s imprisonment and he was also sentenced to one year’s imprisonment on one of the two counts relating to distribution of such a photograph. All the above periods of imprisonment were to run concurrently. In respect of the second of the counts relating to distribution of such a photograph he was sentenced to one year’s imprisonment to run consecutively to the other offences. The overall effect was that he was sentenced to a total of 12 years’ imprisonment. No appeal against sentence was made.
At the time when the applicant committed the various acts, they all constituted offences under their respective statutory provisions, and at that same time the court would have been entitled to impose periods of imprisonment for the offences which exceeded the periods actually imposed in 1995. In particular, by reason of section 34(3) of, and § 1(a) of Schedule 2 to, the Sexual Offences Act 1956, the maximum sentence for rape in 1983 was life imprisonment. The maximum sentence at the time for distributing an indecent photograph or pseudo-photograph of a child was three years’ imprisonment. The position remained the same for both offences in 1995.
At the time the applicant committed the offences the combined effect of section 25(1) of the Prison Act 1952, rule 5 of the Prison Rules 1964 and section 60 of the Criminal Justice Act 1967 meant that a person sentenced to 12 years’ imprisonment would have been entitled, provided he had been of good behaviour, to be released when he had completed two thirds of his sentence, and the sentence would then have expired. Release on licence would have been possible after expiry of one third of the sentence, that is, after four years.
As a result of the relevant provisions of Criminal Justice Act 1991, which entered into force in 1992, release on licence is an entitlement after two thirds of the sentence, and the licence remains in force until the expiry of three quarters of the sentence. In the applicant’s case, this meant that he was released on licence on 24 October 2003, when he had completed two thirds of his 12 year sentence, and the licence remained in force until 24 October 2004. During that period, he was liable to be recalled to prison if he failed to comply with the conditions. After the end of the licence period, he could be required to serve, in whole or in part, the remainder of the 12 year sentence if convicted of an imprisonable offence.
The applicant took the view that the changes brought about by the Criminal Justice Act 1991, which had the effect of imposing licence conditions on release for an additional year, with a continuing residual liability to serve the outstanding term if convicted of further offences, amounted to a heavier penalty than the one that was applicable at the time the criminal offences were committed. On 19 December 2002 he therefore applied for judicial review on that ground, referring to Article 7 of the Convention.
The claim was considered by Mr Justice Moses in the High Court on 8 April 2003. Moses J held that the purpose of the licence was “to enable the prisoner to stay out of trouble for his own benefit and for the benefit of the community ... True it is that, if he breaches the licence, he is at risk of recall, but the licence is itself designed to avoid the risk of further offences and a return to prison”. The court held that the imposition of a licence as part of the sentence did not amount to a penalty, and dismissed the claim.
On 4 July 2003 the Court of Appeal held that Article 7 had been violated and made a declaration that the relevant sections of the 1991 Act were incompatible with the applicant’s Article 7 rights. Lord Justice Pill stated:
“... a sentence which includes a period of licence inevitably extending beyond two thirds of the term imposed is, in my judgment, a heavier penalty than a sentence without that requirement. The fiction that the penalty is one of 12 years in custody in each case must not be allowed to obscure the reality of the effects of the licence. While licence conditions vary, and in some cases will be more onerous than others, it is not and cannot be disputed that conditions will inevitably be imposed which are impediments on the offender’s freedom of action. Moreover, the conditions create a potential liability to serve a further substantial period in custody, as to the provisions dealing with the effects of reconviction. Arguments that the purpose of the licence conditions is rehabilitative and preventative, as they undoubtedly are, do not detract from their onerous nature when viewed as part of the sentence. Whatever the purpose, the effect is onerous.”
In the House of Lords, the Secretary of State made four principal contentions:
- That the penalty imposed was well within the maximum allowed by law in 1983;
- That the applicant was complaining about early release provisions, which concern the administration of sentences and are not covered by Article 7;
- That the trial judge was required, by a Practice Statement which was issued on the day when the 1991 Act came into force (Practice Statement: (Crime: Sentencing) [1992] 1 WLR 948), to take changes in early release provisions into account when sentencing, and
- That licensing provisions are not a penalty, but are designed to assist the offender in his rehabilitation and to protect the public against the risk of his re-offending.
The House of Lords allowed the Secretary of State’s appeal on 22 July 2004. Referring to Coëme and Others v. Belgium (nos. 32492/96, 32547/96, 32548/96, 33209/96 and 33210/96, § 145, ECHR 2000VII), the Lords considered that the contention that they had to resolve was whether the word “applicable” in the second sentence of the first paragraph of Article 7 referred to the sentence that would have been actually applied at the time, or the maximum sentence that was available in law. They concluded that Article 7 only prohibited a retrospective increase in the maximum penalty that was available following conviction and not a particular penalty that might be awarded within that maximum. Lord Phillips summarised the position thus:
“It follows that Article 7 § 1 will only be infringed if a sentence is imposed on a defendant which constitutes a heavier penalty than that which could have been imposed on the defendant under the law in force at the time the offence was committed ... The maximum sentence that could be imposed for rape at the time the respondent committed the rapes for which he was committed was life imprisonment. That was the applicable penalty for the purposes of Article 7 § 1. The sentence of 12 years imposed on the respondent would seem manifestly a less heavy penalty than life imprisonment.”
“Rules made under section 47 of this Act may make provision whereby, in such circumstances as may be prescribed by the rules, a person serving a sentence of imprisonment for such a term as may be so prescribed may be granted remission of such part of that sentence as may be so prescribed on the ground of his industry and good conduct, and on the discharge of a person from prison in pursuance of any such remission as aforesaid his sentence shall expire.”
“(1) A prisoner serving a sentence of imprisonment for a term of more than one month may, on the ground of his industry and good conduct, be granted remission in accordance with the provisions of this Rule:
Provided that nothing in this Rule shall authorise the reduction of the term which the prisoner is serving to less than 31 days.
(2) Remission granted under this Rule shall not exceed one-third [of the sentence] ... .
(...)
(4) This Rule shall have effect subject to any disciplinary award of forfeiture of remission and shall not apply –
(...)
(b) to a prisoner serving a sentence of imprisonment for life.”
In practice, remission was invariably granted of a period of one third of the sentence, subject to the power of a governor to award loss of remission for commission of a disciplinary offence.
“(1) The Secretary of State may, if recommended to do so by the Parole Board, release on licence a person serving a sentence of imprisonment, other than imprisonment for life, after he has served not less than one third of his sentence or twelve months thereof, whichever expires the later.”
A long term prisoner (that is, a prisoner serving four years or more) is entitled to apply for early release once he has served half (not one third) of his sentence (section 35 of the Criminal Justice Act 1991 (“the 1991 Act”).
By section 33 (2) of the 1991 Act, a long term prisoner is entitled to be released as soon as he has served two thirds of his sentence. Such a prisoner must be released on licence, and the licence (like a licence under section 35 of the 1991 Act) remains in force until the expiry of three quarters of the sentence.
A long term prisoner who is released on licence and recalled must be re-released as soon as he has served three quarters of the sentence (section 33(3)).
Section 116 of the Powers of Criminal Courts (Sentencing) Act 2000, which replaces section 40 of the 1991 Act, empowers a court to make an order returning an offender to custody to serve the balance of his sentence if he commits an offence after his release but before the date on which the sentence would have been served in full.