ITEMID: 001-61550
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: GRANDCHAMBER
DATE: 2003
DOCNAME: CASE OF GRIEVES v. THE UNITED KINGDOM
IMPORTANCE: 1
CONCLUSION: Violation of Art. 6-1;Costs and expenses partial award - Convention proceedings
JUDGES: Luzius Wildhaber;Nicolas Bratza;Paul Mahoney
TEXT: 10. The applicant was born in 1968 and lives in Devon. At the relevant time he was a serving member of the Royal Navy.
11. On 18 June 1998 he was convicted, pursuant to section 42 of the Naval Discipline Act 1957, by a naval court-martial of unlawfully and maliciously wounding with intent to do grievous bodily harm contrary to the Offences Against the Person Act 1861. He was sentenced to, inter alia, three years' imprisonment and to be dismissed from the service and reduced in rank. He was also ordered to pay GBP 700 compensation.
12. The court-martial comprised a President (a Captain of the Royal Navy), four naval officers (a Commander, 2 Lieutenant Commanders and a Lieutenant) and a Judge Advocate (Commander Flanagan). The Judge Advocate was a naval barrister who was working as the naval legal advisor to FLEET (the command responsible for the organisation and deployment of all ships at sea). His rank was lower than that of the President of the court-martial. The prosecution was conducted by a Lieutenant Commander of the staff of the Prosecuting Authority. The applicant chose to be represented by a naval barrister. The defending and prosecuting officers were junior in rank to the Judge Advocate and the defending officer was senior in rank to the prosecuting officer.
13. At the beginning of the court-martial the Judge Advocate directed the members of the court-martial as follows:
“As Judge Advocate it's my role to ensure that the trial is conducted in accordance with the law and I am here to advise and guide you. I will have no role in the finding on the facts. You must accept what I say on matters of law and procedures [as] being correct. If you have any questions of me during the trial ... they must be asked of me in open Court in the presence of the accused, his friend and the prosecutor and any such questions should pass through you ... as President. That means ... that now that this trial has commenced, you and your court can have no direct communication with me except in open Court and therefore if I seem to avoid you outside the environs of the Court ... that's the reasoning behind that and please don't think I am being rude ...
Now you and your colleagues may discuss the case when you are together and in private if you so wish, but my strong advice to you at this stage is to resist the temptation until you've heard all the evidence and indeed my own summing up. You must be particularly rigorous in not discussing the case at all during adjournments in the trial when you could be overheard by others such as during lunch in the Ward room where a room has been set aside for you and particularly overnight since you must not be influenced by anything said to you or which you observe which is not evidence in the trial. I will warn you of this ... each time we adjourn and particularly when we adjourn at the end of the days' proceedings.”
14. On 29 September 1998 the Navy Board decided not to vary the court-martial's verdict and sentence. In his advice to the Navy Board, the Judge Advocate of the Fleet commented that the trial had been “well conducted by all concerned”, that the main directions of law in the Judge Advocate's summing up were “impeccable” and that any errors were, in any event, favourable to the applicant.
15. On 30 June 1999 a single judge of the Courts-Martial Appeal Court rejected his appeal, as did the full court on 20 January 2000.
16. The Armed Forces Act 1996 (“the 1996 Act”) came into effect on 1 April 1997 and amended, inter alia, the Naval Discipline Act 1957 (references below to “the 1957 Act” are to that Act as amended). Naval courts-martial are regulated, inter alia, by the 1957 Act, by the Courts-Martial (Royal Navy) Rules 1997, as amended (“the 1997 Rules”) and by the Queen's Regulations for the Royal Navy (“QRRN”).
17. Section 42 of the 1957 Act provides that any person subject to naval law who commits a civilian offence, whether in the United Kingdom or elsewhere, shall be guilty of an offence against that section.
18. Section 43(1) of the 1957 Act lists the punishments available to a court-martial following conviction and establishes, as a matter of law, the relative positions of each punishment in the hierarchy of punishments available (the “Coda” to section 43(1) of the 1957 Act).
19. An allegation that a person subject to naval law has committed an offence must be reported to the CO of the accused. The CO must investigate the charge after which the CO may dismiss the charge, refer it to the Higher Authority or try the accused summarily.
20. The Higher Authority is a senior naval officer. Although he is not legally qualified, he is legally advised by a barrister. He must decide, in respect of cases referred to him by a CO, whether to refer the matter back to that CO to be dealt with summarily (unless the accused has already elected trial by court-martial); to refer the matter to the Prosecuting Authority for a decision as to whether the accused should be prosecuted; or to drop the charges. The Higher Authority's decision is essentially a command decision, the Higher Authority being required to ask himself whether there are service reasons for prosecuting or not. Once the Higher Authority has taken this decision, he has no further involvement in the case.
21. The role of prosecutor is performed by the Prosecuting Authority of the Royal Navy. The Prosecuting Authority is appointed by Her Majesty the Queen (section 52H of the 1957 Act) and is accountable to the Attorney-General for the performance of his prosecuting functions.
22. In almost all cases (88% of cases prosecuted in 2002 and up to mid-2003) the Prosecuting Authority appoints barristers to prosecute cases from his own staff, which barristers work exclusively for the Prosecuting Authority. On occasion, however, the Prosecuting Authority appoints prosecutors from a list of uniformed naval barristers who are eligible to act as prosecutors but who do not, in their general duties, work directly for the Prosecuting Authority (unlike in the army and air force where prosecutions are carried out exclusively by prosecutors on the staff of the relevant Prosecuting Authority). Such an officer may be working in a legal or non-legal post, but will always be outside the chain of command of the accused and will always be answerable for his duties as a prosecutor to the Prosecuting Authority.
23. Naval barristers appointed to act as prosecutors are members of the Bar of England and Wales and are consequently subject to the professional arrangements and ethical duties of the Bar Code of Conduct (including a duty to act with independence and in the interests of justice). The Prosecuting Authority and all acting prosecutors also apply the Code for Service Prosecutors which has been endorsed by the Attorney General and which sets out how their duties should be carried out.
24. Following the Higher Authority's decision to refer a case to it, the Prosecuting Authority has an absolute discretion, applying similar criteria as those applied in civilian cases by the Crown Prosecution Service, to decide whether or not to prosecute and, if so, to determine precisely what charges should be brought. The Prosecuting Authority conducts the prosecution (Part II, Schedule I to the 1996 Act), which is brought on behalf of the Crown.
25. The NCAO is a civilian and a civil servant, working in “one of the secretariats dealing with naval service discipline policy issues”. The NCAO is responsible for making the arrangements for courts-martial, including arranging venue and timing, ensuring that a Judge Advocate and any court officials required will be available, securing the attendance of witnesses and selecting members of the court. The NCAO is appointed by the Defence Council. Before commencement of the court-martial hearing, the power to dissolve it is vested in the responsible NCAO.
26. Naval courts-martial consist of a President, four to eight serving naval officers of at least three years' military experience and a Judge Advocate (since the entry into force of the Armed Forces Act 2001 - “the 2001 Act” - warrant officers may also sit as members). The distinction made between district and general courts-martial in the army and air force does not exist in the Royal Navy. Contrary also to the position in the army and air force, the Royal Navy does not appoint, and has never appointed, Permanent Presidents of courts-martial (“PPCMs”).
27. In the Royal Navy the role undertaken by the Judge Advocate General (“JAG”) for the army and air force is divided between two appointments: the Judge Advocate of the Fleet (“JAF”) and the Chief Naval Judge Advocate (“CNJA”).
28. The JAF is an experienced civilian lawyer. The current JAF has been a circuit judge since 1992. He was appointed as JAF in 1995 by Her Majesty the Queen on the recommendation of the Lord Chancellor, to whom the JAF is responsible. Section 73 of the 1957 Act provides:
“Nothing in this part of the Act shall prejudice the exercise by the [JAF] of his functions of considering and reporting on the proceedings of courts-martial and disciplinary courts, or any other of his functions in relation to such courts.”
The prime responsibility of the JAF is to review all naval courts-martial, save for those in which the accused pleads guilty, so as to be able to advise the Reviewing Authority whether or not they have been properly conducted according to law. If, in the opinion of the JAF, they have not been so conducted, he has the power to recommend to the Reviewing Authority that the conviction be quashed or that the finding of guilt or the sentence be altered.
29. The CNJA, on the other hand, is a service appointment. He is appointed by the First Sea Lord (Chief of Naval Staff) on the advice of the Naval Secretary and must be a barrister of suitable experience and rank. Save for his judicial role, he is responsible to the Second Sea Lord (Chief of Naval Personnel), who is the senior Admiral responsible for personnel policy. His judicial role is described as part of his "ancillary duties" for which he is solely responsible to the JAF.
The CNJA's primary purpose is to be the principal advisor within the Royal Navy on all matters of law, including naval, criminal, employment, maritime and international law. His secondary purpose is to “ensure that sufficient naval officers are trained as barristers and thereafter appropriately appointed to legal billets to provide the legal services required by commands, including headquarters”. Among his “principal” tasks” is to assist the JAF and consult with him on matters of law and legal policy, to select officers for legal training and to supervise their duties. Sitting as Judge Advocate at complex courts-martial and appointing barristers to sit as Judge Advocates are among his “ancillary tasks” (section 53B(1) of the 1957 Act).
30. Any Judge Advocate sitting in a court-martial must have been qualified for at least five years (section 53B(2) of the 1957 Act). In addition, as a matter of policy, reflected in the CNJA's terms of reference, the Royal Navy has for many years appointed only serving officers as Judge Advocates. The reasons for this policy have been described by the current CNJA (Commodore Jeffrey Blackett) as follows:
“... because they understand the particular and unique way of life of the Royal Navy, gained through their own operational experience. They can advise and direct the court in terms which reflect their detailed knowledge of the Service, and which therefore enhances the credibility of their role in the eyes of all the parties involved.”
31. The manner of appointment of a naval Judge Advocate is also different to the process in the army and the RAF. The appointment process is known as “ticketing”, a process which involves both the CNJA and the JAF. The CNJA regularly assesses the experience and qualities of those who are appropriately qualified, using the same criteria for judicial qualities as are applied by the Lord Chancellor for civilian judicial appointments. He then consults with the JAF as to suitability for appointment. The JAF will have had an opportunity to assess the qualities of such candidates and their suitability for ticketing since his review of the court-martial proceedings may also involve an assessment of the qualities of the prosecuting and defending barristers. With the JAF's agreement, the CNJA then writes to inform a successful candidate of his or her appointment or “ticketing”. Such an appointment is for an undefined period of time. A Judge Advocate, once ticketed, remains on the list until he or she leaves the service or voluntarily resigns from the list. No Judge Advocate has ever been removed from office, although some have voluntarily withdrawn because they have decided to concentrate on operational appointments within the Royal Navy. If the question ever arose, grounds for removal would be precisely the same as those for a civilian judge, and the decision would be taken by the JAF.
Once “ticketed”, these officers gain experience by assisting at a court-martial with an experienced Judge Advocate. They then proceed to cases where they sit as Judge Advocate where the accused pleads guilty, so that sentencing is the only matter at issue. It is then for the CNJA to assess when the Judge Advocate in question is ready to officiate in contested cases. At that point Judge Advocates are appointed to individual cases by the CNJA, by his letter of appointment, but the practice is that there is no selection as the Judge Advocate is appointed by rota on a “cab rank” basis, the only criteria being that the Judge Advocate is not excluded by section 53C(4) of the 1957 Act or Rule 15 of the 1997 Rules. Accordingly, a list is kept by the NCAO of “ticketed” Judges Advocates, and the name at the top of the list is appointed to the next court-martial. That Judge Advocate's name then goes to the bottom of the list and such persons will not be appointed until his or her name rises to the top of the list again. Such ticketed barristers may be serving in either legal or non-legal appointments: those serving in legal appointments sit as Judge Advocates on average for about 20-30 days each year and those serving in non-legal appointments will normally sit for less.
There are currently four practising Judge Advocates one of whom is serving in a Ministry of Defence appointment and is not therefore reported on by his Royal Navy superiors.
32. Judge Advocates are responsible solely to the JAF for the performance of their professional duties at courts-martial while in office. As noted above, the JAF reviews all contested courts-martial which result in a conviction. In advising the Reviewing Authority, the JAF will comment on the Judge Advocate's handling of the proceedings and his summing up. He may also pass “professional comments about the judicial performance to the CNJA”. At the time of the applicant's court-martial, there was a haphazard practice whereby the CNJA might provide a Judge Advocate's reporting officer, at that latter officer's request, with a synopsis of the JAF's comments on the Judge Advocate's performance. The Judge Advocate who officiated at the applicant's court-martial was not so reported upon and that practice has since ceased. The CNJA does not sit on any promotion board of any officer who has served as a Judge Advocate and has no control over or effect upon their promotion. Judge Advocates receive no additional or separate pay for duties in such office and their pay and promotion cannot be affected by their performance or status as a Judge Advocate.
QRRN 3630, which came into force after the present court-martial, provides as follows:
“3. It follows that Judge Advocates must be free from any supervision or restraint in order to carry out independently the duties required of them by law. In the conduct of their professional duties at courts-martial Judge Advocates are accountable, only in so far as the standard and performance of their duties is concerned, to the [JAF].
4. The [JAF] is solely responsible for reporting on the professional performance of Judge Advocates in the conduct of their duties in court-martial trials. No other personal report, assessment or other document is to be prepared or used to determine whether an officer conducting Judge Advocate duties is qualified to be promoted, or is qualified or suited for particular appointments or training. Where Judge Advocates are appointed to general appointments, or whilst carrying out their general duties, nothing in this article shall prevent the appropriate reports being prepared on them concerning their conduct of those duties, for promotion, appointing or training purposes.”
33. The appointment of the members of the court-martial proceeds by way of a random selection: the NCAO requests ships and establishments to nominate officers to serve as court-martial members. There was also a list of volunteers who had put their name forward as being available and prepared to sit as a court-martial member. (Since the entry into force of the 2001 Act, the appointment of members has been by way of a random selection from a computer generated database of eligible personnel).
Section 53C(4)(b) of the 1957 Act excludes from selection for courts-martial the CAOs, the COs of the accused, members of the Higher Authority, investigating officers and all other officers involved in inquiring into the charges concerned. Rule 15 of the 1997 Rules also excludes an officer serving under the command of the Higher Authority referring the case, the Prosecuting Authority or the CAOs. The members of the court-martial are not legally qualified although most will have attended a previous court-martial as an observer. They will also have attended a Divisional Officer's Course where they will have received instruction on summary trials and many will have attended the Junior Staff Course which includes a lecture on Naval Discipline.
34. The members of a court-martial remain subject to naval discipline in the general sense since they remain naval officers, but this is subject to their not being reported on in relation to the carrying out by them of their duties as members of the court-martial and, in particular, in relation to their judicial decision-making. Attempting to influence, or influencing, a member of a court-martial amounts to the common law offence of perverting the course of justice and/or to the offence of conduct to the prejudice of good order and naval discipline (section 39 of the 1957 Act).
35. The President is responsible for conducting the trial in a manner befitting a court of justice and in accordance with the traditions of the Royal Navy (Rule 28(1) of the 1997 Rules). The post of Permanent President of Courts-Martial (“PPCM”), which existed in the air-force and army (the Cooper judgment, §§ 30-32) was never created in the Royal Navy.
36. When the members have been nominated and the court-martial has been convened, the members are sent the NCAO Briefing Notes for court-martial members (paragraphs 47-62 below) along with a list of prosecution witnesses. The members are required to examine the list and to inform the NCAO if any of the witnesses is known to them. They are also advised that, should they subsequently discover that they do know someone, they should advise the Judge Advocate.
37. At the outset of the court-martial, the names of the members of the court-martial (of the Judge Advocate, the President and of the ordinary members) are read out and an accused can object to any member of the court-martial.
38. The President and each ordinary member of a court-martial take the following oath:
“I swear by almighty God that I will duly administer justice according to the law and without partiality, favour or affection; and I do further swear that I will not on any account, at any time whatsoever, disclose the vote or opinion of any member of this court-martial, unless thereunto required in due course of law.”
The Judge Advocate takes the following oath:
“I swear by almighty God that I will to the best of my ability carry out the duties of judge advocate according to law and without partiality, favour or affection; and I do further swear that I will not on any account at any time whatsoever disclose the vote or opinion of the President or [of] any member of this court-martial unless thereunto required in due course of law.”
39. Once the court-martial hearing has commenced, the power to dissolve it is vested in the Judge Advocate. At the court-martial the Judge Advocate sits apart from the court-martial members and has no contact with them (either during or outside the hours of sitting) other than appears on the record of the court-martial. A Judge Advocate's rulings on points of law are binding on the court-martial members and he or she delivers a summing up in open court before the court martial retires to consider its verdict.
40. Deliberations of the court-martial members are confidential, members being forbidden to reveal any opinion or vote. The Judge Advocate does not deliberate in private with the court-martial members on verdict and has no vote on this. The Judge Advocate will, however, sit in private with the court-martial members to deliberate on sentence and to give any advice on sentence required and he has a vote. Decisions on verdict and sentence are reached by majority vote (section 62 of the 1957 Act). The casting vote on sentence, if needed, rests with the President of the court-martial, who also gives reasons for the sentence in open court. The members of the court are required to speak, and at the close of deliberations to vote, on verdict and sentence in ascending order of seniority.
41. All guilty verdicts reached, and sentences imposed by, a court-martial must be reviewed by the “Reviewing Authority” within prescribed time limits (section 70 of the 1957 Act). The Reviewing Authority is the Defence Council which has delegated its functions to the Navy Board (also known as the Admiralty Board) which in turn has delegated that task to the Naval Secretary.
42. Contested cases resulting in a conviction are (as noted above) scrutinised by the JAF who provides written advice to the Reviewing Authority as to the safety of the conviction and the conduct of the trial. For guilty pleas resulting in conviction, legal advice is provided to the Reviewing Authority by a senior naval barrister who is himself an experienced Judge Advocate but who does not continue to practice as a Judge Advocate for the duration of his tenure as advisor to the Reviewing Authority, for reasons concerning his independence from the “naval judiciary”. The accused may also petition the Reviewing Authority within 28 days following sentencing and the Reviewing Authority's procedure does not begin until after receipt of that petition or after the 28 day time-limit for its receipt. Post-trial advice to the Reviewing Authority (either from the JAF or the experienced naval barrister) is disclosed to the accused. Account will be taken of the petition, where one is submitted, in the advice given to the Reviewing Authority.
43. The Reviewing Authority gives a reasoned decision (Rule 75 of the 1997 Rules) and its verdict and sentence are treated for all purposes as if they were reached or imposed by the court-martial.
The Reviewing Authority may substitute a finding of guilt which could have been made by the court-martial and if the court-martial must have been satisfied of the facts which would justify making that finding (section 71(2) of the 1957 Act). It may also “pass any such sentence (not being, in the opinion of the authority, more severe than the sentence originally passed) open to a court-martial on making such a finding as appears proper” (section 71(2) and (4) of the 1957 Act).
According to section 71A of the 1957 Act, the Reviewing Authority can also quash any guilty verdict and associated sentence and make an order authorising a re-trial under the same conditions as the Courts-Martial Appeal Court (see paragraphs 44-46 below). It is then for the Prosecuting Authority to decide whether to seek a re-trial. While the individual concerned is not heard by the Reviewing Authority specifically on the question of a re-trial, the decision of the Prosecuting Authority to seek a re-trial can be challenged as an abuse of process. If convicted on re-trial, the individual also retains his access on verdict and sentence to the Court-Martial Appeal Court.
44. The CMAC is a civilian court composed of judges from the criminal division of the Court of Appeal. A convicted person has a right of appeal to the CMAC against both conviction and sentence (section 8 of the Courts-Martial (Appeals) Act 1968 as amended - “the 1968 Act”).
45. An appeal against conviction will be allowed where the CMAC finds that the conviction is unsafe, but dismissed in all other cases. The test of what is “unsafe” is the same as that applied in appeals against convictions from the civilian criminal courts. An appeal against sentence may be allowed where the CMAC considers that the sentence is not appropriate for the case (section 16A of the 1968 Act). The CMAC has power, inter alia, to call for the production of evidence and witnesses whether or not produced at the court-martial (section 28 of the 1968 Act).
46. In the case of R. v. McKendry (judgment of the CMAC of 20 February 2001), the appellant pleaded guilty to a charge of absence without leave and was sentenced to, inter alia, 265 days' detention. The Reviewing Authority rejected his petition and Mr Justice Ouseley gave the judgment of the CMAC on appeal. Having noted in detail the advice of the JAG to the Reviewing Authority, he quoted as follows from a prior judgment of the CMAC (R. v. Pattinson, judgment of 25 January 1999):
“In our judgment, the court has to bear in mind, in dealing with an appeal of this kind, ... the somewhat “hybrid jurisdiction” which [the CMAC] exercises; in that it is clearly free to correct any injustice, but it nonetheless has to be mindful that those imposing and confirming sentences, particularly, it is to be said ... in relation to an offence of desertion, are particularly well placed and indeed better placed than [the CMAC] in assessing the seriousness of offending in the context of service life”.
Mr Justice Ouseley continued:
“The offence of going absent without leave, as indeed the offence of desertion, is not one in respect of which any civilian parallel exists. The sentencing considerations involve factors that are particular to the armed services, in respect of which their judgment and experience are entitled to great weight. A court should be reluctant to interfere with such courts-martial sentencing decisions, particularly where the [JAG] has reviewed the matter and has dismissed the petition in the terms in which he did here. The considerations particular to this sort of military offence relate to the significance of the offence for the maintenance of military discipline and efficiency, the need for deterrence, the significance of rank and the availability of other measures from dismissal to loss of rank and pay, which are in many ways not available or not paralleled in the civilian sphere. Indeed some of those factors would also be of particular weight when the [CMAC] is dealing with offences which do have parallels in the civilian sphere, and would justify caution in interfering with courts-martial sentences; even more so do they justify caution when dealing with offences which have no parallel in the civilian sphere.”
The case of R. v. Holtby-Smith (judgment of the CMAC of 26 February 2003) concerned a re-trial following a decision of the Reviewing Authority. Lord Justice Kennedy in the CMAC stated as follows:
“The Reviewing Authority directed ... that the Prosecuting Authority consider whether there should be a re-trial. That was an inappropriate direction on the part of the Reviewing Authority because under section 113A of the [1955 Act] the decision whether or not to order a re-trial must be one for the Reviewing Authority itself and not for the Prosecuting Authority, though of course the Reviewing Authority could, if so disposed, canvas the views of the Prosecuting Authority, and of the proposed defendant, as to whether or not there should be a retrial. Following that, the Reviewing Authority was advised of the error of its approach and ... directed a retrial in the interests of justice. ... If [such a] decision of the Reviewing Authority was to be challenged, it could only be challenged by means of judicial review... .”.
In the cases of R .v. Ball and R. v. Rugg (judgment of the CMAC, 12 February 1998), the sentence of the court-martial was one year's detention and the Reviewing Authority substituted a sentence of one year's imprisonment. The CMAC quashed the latter sentence and replaced it with a sentence of nine months' detention.
47. At the relevant time, the Briefing Notes described below were sent by the NCAO to the members (including the President) selected for a court-martial.
48. The introduction to the Briefing Notes provided as follows (The Order of Procedure booklet referred to in this introduction was not submitted by the Government to the Court):
“1. These notes provide a guide to the roles and duties of Presidents and Members of the Court at naval courts-martial trials. They are not mandatory and officers must continue to exercise their judgement and discretion during the course of the trial. The purpose of these notes is to explain procedures and formalities, so that officers taking part for the first time can better understand their role and concentrate on the issues in the trial.
2. Officers selected to officiate will also find it useful to acquaint themselves with the Court-Martial Order of Procedure booklet (a copy of which is enclosed with these notes) although it is the Judge Advocate's responsibility to ensure that the procedures are followed. He will lead the President and the Members on matters of procedure throughout the trial, and will prompt them as required in the observance of the traditional formalities.”
49. Paragraph 1 of the Briefing Notes provided that:
“The President is “responsible for conducting the trial in a manner befitting a court of justice and in accordance with the traditions of the Royal Navy” (Rule 28(1) [of the 1997 Rules]). Whilst these notes and the procedure booklet will prepare and arm Presidents to discharge this task, it is upon the Judge Advocate (who is also a member of the court) that Presidents should rely for advice and guidance on the discharge of this duty, and all matters associated with the trial. Judge Advocates are selected from the ranks of experienced naval barristers by the [CNJA]. It is their responsibility to ensure that the trial is conducted in accordance with the law, and they are trained and experienced in all matters concerning evidence and procedure and are accustomed to dealing with the many unforeseen difficulties inevitably faced by courts-martial.”
50. The Notes continued at paragraphs 2, 3 and 5 as follows:
“2. Experience has shown that it is of paramount importance that Presidents confine themselves to their particular duty laid down in [1997 Rules], and do not allow themselves or their Court Members to treat the proceedings as a board of inquiry into any aspect of omission, neglect or wrong-doing by any person not charged and brought before the Court as an Accused. ...
3. Without exception such matters can be dealt with internally, without the need to draw attention to them outside the Service by pronouncement made in open court. The preferred course for dealing with such matters which may come to light during the trial ... is therefore for the Presidents to raise them with the appropriate Service authority after the trial has finished. ...
5. Presidents and Court Members should bear in mind that their duties in court can be exacting, onerous and require considerable patience; they should not therefore underestimate the demands that will be made of them. They must be prepared to concentrate on the issues in the trial without any distraction by their normal duties and responsibilities. ...”
51. Paragraphs 8-10 covered the opening procedure describing how the members of the court-martial would enter (indicating that the President would return the salutes of the uniformed personnel as appropriate) and how the parties could object to any member of the court-martial (which matter would be resolved, if necessary by the Judge Advocate), after which the sitting members would take their oaths.
52. Paragraph 11 dealt with the procedure in the case of a plea of not-guilty. It covered the Prosecutor's opening statement, the examination in chief, cross-examination and re-examination of witnesses, questions of witnesses by the Judge Advocate and the President, closing addresses by the prosecution and defence. It also indicated that, at the discretion of the President, it would be permissible and often helpful (particularly to the uniformed advocates) to relax swords during the course of the trial. It went on to advise that:
“(i) The Judge Advocate will then direct the Court on the legal issues they must consider, and will summarise the evidence in a neutral way. He will define the elements of the offences and any other relevant law, give the Court simple guidance on how it applies to the issues in the case, and usually invite them to approach their consideration of the case by addressing a number of questions that will direct their minds to the issue of innocence or guilt. The Court will find it helpful to make a note of any questions the Judge Advocate poses.
(j) The Court will then retire to consider its verdict. They must not separate nor communicate with anyone whilst doing so. If they have further questions about any aspect of the case, then the President must re-open the Court and put those questions to the Judge Advocate on the record. Having come to their finding, and having completed the Finding Sheet which has been left with them (and which the Judge Advocate will have explained in his summing up) the President re-opens the Court, the Clerk collects the Finding Sheet and the Judge Advocate reads the finding. In the event of any finding of guilt, the Court hears mitigation and then retires (this time with the Judge Advocate present to advise them) to consider their sentence. ...”
53. Paragraph 12 dealt with questions to witnesses by the members (other than the President and the Judge Advocate) and pointed out that if they were in doubt about a question then the President could seek the Judge Advocate's advice in open court before any question was asked.
54. Paragraphs 13 and 14 dealt with the Judge Advocate's rulings on the admissibility of evidence and on any submission by the accused that there was no case to answer in the absence of the other members of the court-martial. Paragraph 14 concluded that “like all of the Judge Advocate's rulings on matters of law, the Court are bound to follow his direction.”
55. Paragraph 15 of the Notes provided:
“The Court are the sole judges of the facts and weigh the evidence to establish innocence or guilt. They are bound by the Judge Advocate's directions on the law and must take any advice on the law and procedure exclusively from him. During the trial, the Court may find that they have questions which they wish to address to the Judge Advocate; such questions must be asked in open court in the presence of the Accused (and his Accused Friend and the Prosecutor) and the Judge Advocate's reply must also be on the record. This means that once the trial has commenced, the Court can have no direct communication with the Judge Advocate except in open court.”
56. Paragraph 16 of the Notes further stated:
“As the sole judges of the facts the Court must appear to be, and remain throughout, impartial. It is important that not only is justice done, but that it is seen to be done.”
57. Paragraph 17 of the Notes warned members that:
“The Court must not be tempted to reach a decision before they have heard all the evidence for both prosecution and defence. ...”
58. Paragraph 18 of the Briefing Notes recalled that:
“... [The members' notes] should be left behind and will be destroyed by the Clerk once the trial is over.”
59. Paragraph 19 of the Notes contained the following guidance:
“The Court should not be tempted to discuss the case amongst themselves until they have heard all the evidence and the Judge Advocate's summing up. They must be rigorous in not discussing the case outside their number at all during the adjournments, particularly overnight, since they may be influenced, even subconsciously, by anything said to them which is not evidence in the trial. The Judge Advocate is required, as a matter of law, to remind them of this before any adjournment of any length.”
60. Paragraph 21 of the Briefing Notes provided:
“After a plea of Guilty or a finding of Guilt, the Judge Advocate will retire with the remainder of the Court to advise on and consider sentence with them in closed court. The Judge Advocate will advise the Court of the sentencing options available in the case. Sentencing is a matter for the court's discretion and judgment, but the Judge Advocate will advise them on the appropriate level and type of sentence, based on naval sentencing practice and (where appropriate in more serious cases) Court of Appeal sentencing guidelines, as well as his experience. The Court will be invited to consider and, if necessary, vote on the sentence to be awarded, in which case the normal tradition of the Service should be followed: the junior member should vote first, followed by the other Members of the Court and the President, in ascending order of seniority. The Judge Advocate is a member of the Court, and if necessary, has the penultimate vote on sentence before the President, who himself has an additional casting vote in the event of an equal division of votes. That said, it is the customary and proper practice for naval courts-martial to try and achieve a consensus opinion on the appropriate sentence in the first instance.”
61. Paragraph 22 of the Briefing Notes added that:
“Following pleas or findings of Guilt in the case of officers, the Clerk of the Court (at the Judge Advocate's prompting) will observe the tradition of the Service by turning the point of the Accused's sword to face him.”
62. Paragraph 23 concerned announcing and giving reasons for a sentence and read as follows:
“Increasingly it is the practice of the civil court judges to announce in open court the reasons behind any particular sentence they have awarded. This has been the practice of naval courts-martial for some time and is now a statutory requirement. The procedure is as follows:
(a) The Court, with the assistance and advice of the Judge Advocate, will determine the appropriate sentence in closed court. ...
(c) The Judge Advocate will also, together with the President, draft a statement of the reasons why the Court has awarded the particular sentence, which will be designed for public consumption. This statement of the reasons for sentence will be included in the signal publishing the result of the court-martial which receives a navy-wide distribution.”
63. In 2002 the naval Higher Authority referred 103 cases to the Prosecuting Authority for a decision whether or not to prosecute and 26 of those cases were discontinued before trial.
64. In the year 2002 the rate of acquittals in contested naval courts-martial was 59%. The rate of acquittals in contested Crown Court trials has been:
Year end to March 1999 – 42.8%
Year end to March 2000 – 42.8
Year end to March 2001 – 44.3%
Year end to March 2002 – 42%
Year to December 2002 – 37.4%
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-83739
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF VOLKOV v. RUSSIA
IMPORTANCE: 3
CONCLUSION: No violation of Art. 6-1
TEXT: 6. The applicant was born in 1969 and, before his conviction (described below), he lived in Irtyshskiy, a town in the Omsk Region.
7. On 16 April 1999 the police arrested and detained the applicant on suspicion of murder. After the investigation, the police accused him, inter alia, of shooting two persons and wounding two others, and submitted the case for trial to the Omsk Regional Court.
8. The trial began on 17 November 1999. Before the hearing, the court excluded the public from the court room. Once the hearing had begun, the applicant's lawyer protested. He argued that the court had acted unlawfully.
9. The widow of one of the applicant's purported victims, Ms G., had requested in camera proceedings because she feared “the defendant's friends and their threats”.
10. The applicant stated that he saw no reason to hold the hearing in private. The public prosecutor supported Ms G.'s request “in order to ensure the objectivity of the proceedings” because, in his opinion, the victims and witnesses were under pressure and feared testifying in public.
11. The court deliberated on the spot and decided to continue the hearing in camera in order “to ensure a comprehensive and objective examination of the case and to avoid any possibility of pressure on the victims and witnesses”.
12. On 26 November 1999 the court found the applicant guilty of the premeditated murder of two individuals and the attempted murder of another individual in May 1993. He was also convicted of the intentional infliction of grievous bodily harm in April 1999. The court sentenced the applicant to seventeen years' imprisonment.
13. On 5 January 2000 the applicant appealed to the Supreme Court. His lawyer argued, inter alia, that hearing the case in private had been unlawful for a number of reasons. First, under the Code of Criminal Procedure the intimidation of witnesses did not justify hearings in private. Secondly, the court had failed to identify any specific instance of intimidation. Thirdly, only bailiffs could effectively ensure the witnesses' security.
14. On 7 June 2000 the Supreme Court rejected the appeal after the applicant's lawyers and a representative of the prosecution had been heard. However, the appeal judgment disregarded the complaint about the trial court hearing in private.
15. On 6 December 2000 the Presidium of the Supreme Court reduced the applicant's sentence to twelve years' imprisonment.
16. At the time of the applicant's trial, criminal proceedings were primarily governed by the Code of Criminal Procedure 1960 (“the CCP”). Article 18 of the CCP established the principle that all hearings should be public. Hearings in private were possible only in cases which involved State secrets, sexual offences, cases where the defendant was under sixteen years of age or where publicity could damage the participants' private life.
17. Apart from the CCP, criminal proceedings were governed by the Basic Law on the Criminal Procedure of the USSR of 1958, which remained in force at the time of the applicant's trial. Under section 12 of the Basic Law, hearings in private were also possible to ensure the security of the victims and witnesses.
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-71946
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF TELTRONIC-CATV v. POLAND
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
TEXT: 7. On 15 April 1997 the applicant company filed a claim against the Best-Sat company in the Bielsko-Biała District Court (Sąd Rejonowy). The value of the claim was PLN 246,969.86. The claim resulted from Best-Sat’s refusal to pay the applicant company’s invoice issued on 8 October 1995 for the construction of a TV cable network, in accordance with the contract concluded between the parties. The applicant company requested that its claim be considered in a summary procedure (postępowanie nakazowe).
8. On 24 April 1997 the District Court decided that the case should be considered in the ordinary procedure as it did not fulfil the legal conditions for the summary procedure. On 14 May 1997 the applicant company filed with the Bielsko-Biała District Court an interlocutory appeal (zażalenie) against the decision of 24 April 1997. Subsequently, the court ordered the applicant company to pay a court fee of PLN 2,789.60 for the consideration of its interlocutory appeal. On 10 June 1997 the applicant filed with the Bielsko-Biała District Court an application for an exemption from that fee. However, on 21 July 1997 the District Court dismissed that application. The applicant filed another, apparently unsuccessful, interlocutory appeal against the decision of 21 July 1997, claiming that the company was on the brink of insolvency as a result of its enforceable claims not having been satisfied by the Best-Sat company.
9. On an unspecified later date, the case was transmitted to the Bielsko-Biała Regional Court (Sąd Wojewódzki) in order to be considered in the ordinary proceedings. On 3 February 1998 the Regional Court ordered the applicant company to pay a court fee of PLN 13,948.49 for lodging its claim.
10. On 17 February 1998 the applicant company filed with the Bielsko-Biała Regional Court an application for an exemption from the fee, pursuant to section 113 § 2 of the Code of Civil Procedure. It stated that the amount of the fee was considerably beyond its means. It also submitted that, for the first 10 months of 1997, it had made net profits of only PLN 7,695.37, while the company’s assets amounted to PLN 31,366.98, but consisted mostly of claims to be satisfied.
11. The applicant company stressed that it had no possibility to dispose of its assets promptly in order to secure funds to pay the court fee and, even if that were possible, it would lead to the winding up of the company. It further argued that the lack of funds to pay the court fee did not result from any fault in its activities or from a negligent failure to secure funds for the litigation. It also maintained that its claim resulted from work done over the past few years which had dominated the activities of the company. Consequently, it did not have other possibilities to secure sufficient funds from other contracts.
12. On 2 March 1998 the Regional Court ordered the applicant company to produce a number of documents concerning its financial situation. The relevant documents were submitted to the court as enclosures to a letter of 16 March 1998. In the same letter the applicant supplemented its application for exemption from the court fees. It stated that it had three enforceable claims, including two against the Best-Sat Company which were the subject of the pending litigation. The third claim, although enforceable as of 25 November 1997, had not been satisfied. The applicant company stated that its fixed assets of PLN 11,670.90 were necessary to continue the running of its business and, if disposed of, the company would have to be wound up. The plaintiff also submitted that in 1997 it had made net profits of PLN 2,723.19, which were used to set off the losses made in 1995 and 1996.
13. On 25 May 1998 the Bielsko-Biała Regional Court rejected the application. The court gave the following reasons for its decision:
“At the request of the court, the plaintiff has submitted its balance sheets as of 30 November 1997 and of 30 March 1998, as well as a bank statement regarding its accounts as of 17 March 1998. In the court’s view the above documents prove unequivocally that the plaintiff makes profits from its business, as evidenced by the balance on its bank accounts for the period between December 1997 and March 1998. It should also be pointed out that the plaintiff has gross profits (przychód) from its business activity estimated at PLN 26,322.95, including gross profits from the sale of goods and materials in the amount of PLN 2,365.81.
Furthermore, according to the balance sheet of 3 March 1998, the plaintiff company has significant fixed assets (majątek trwały) in the amount of PLN 7,192.67, and current assets (majątek obrotowy) in the amount of PLN 31,067.97.
The examination of the above documents leads to the conclusion that the plaintiff can afford to pay the court fees because it has sufficient funds.
It should also be pointed out that, in case of a lack of such funds, the plaintiff could obtain them by means of partners’ surcharges (dopłaty) since it is a limited liability company.
All the other expenses of the plaintiff should be treated by it on equal terms with the expenses which are necessary to pursue its claims...”
14. On 4 June 1998 the applicant company filed an interlocutory appeal against the decision of 25 May 1998 with the Katowice Court of Appeal. It submitted that the District Court had made a mistake in calculating the amounts of fixed and current assets because the figures relied on were from 1 January 1997, but the value of the assets had decreased since then. As of 31 January 1998 the amount of fixed and current assets was estimated at PLN 5,019.27 and PLN 18,494.77 respectively. The applicant company argued that the combined value of all its assets only slightly exceeded the amount of the court fee, and that, if the latter had to be paid in that amount, the company would be forced to wind up.
15. The applicant company further pointed out that the fixed assets consisted of office equipment which was necessary to run the business, whereas its current assets consisted mostly of reserves of materials necessary to provide services to clients and claims which were the subject of separate litigation. Thus, even assuming that the value of current assets exceeded the amount of the court fee, it could not be presumed that the former could be disposed of in order to provide the funds necessary to pay that fee.
16. The applicant company also contested the Regional Court’s view that all expenses should be treated equally, and pointed out that any surplus would be used to pay taxes since failure to do so could result in prosecution. Finally, the applicant observed that the unpaid invoice which gave rise to the present claim related to work done by the applicant company over a period of two years, which had dominated the applicant’s business during that period. That was, to a large extent, the reason why the applicant company had been unable to secure funds for possible litigation expenses. Lastly, the applicant company, in principle, agreed with the Regional Court’s view as to the possibility of obtaining additional funds by means of partners’ surcharges. However, relying on section 113 § 2 of the Code of Civil Procedure, it stressed that a legal person was entitled to exemption from court fees if it proved that it did not have sufficient funds.
17. On 31 July 1998 the Katowice Court of Appeal rejected the applicant’s appeal as follows:
“According to the plaintiff’s documents, its financial situation deteriorated only in 1998. However, it emerges from the documents produced in support of the statement of claim that the plaintiff’s claim results from work done between 1993 and 1995, since the notice to pay for that work is dated 16 January 1995. From that it unequivocally follows that the plaintiff could have secured the funds necessary for the pursuance of its claims prior to 1996 when its financial situation deteriorated, and when, as it transpires from its balance sheets, its assets and gross profits from the sale of goods and materials had been at the level which had been referred to in the contested decision.
The Court of Appeal also does not subscribe to the plaintiff’s view that, if at the current moment the plaintiff does not have sufficient funds to pay the court fee, then it can successfully request to be exempted ... under section 113 § 2 of the Code of Civil Procedure.
As follows from the established case-law of the Supreme Court, and also the case-law of this Court of Appeal, the possibilities of paying the court fees by a legal person should be assessed in the larger context not only of the funds currently held but also those that could possibly have been secured. When the plaintiff holds a current bank account, where its turnover is recorded, and that turnover still in December 1997 was of significant volume, then there are no reasons to assume that the plaintiff could not take out the necessary loan in order to obtain the funds needed to pursue claims of the very significant value of PLN 246,969.86. Obviously, interest will be charged on such a loan, but there are no grounds to hold that the cost of such a loan should be borne by the taxpayers, which would happen if exemption from court fees was granted...
The Court of Appeal also fully shares the Regional Court’s argument that, since the plaintiff is a limited liability company, the obligation of the partners to make appropriate surcharges in order to secure funds to cover expenses related to the assertion of claims should be taken into consideration...”
18. The applicant company did not pay the required court fee. On an unspecified later date, the Bielsko-Biała Regional Court ordered that the applicant company’s statement of claim be returned to it, which meant that its claim was of no legal effect.
19. According to the applicant company’s tax return for 1997, in that year it made net profits of PLN 4,484.70.
20. Under Polish law every plaintiff is obliged to pay a court fee at the time of lodging a statement of claim with a court. As the case proceeds, either party is obliged to pay further court fees at the time of lodging any appeal, unless granted exemption from such fees.
Court fees are based on a percentage (if a fee is due for lodging a claim or an appeal) or a fraction (if a fee is due for lodging an interlocutory appeal) of the value of the claim in question. The court fees incurred by either party can, depending on the outcome of the litigation, be finally repaid by the losing party (who, in principle, is ordered to pay all the costs of litigation in a final judgment).
21. There are, however, categories of litigants who are exempted from court fees by virtue of statutory provisions. Some of those categories are listed in Article 111 § 1 of the Code of Civil Procedure. That provision, in the version applicable at the relevant time, exempted from court fees a party lodging a paternity action, a party seeking maintenance, a prosecutor, a court-appointed guardian and “any party exempted from court fees by the competent court” (that is to say, a party who had been granted an exemption under Article 113 of the Code, cited below).
22. The other categories of exempted litigants are listed in, inter alia, sections 8 and 9 of the Law of 13 June 1967 on Court Fees in Civil Cases (Ustawa o kosztach sądowych w sprawach cywilnych). Under section 8 of the Law, the State Treasury, municipalities and other public organs or institutions are not obliged to pay court fees, provided that the claim in question does not relate to their business activities.
23. In the case of a successful outcome of litigation initiated by a person exempted from court fees, the fees which would normally have been collected from that person for lodging and proceeding with the claim are awarded to the State Treasury against the opponent.
24. The Law of 13 June 1967 on Court Fees in Civil Cases (as amended) sets out general principles with respect to the collection of fees by courts. Section 5(1) of the Law, in the version applicable at the material time, stipulated:
“Unless otherwise provided by the law, a party who has submitted to a court a pleading which is subject to court fees, shall pay such fees.”
25. The relevant part of section 16 of the Law, in the version applicable at the material time, provided as follows:
“1. The court shall not take any action if the court fee due for lodging a given pleading is not paid. In such a case the president of the court shall order the party concerned to pay the fee due within a period not exceeding seven days, on pain of having the pleading returned. If the party does not comply with the time-limit, the pleading shall be returned to this party.
...
3. Any appeal, cassation appeal, interlocutory appeal or objection to a judgment by default ... shall be rejected if the court fee due is not paid within the [above] time-limit.”
26. Section 18 provided:
“A pleading which has been returned to a party as a result of the fact that the court fee had not been paid, shall be of no legal effect.”
27. Exemption from the payment of court fees was (and still is) a matter for the discretion of the court competent to deal with the case. According to Section 112 § 2 of the Code of Civil Procedure, the competent court may grant partial exemption from the fees.
Article 113 § 1 of the Code of Civil Procedure, in the version applicable at the material time, stipulated:
“An individual may ask the competent court dealing with the case to grant him an exemption from court fees provided that he submits a declaration to the effect that the fees required would entail a substantial reduction in his and his family’s standard of living. Such a declaration shall contain details concerning his family, assets and income. It falls within the court’s discretion to assess whether or not the declaration satisfies the requirements for granting the exemption requested.”
28. The grounds for exempting legal persons, companies and business enterprises from court fees were, however, formulated in a different way from the grounds applying to natural persons. Paragraph 2 of Article 113 of the Code of Civil Procedure in the version applicable at the relevant time read:
“A legal person, or an entity not possessing legal personality, which has demonstrated that it does not have sufficient financial means for court fees, may be granted an exemption from those fees.”
29. Article 116 § 1 of the Code of Civil Procedure provides:
“In case of doubt ... as to the real financial situation of the party requesting exemption from court fees, the court may order a verification of [his/her] declaration.”
30. Article 116 § 2 of the Code of Civil Procedure reads:
“The court shall refuse to grant a party [to the proceedings] exemption from court fees if [his/her]claim or defence are of a manifestly ill-founded character.”
31. The relevant part of Article 120 § 1 of the Code, in the version applicable at the material time, stated:
“The court shall revoke an exemption from court fees or legal assistance granted if the basis therefor did not exist or has ceased to exist. In either instance, the party concerned shall pay all court and/or legal fees due in the case...”
32. Fees collected by courts do not constitute, nor are they equivalent to, security for costs. The court fees are transferred by financial departments of the courts to the State Treasury and are deemed to be part of its income.
33. On 11 January 1995 the Supreme Court (Sąd Najwyższy) gave a decision in which it referred for the first time to the “right to a court” guaranteed under Article 6 § 1 in the context of the requirement to pay court fees for lodging a claim or appeal (decision no. III ARN 75/95, published in OSN Zb. U. 1995, no. 9).
That ruling concerned an extraordinary appeal lodged by the First President of the Supreme Court with the Supreme Court. The appeal was directed against a decision of the Supreme Administrative Court, refusing to exempt a claimant in administrative proceedings from payment of court fees. The Supreme Court held as follows:
“1. From the date on which Poland became a member of the Council of Europe, the case-law of the European Court of Human Rights in Strasbourg may and should be taken into account in interpreting Polish law.
2. If the subject matter of a case is the party’s application for substantial financial assistance from the public authorities, particular diligence should be displayed in considering [that party’s] parallel application for an exemption from court fees. [Any decision] rejecting such an application should give relevant and particularly cogent reasons so as not to amount to an actual denial of the right to a court (as secured by Article 6 of the European Convention of Human Rights) ...”
Although the relevant decision related to court fees for lodging an appeal with the Supreme Administrative Court by a person who had requested financial assistance from the public authorities, it has been applied mutatis mutandis to civil cases.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-89621
LANGUAGEISOCODE: ENG
RESPONDENT: LTU
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF SAVENKOVAS v. LITHUANIA
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;Violation of Art. 3 (substantive aspect);Violation of Art. 8;Non-pecuniary damage - award
JUDGES: András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky
TEXT: 6. The applicant was born in 1957 and lives in Vilnius. At the time of lodging his application, he was serving a prison sentence.
7. The applicant, a person with previous convictions, was suspected of robbery. On 8 September 1999 the police conducted a search of his home. The applicant complained to the prosecution that the search had been unlawful. He also alleged that the police had taken some documents and computer files belonging to the Belarusian Youth Association (BYA), a non-governmental organisation which he ran.
8. On the same date the applicant was arrested. His detention on remand was authorised by the Vilnius City Third District Court on 10 September 1999. It was thereafter extended on several occasions.
9. On 20 September 1999 the applicant was placed in custody at the Lukiškės Remand Prison (Vilniaus Lukiškių tardymo izoliatorius - kalėjimas).
10. He unsuccessfully attempted to escape from a convoy vehicle on 28 December 1999.
11. On 23 December 1999 the prosecution rejected the applicant’s complaints regarding the search of his home. The applicant did not appeal.
12. On an unspecified date the pre-trial investigation was concluded and the case transmitted to the trial court.
13. On 17 October 2000 the Vilnius City Third District Court convicted the applicant of robbery, the illegal possession of ammunition, assault and an attempt to abscond. He was sentenced to five years and ten months’ imprisonment and his property was confiscated. During the hearing the applicant was assisted by an officially-appointed defence counsel and an interpreter (Russian / Lithuanian). When calculating the sentence to be imposed on the applicant, the trial court added a period of imprisonment relating to a previous conviction, which the applicant had not served fully as he had been released on licence on 6 May 1998.
14. The applicant appealed, claiming inter alia that the case against him had been fabricated, that the court had based its conclusions on evidence obtained by force, and that the conviction was arbitrary. On 8 March 2001 the Vilnius Regional Court dismissed the applicant’s allegations as unsubstantiated. The applicant was not present at the appeal hearing but was represented by officially-appointed counsel.
15. The applicant lodged a cassation appeal, claiming that the charges had been fabricated in order to undermine the activities of the BYA, that the evidence had been collected by force, that the first-instance court had rejected his request to have his handcuffs removed during the trial, that some witnesses had not been questioned, and that the transcripts of the hearings had been false. The applicant further alleged that his defence rights had been violated during his questioning on 10 September 1999, and that the majority of other procedural acts during the pre-trial investigation had been carried out in the absence of his counsel. He also complained about the quality of the services provided by the lawyers officially appointed to defend him. Finally, the applicant objected to the fact that the appellate court had examined the case in his absence.
16. On 11 September 2001 the Supreme Court dismissed the applicant’s cassation appeal, the applicant’s lawyer being present. The Supreme Court noted that the trial court had reasonably refused to call additional witnesses. The applicant had been able to question the witnesses summoned by the court. The applicant could also have submitted his comments on the contents of the trial transcripts. The Supreme Court further established that the applicant’s lawyer had in fact been present during the examination of the applicant on 10 September 1999 and, subsequently, at each trial hearing. The Supreme Court ruled that the applicant’s presence at the appellate level had not been required in view of the nature of the issues examined, the appellate court not having had any need to question him on issues that could not be determined in the sole presence of his lawyer.
17. On 17 April 2002 the Supreme Court dismissed the applicant’s request to reopen the criminal proceedings, as being wholly unsubstantiated.
18. By decisions of the Vilnius City Third District Court of 22 May 2003 and the Vilnius Regional Court of 23 June 2003, the applicant’s sentence of imprisonment was upheld, but the order to confiscate his property was lifted.
19. On 30 July 2003 the applicant was released after having completed the sentence.
20. On an unspecified date the applicant was again arrested, this time on suspicion of possessing a stolen computer. According to the information in the case file supplied by the parties, the applicant was remanded in custody pending trial for that charge.
21. The applicant was held at the Lukiškės Remand Prison in the centre of Vilnius from 20 September 1999 to 27 October 2000, when he was transferred to the Rasų Prison which is also in Vilnius (Vilniaus 2-oji griežtojo režimo pataisos darbų kolonija; sometimes referred to by the parties as the Vilnius Correction Home No. 2). He stayed there until 5 January 2001, when he was transferred back to the Lukiškės Prison for a week (5 to 12 January 2001). Subsequently, from 12 January 2001 to 6 June 2002, the applicant stayed in the Rasų Prison, with the exception of a period from 29 June 2001 to 10 August 2001, when he was placed in a prison hospital.
22. Thereafter, until his release on 30 July 2003, the applicant was held in the Lukiškės Prison, with short, periodic transfers to other prisons.
23. In his submissions to the Court, the applicant alleged that the cells had been severely overcrowded. In particular, 2 to 8 persons had had to share a cell of about 9 square metres (m²), all the detainees being confined to the cell for most of the day. The applicant had frequently been transferred from one cell to another, the conditions in all the cells being very similar. The toilets in every cell had been virtually open, requiring the inmates to relieve themselves in front of the others. This had constituted an affront to human dignity. The cells had been very dirty, inhabited by cockroaches and rodents. Mattresses and bed linen had rarely been washed. Prisoners had done their own washing (except for the bed linen) so the cells had often been humid from the attempts to dry clothes. There had been no adequate ventilation system, the applicant being obliged to stay in his cell together with smokers. His health had suffered as a passive smoker. He had only bought cigarettes himself to trade with other prisoners. Opening the windows had caused unhealthy draughts.
24. In their observations in response before the Court, the Government conceded that there had been some overcrowding in the cells, although not as serious as that alleged by the applicant. For reasons beyond the control of the administration of the Lukiškės Remand Prison, detainees had had about 2.86 m² of floor space per person, instead of the statutory 5 m² (see paragraph 56 below). The Government stated that remand prisoners at Lukiškės currently have about 3.93 m² of floor space per person. It had not been possible to provide the applicant with a permanent cell at that prison because there had been a constant turnover of remand prisoners.
25. The Government informed the Court that regular inspections and monthly preventive disinfections had been carried out at the Lukiškės Remand Prison (sometimes urgently albeit not during the applicant’s stay there). Whilst the inspection reports had found overcrowding, no other material violation of public health or nutritional standards had been observed. No complaints about smoking in cells or an inadequate supply of soap or toilet paper had been recorded at that time. A few, minor violations of hygiene had been noted, which required repairs subsequently effected within set time-limits. A standard quantity of soap and toilet paper had been issued to each remand prisoner once a month and bedding had been changed once a week. Mattresses had been regularly disinfected and replaced when worn out.
26. The applicant complained to the Court that he had been refused a social allowance which he had requested in order to purchase basic toiletries. He could only rarely get soap and toilet paper. The standard supply to each prisoner of one bar of soap and one roll of toilet paper per month had been wholly inadequate. No toothpaste or other such items had been provided. The prison administration had allegedly prevented him from using his own money to purchase certain items of hygiene. He had often been deprived of any social allowance for such purchases due to arbitrary disciplinary measures imposed on him. This had been done to prevent him purchasing stationery to make further complaints. Moreover, his own paltry funds had had to be used for legal representation. He had received a total of some 20 euros in social allowances in three years, and had suffered severe hardship as a result.
27. The applicant also complained that his head had been shaved against his will, that the prison food had been of very low quality, and that an orthodox priest had not been invited to visit the prison. The possibility to obtain any information from the outside world had been severely restricted. In particular, the applicant alleged that he had been precluded from visiting the library, and his requests to have books brought to him in the cell had been ignored. He had only occasionally been given some old books and newspapers. The prison administration had also refused to provide him with copies of legislation.
28. The Government responded that the applicant, as a remand prisoner, had been allowed to purchase food and necessities at the prison shop using his own money held on a personal account for him. He had only once used this facility when he had bought soap, washing powder and, despite his complaint about smoke in cells, cigarettes. Contrary to his submissions to the Court, the applicant had had a right of access, on request, to legal literature and other materials in the Lukiškės prison library. Moreover, Russian and Lithuanian newspapers were personally delivered to him on Mondays and from time to time he had received various materials from outside prison. Orthodox priests had made regular visits to the prison and had held mass. Short hair had been required of inmates, but they had not been shaved.
29. The applicant had been provided with three meals a day, according to prison nutritional standards, which had been regularly controlled. Although the applicant would have been allowed to receive certain family visits and parcels, none had been requested or sent at the material time.
30. The applicant next submitted that his outgoing letters had been delayed or withheld by the prison administration. He had thus been impeded in making complaints or prevented from receiving replies to his complaints to various authorities. Finally, the applicant alleged that the prison administration had never registered his complaints about his conditions of detention or the actions of certain prison warders.
31. On 3 January 2001 the applicant sued the Lukiškės prison administration, alleging that his personal rights had been violated on account of the inadequate general conditions of detention, as well as his specific treatment by the prison administration. Many of these complaints were similar to those described above at paragraphs 26 and 27, a recurring grievance being that of overcrowding. He subsequently clarified his complaints on 1 March 2001.
32. On 22 November 2001 the Vilnius Regional Administrative Court rejected the applicant’s claims in a succinct, global manner, holding that the applicant “had not proved that [the prison administration’s] acts had breached the law”. The court also stated that the prison administration had “substantiated its arguments by evidence”. The applicant was present at the hearing, assisted by an interpreter.
33. The applicant appealed, complaining that the court had refused to examine certain evidence or appoint independent experts. The applicant also stated that the court had been biased since it had ignored facts which had been conceded by the prison administration (i.e. the lack of space in the cells, smokers being detained with non-smokers, and the inadequate sanitary conditions).
34. On 22 January 2002 the Supreme Administrative Court dismissed the applicant’s appeal. It held inter alia:
“The applicant alleged that his rights were violated by the officials of the [Lukiškės] prison. In this case, Article 485 of the Civil Code should be applied, being applicable to situations when damage is caused by the unlawful actions of [State officials]. The applicant claims non-pecuniary damages. Article 485 § 2 of the Civil Code stipulates that in such cases, in addition to an award for pecuniary damage, non-pecuniary damage can also be compensated. Therefore, an award for non-pecuniary damage can be made only where pecuniary damage has been established”.
35. The court concluded, as cryptically as the Vilnius Regional Administrative Court, that, since the applicant had sustained no pecuniary damage, there was no legal basis to award non-pecuniary damages. It did not analyse in detail the applicant’s complaints. In particular, the court did not rule on whether there had been a violation of the applicant’s personal rights as a result of the allegedly inadequate conditions of detention. The applicant was present at the hearing together with an interpreter.
36. The applicant also alleged before the Strasbourg Court that he was subjected to unlawful searches, and that he was exposed to the risk of contracting HIV in prison. However, he did not raise these complaints before the domestic courts.
37. The applicant made similar complaints in his submissions to the Court about his conditions of detention after his conviction in the Rasų Prison. The Government referred to this prison as the Vilnius Correction Home No. 2, (formerly Vilnius Penal Correction Colonies Nos. 1 and 2). It was a high security corrective labour colony for recidivists who had been sentenced to imprisonment. The applicant had served part of his sentence there.
38. The relevant periods for the Court’s examination ran from 27 October 2000 until 5 January 2001, from 12 January to 29 June 2001, and from 10 August 2001 to 6 June 2002.
39. In response to the applicant’s complaints, the Government contended that the applicant had been detained in a sector which had had 14 unlocked rooms, housing some 300 prisoners. Prisoners had been free to walk around the sector, talk to others, watch television, play games, etc., from 7 a.m. to 11 p.m. on weekdays, and from 8 a.m. to midnight on weekends and holidays. They had been allowed out of the sector, on request, to use educational or recreational facilities, to go to the washhouse, the chapel, the library or the canteen, to perform work, etc.
40. The prison’s population increased to around 500 at the end of 2001 and to some 600 at the beginning of 2002. The minimum standard of 3 m² of floor space per person had been respected and surpassed at the material time. After an inspection in October 2001, 606 prisoners being detained, the floor space per person had been about 3.75 m² in the ordinary cells and 4.5 m² in the punishment cells. According to the inspection in November 2001, the floor space had increased to between 5.4 m² in the ordinary cells and 18.8 m² in the punishment cells. In May 2002 the latter had been reduced to 7.08 m². A refurbishment of cell accommodation had begun.
41. Prisoners had had access to the law and regulations on the execution of their sentences. The applicant had been allowed weekly visits to the library and had been offered various kinds of work, which he had refused. He had been solvent at the material time due to external remittances or social benefits, so he could have used the prison shops.
42. The prison had been regularly inspected and found to comply with sanitary and nutritional standards.
43. Nevertheless, the applicant complained to the Parliamentary Ombudsman on several occasions in 2001, but the Ombudsman found most of his complaints to be unfounded. Instead, the applicant was advised to behave better and respect the rights of others, in accordance with his statutory duties.
44. On 25 October 2001 the applicant brought an action before the administrative courts, complaining about the general conditions of detention and his specific treatment by the administration of the Rasų Prison. On 23 November 2001 he raised further complaints. The Ministry of Justice and the Rasų Prison administration were the respondents in the proceedings. The applicant complained of the following:
He had been refused a social allowance to purchase toiletries and certain basic items of hygiene.
There had been no possibility of work in the prison to earn a little money, as a result of which he had been constantly hungry and unable to maintain his personal hygiene.
He had been obliged to live in a cell with hostile persons or people suffering from infectious diseases.
His relatives had not been allowed to visit him.
He had not been allowed to make a telephone call freely, as he had been required to fill in a questionnaire, stating an addressee and the reason for every call; at times the right to make a call had been refused even after completing the questionnaire.
The prison administration had refused to issue him with certain official documents, including those required to bring court proceedings.
He had not been able to make photocopies or have free postage stamps for his complaints, and he had not been provided with paper, envelopes or pens.
The prison administration had prevented him from having a personal stamp with his name, or a floppy disc with educational programmes, and had prohibited him from using a personal computer to type his various complaints about the conditions of detention.
The prison administration had seized paper which the applicant had received in a parcel.
They had unlawfully deleted his personal notes from his electronic note-book.
The prison administration had refused to provide him with information about the internal prison rules or the statutory requirements for prisoners’ diet.
He had not been afforded free legal and translation assistance to prepare various court proceedings concerning the alleged violation of his personal rights.
The prison administration had delayed his letters and withheld some of them; he had not been given certain letters sent to him, and certain of his letters and documents had been removed.
He had been victimised by the prison administration in view of his criticism of the conditions of detention, by being subjected to unlawful disciplinary measures, such as solitary confinement (for an unspecified period).
The temperature in the solitary confinement cell had been very low and the toilet had smelled awful; he had also been precluded from attending certain educational courses, church services or social activities, or from reading and using electronic equipment while in the solitary confinement cell.
45. The applicant alleged that these grievances about his conditions of detention had been ignored by the authorities, and that he had never been informed about the decisions reached in response to his complaints.
46. On 5 December 2001 the Vilnius Regional Administrative Court partly rejected the applicant’s case regarding numerous disciplinary sanctions, because he had not submitted a hierarchical complaint to the Prison Department of the Ministry of the Interior, and had missed the statutory time-limit of one month to raise certain issues before the court. The applicant failed to appeal against the decision of 5 December 2001 in accordance with the relevant statutory requirements, namely to set out his complaints in a comprehensible manner.
47. However, the court agreed to hear the applicant’s complaints regarding other conditions of his detention and ordered him to submit the necessary documents proving that he had suffered damage. These complaints involved, inter alia, alleged persecution for having lodged complaints criticising the prison administration, a lack of legal aid, long term personal visits or telephone calls, a failure to supply copies of documents and envelopes, a failure to control cell temperatures, the censorship of correspondence, the lack of opportunity to attend educational courses, and the like (cf. paragraph 44 above). On 18 March 2002 the Vilnius Regional Administrative Court held a hearing in the presence of the applicant, assisted by an interpreter. His complaints were subsequently rejected as unsubstantiated. In particular, the court:
“...found no indication of unlawful action or inaction on the part of the employees of [the prison] or the Prison Department of the Ministry of the Interior. Nor is there any indication that the applicant has suffered damage... There is no evidence in the case file that the applicant has been victimised by way of revenge or psychological pressure in response to his complaints and criticism [regarding his conditions of detention], or that his rights have [otherwise] been violated. The applicant’s statements about psychological pressure and a violation of his rights are [thus] unsubstantiated.”
48. This decision was read out at the hearing. Subsequently, the applicant was served with a written copy of it in the Lithuanian language.
49. The applicant appealed, complaining inter alia that the first-instance court had been biased, that it had refused to examine certain witnesses and evidence, and that it had ignored various facts. In his appeal, the applicant also raised new complaints. In particular, he submitted that he had not been given enough food, that he had been deprived of the right to dial a certain telephone number, and that the prison administration had refused to communicate with him in the Russian language.
50. On 11 July 2002 the Supreme Administrative Court upheld the first-instance decision. It noted that the applicant had failed to substantiate his complaints as to the alleged violation of his personal rights. In this connection, the court accepted the following explanations provided by the Ministry of Justice and the Rasų Prison administration (the respondents):
- The respondents argued that the prison diet had been in conformity with Decree no. 393 of 29 December 1990 on food norms, as well as Regulation no. 528 of 19 August 1991. Catering had been organised in accordance with the requirements of the Order of the Minister of Justice no. 172 of 16 August 2002, the conditions being regularly checked by the competent health authorities. The last inspection had been carried out on 8 April 2002, establishing that the quality of the food had been satisfactory, and that there had been no violation of the relevant food norms.
- In response to the applicant’s complaint about the inability to dial a certain telephone number, the respondents submitted that the making of telephone calls had been regulated by the Internal Prisons Rules (Rules 201-207) and Article 45-3 of the Prison Code, which had stipulated that the cost of a telephone call should be met by the prisoner.
- All the official communications and correspondence in the prison had been conducted in the Lithuanian language, pursuant to domestic regulations, the applicant having been afforded the possibility to learn the Lithuanian language since 2001.
- In response to the applicant’s complaint about the refusal to grant him a social allowance, the court noted that social benefits had been distributed in accordance with the Rules of the Prisoners’ Social Support Fund, approved by Decree no. 24 of 10 January 1998. The rules stipulated that an inmate was eligible for a social allowance if, during a given month, he had no money or a sum inferior to 1/3 of the statutory minimum standard of living, and had had no disciplinary penalties. The amount of such an allowance in each case also depended on the availability of funds. Notwithstanding the fact that the applicant had received disciplinary penalties, the prison administration had taken into account his difficult financial situation, awarding him an allowance of LTL 12 (about EUR 3.4) on four occasions: in August and November 2001, and in January and May 2002.
- Insofar as the applicant had complained about the refusal of the prison administration to grant him free legal aid, his complaints were wholly unsubstantiated.
- The applicant had been able to make photocopies of the documents necessary for the submission of his complaints. However, the prison administration had had the right to require reimbursement of the costs incurred in this respect, in accordance with Decree no. 1039 of 1 September 2000.
51. The court refused to examine the applicant’s other complaints which had not been raised at first instance.
52. By final decisions of 7 March, 26 March, 28 May, 10 June, 16 June and 24 September 2003, the Supreme Court rejected the applicant’s further claims for moral and pecuniary damages in relation to his conditions of detention, which claims had been lodged against various authorities, such as the central Prison Department of the Ministry of Justice, the Ministry of Justice itself and the Rasų prison administration.
53. The applicant had unsuccessfully tried to bring numerous civil and criminal proceedings against certain private newspapers and journalists and other private persons, as well as various State agencies and officials, for alleged affronts to his dignity and reputation, as well as an interference with his private life. However, his actions had been dismissed because he had failed to comply with the statutory procedural requirements to formulate his submissions adequately, to present his complaints in the Lithuanian language or to pay stamp duty. The applicant had not appealed against those decisions.
54. The applicant had been subjected to various disciplinary penalties during his detention. According to the Government, once, on 31 July 2000 at the Lukiškės Remand Prison, his right to use the prison shop or receive parcels from the outside had been withdrawn for a month. This penalty had been revoked before term by the prison director. Between December 2000 and June 2002 at the Rasų Prison, he had been disciplined 31 times, as a result of which he had served varying periods of 5 to 15 days in the punishment cell on 9 occasions. Otherwise the sanctions had involved mere warnings or reprimands. The applicant had frequently challenged such sanctions and, on one occasion in February 2002, the decision to confine him to a punishment cell had been quashed by the director of the Prison Department of the Ministry of Justice. The Government contended that the applicant had had access to the prison administration and the administrative courts.
55. According to Article 21 of the Constitution, no one may be subjected to torture, or inhuman or degrading treatment or punishment.
56. At the material time, detention on remand was governed by the Law on Pre-trial Detention 1996 (the “Law”) and the Internal Regulations of Places of Pre-trial Detention (the ‘Regulations”), approved by Resolution No. 881 of 25 July 1996 and replaced by Ministerial Order No. 178 of 7 September 2001. Article 18 of the Law provided that inmates were to be kept in common cells housing a maximum of four inmates, in adequate living conditions. The official norms on cell space fixed a minimum of 3 m² per person. This standard was increased to 5 m² of floor space per person in 1999.
57. The execution of prison sentences at the material time was governed by the Code of Corrective Labour 1971, revised in 1983 and 2001 (the “Prison Code”), as well as the Internal Regulations of Corrective Labour Institutions 2000 (the “Prison Rules”). Article 1 of the Prison Code provided that imprisonment was not intended to cause physical suffering or offend human dignity. Article 77 required the provision of adequate conditions of detention for convicted prisoners. The official standard floor space was also 3 to 5 m² for such prisoners (cf. paragraph 56 above).
58. The sanitary, space, food and medical requirements in detention facilities were further regulated by Government Resolution No. 393 and Ministerial (health care) Order No. 461. Adequate heating, ventilation (windows), sanitation and cleanliness were necessary requirements for all places of detention, but no distinction was made between smoking and non-smoking cells. Prisoners were to be provided with a bath, clean bedding and underwear once a week. Men were to have short hair (not shaved), and all prisoners on arrival or transfer (including placement in solitary confinement) had to be “sanitised”. The floors of sanitary facilities were to be cleaned daily. Food was free of charge and had to comply with governmental nutritional standards.
59. Detainees were required to conform to their respective regimes or face disciplinary sanctions, to be determined according to the gravity and character of the offence. Article 22 of the Law set out detainees’ duty to observe order in prison, to comply with lawful demands, to refrain from communicating with people in other cells, etc. Article 24 of the Law specified the possible disciplinary penalties for remand prisoners, such as a warning or reprimand, extra cleaning duties, a denial of access to the prison shops and the receipt of parcels for up to a month, or incarceration in a punishment cell for up to 10 days. Article 69 of the Prison Code provided similar penalties for convicted prisoners and, in addition, up to 15 days in a punishment cell or a cell transfer of up to 6 months. The Rules and Regulations provided for information, defence possibilities and appeals.
60. Article 15 of the Law foresaw detainees’ right to correspond, subject to censorship, with outgoing letters being posted within three days of being handed in. Letters to certain State institutions (extended to all such institutions in 2000), the Minister of Justice and the European Court of Human Rights were not to be censored, and were to be posted within a day. Detainees were to be informed of incoming correspondence within three days of its arrival but were not given it. Instead, until July 2001, it was kept in the individual’s file. The Court’s letters were, however, to be notified within a day of receipt. As of July 2001, the decision to censor a detainee’s correspondence was only to be taken by the investigating officer, the prosecutor or a court (as well as the prison director in respect of a convicted prisoner). Article 41 of the Prison Code allowed the general censorship of the correspondence of convicted prisoners, subject to certain exceptions such as that addressed to State institutions and the Court.
61. Visits to remand prisoners were allowed by Article 16 of the Law; Article 45 of the Prison Code for convicted prisoners. The formers’ visits had to be authorised by the investigating officer, could last up to two hours and were held within sight of prison officers. The latter’s visits could be of short or long duration, the frequency of which was determined by the nature of the individual’s regime. Short visits were to be held in the presence of prison officers.
62. Article 13 § 1.7 of the Law enabled remand prisoners to attend religious services held in the detention centre. The same right for convicted persons was contained in Article 601 of the Prison Code. Clergymen of all confessions were to be given free access to all places of detention.
63. The European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (hereafter the “CPT”) visited several Lithuanian detention centres between 14 to 23 February 2000 and its Report was published (CPT/Inf(2001)22). One such centre was the Lukiškės Remand Prison where the present applicant was detained. The CPT Report called it the Vilnius Prison which was designated as both a remand establishment and closed prison. It was built in 1904 and is located in the city centre. With an official capacity of 1,200, on 15 February 2000 it was holding 1,712 prisoners, including 93 women and 21 male minors. Approximately two-thirds of the prisoners were on remand; the rest were sentenced prisoners, 63 of whom were serving life sentences (§ 53 of the CPT’s Report).
64. The CPT noted, inter alia, serious overcrowding in the prisons it inspected, a particularly high rate of prisoners remanded in custody pending trial, a lack of recreational and employment facilities and insufficient staffing. At Lukiškės, cells measured around 8 m² and held up to six people instead of a maximum of two, with insufficient room for furniture other than double or triple bunk beds. The in-cell toilets provided little privacy or separation from the sleeping and eating area, where prisoners were obliged to spend 23 hours a day (§ 70 ibid). It commented at paragraph 56 of its Report as follows (emphasis added):
“Prison overcrowding is an issue of direct concern to the CPT. An overcrowded prison entails cramped and unhygienic accommodation; a constant lack of privacy (even when using a sanitary facility); reduced out-of-cell activities, due to demand outstripping the staff and facilities available; overburdened health-care services; increased tension and hence more violence between prisoners and between prisoners and staff. The establishments visited by the CPT’s delegation (and, in particular, Vilnius Prison) vividly illustrated these negative consequences of overcrowding, which were all present in varying degrees of severity.”
65. The CPT noted at paragraph 74 of its Report that:
“At Vilnius Prison, 94 prisoners sentenced for minor offences were employed full-time on maintenance work. Efforts were also being made to provide some activities to male minors held in the establishment. Other inmates, including life-sentenced prisoners, were not offered anything which remotely resembled a regime of activities. The only daily out-of-cell activity consisted of an hour of outdoor exercise (2 hours for women and for ill prisoners), which was itself a relatively recent development. The yards used for this purpose were of an insufficient size (23 m²) to allow prisoners to exert themselves physically, and were generally oppressive. ...”
66. The CPT recommended as a priority, amongst other elements, that:
- The living space for inmates should be increased to at least 4 m² per person;
- Adequate in-cell sanitary facilities should be installed to allow greater privacy;
- Programmes for vocational and recreational activities should be developed;
- Sufficient possibilities for daily outdoor exercise should be provided;
- Visiting entitlements should be upwardly revised to enable prisoners to maintain relations with their families (visits to remand prisoners being particularly limited, even non-existent at that time); and
- a study should be made of whether the control of prisoners’ correspondence was causing excessive delays and, if appropriate, remedial action should be taken, particularly with a view to ending the practice of systematic censorship.
67. However, the CPT commented that there was no medical justification for the segregation of prisoners who were HIV-positive or ill with AIDS unless they were known for their unsafe or irresponsible behaviour. Steps needed to be taken to respect medical confidentiality on this subject.
68. In its renewed visit from 17 to 24 February 2004 to the Vilnius [Lukiškės Remand] Prison, the CPT noted the continued, severe overcrowding (up to six prisoners in a cell of seven m²), and that the conditions of detention, whilst varying from one part of that prison to another, nevertheless for the most part remained very poor. These conditions were further exacerbated by the absence of personal hygiene products, the lack of proper clothing for indigent prisoners, insufficient heating, dirty bedding, no access to hot running water or showers, poor ventilation, etc. No improvement was noted regarding any programme of activities for remand prisoners (§§ 69-70 of its Report - CPT/inf (2006)9).
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