ITEMID: 001-57984
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: CHAMBER
DATE: 1996
DOCNAME: CASE OF SINGH v. THE UNITED KINGDOM
IMPORTANCE: 2
CONCLUSION: Violation of Art. 5-4;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - Convention proceedings
JUDGES: John Freeland;N. Valticos
TEXT: 6. Mr Prem Singh was born in 1957 and is currently resident in Wakefield, West Yorkshire.
7. On 19 February 1973, the applicant - then aged 15 - was convicted at Leeds Crown Court of the murder of a 72-year-old woman. He had broken into her home, strangled her, cut her throat and had sexual intercourse with her at around the time of her death. Mr Singh received a mandatory sentence of detention "during Her Majesty’s pleasure" pursuant to section 53 (1) of the Children and Young Persons Act 1933 (as amended) (see paragraph 29 below). Its effect was to render the applicant "liable to be detained in such a place and under such conditions as the Secretary of State [for the Home Department] may direct".
8. In October 1990, having served the punitive part of his sentence ("tariff" - see paragraph 33 below), Mr Singh was released on licence.
9. On 11 March 1991 the applicant was arrested and interviewed at Southmead police station, Bristol, in connection with a number of alleged offences involving deception, and one of using threatening behaviour. He denied the allegations.
10. On 12 March 1991 the Parole Board considered Mr Singh’s case, and on 21 March 1991 his life licence was revoked by the Secretary of State on its recommendation. On 21 March 1991 the applicant received a formal notice of the reasons for this decision, which he was entitled to by virtue of section 62 (3) of the Criminal Justice Act 1967 (see paragraph 43 below). It informed him that the Secretary of State had revoked his licence in the light of:
"(i) Reports indicating that you had lied to and misledyour supervising officers and avoided telling them of avariety of significant events following your release onlicence.
(ii) Your arrest and subsequent appearances beforeBristol Magistrates on several criminal charges includingfraud and using threatening behaviour, set against thecircumstances surrounding the offence for which you weregiven a life sentence in 1973, make it impossible for theSecretary of State to be satisfied that your continuedpresence in the community did not constitute a risk tothe public."
11. On 27 August 1991, having complained to the Avon Probation Service about its recommendation, Mr Singh received a more detailed explanation of his recall in a letter from the chief probation officer. The reason given for his recall was not the alleged offences (which were a matter for the court), but rather his failure to provide accurate information about his circumstances to his supervising probation officer. The letter cited specifically his failure to inform her about the purchase of a motor vehicle; getting a job and giving false information to his employers about his age and character; having a relationship and not telling his girlfriend all about his background; and falling into arrears with his rent.
12. Mr Singh denied the accuracy of most of these allegations, and asked the Parole Board to review the merits of the revocation of his licence. Under section 62 (4) of the Criminal Justice Act 1967 (now section 39 (4) of the Criminal Justice Act 1991 - see paragraph 43 below), the Parole Board was empowered at this stage to take a binding decision for Mr Singh’s immediate release.
13. The Parole Board considered the applicant’s case on 27 August and 19 December 1991. It had before it a number of reports from the probation service and the police, none of which was disclosed to the applicant. On 19 December 1991 the Board decided against recommending Mr Singh’s immediate release. He was not told the reasons for this decision.
14. On 2 March 1992 the criminal charges against Mr Singh (see paragraph 9 above) were dismissed because the prosecution had presented the indictment out of time. Mr Singh asked for his case to be reconsidered in the light of this development, and the Secretary of State accordingly referred it back to the Parole Board, under the procedure set out in section 61 (1) of the Criminal Justice Act 1967 (see paragraph 34 below). On 30 July 1992 the Board again declined to recommend Mr Singh’s release.
15. The applicant then sought judicial review (see paragraph 47 below) of the two decisions of the Parole Board of 19 December 1991 and 30 July 1992. On 20 April 1993 the Divisional Court quashed the Parole Board’s decision of 19 December 1991 on the ground that there had been a breach of natural justice because of the Board’s failure to disclose to Mr Singh all the reports before it. The court held that the applicant was entitled to a fresh consideration by the Parole Board under the terms of section 39 (4) of the Criminal Justice Act 1991, at which the Board would be empowered to order (not merely to recommend) his release (see paragraph 43 below). Lord Justice Evans found, inter alia, that:
"[Mr Singh’s] status is that of a person whose continueddetention can only be justified if the test ofdangerousness, meaning an unacceptable risk of physicaldanger to the life or limb of the public, is satisfied"(R. v. Secretary of State for the Home Department, exparte Prem Singh, unreported, transcript pp. 26F-27B) He further commented that the disclosed facts "scarcely seem able to support a positive answer to [this question]".
16. As a result of the Divisional Court’s decision, Mr Singh received a complete file of the documents which were before the Parole Board. This included a number of detailed probation reports alleging deception of his supervising officers by Mr Singh, and also several hundred pages of witness statements obtained by the police in connection with the criminal charges which had been dismissed (see paragraphs 9 and 14 above).
17. With the help of his solicitor, Mr Singh made written representations to the Parole Board. He denied the allegations contained in the letter from the chief probation officer that he had deceived his supervising probation officer (see paragraph 11 above) and supported his case with witness statements from his girlfriend and landlady.
18. On 18 June 1993 the Parole Board considered Mr Singh’s case. He was not permitted to be present at the review and had no opportunity to give oral evidence or to question those who had made allegations against him. The Board decided not to recommend release, and gave the following reasons:
"The Panel accepted that Mr Singh’s representationsanswered some matters which were of concern to hisprobation officer. However, there was a lack of opennessin his dealings with the Probation Service. The Panelalso considered that the conduct which led to thecriminal charges indicated a serious kind ofdeceptiveness. His behaviour under supervision led thePanel to conclude that the nature of his personality andbehaviour had not changed significantly since theoriginal offence at the age of 15. His failure to complywith the discipline of licence supervision, bearing inmind the original offence, gives rise to considerableconcern."
19. Mr Singh applied for judicial review of this decision, but he withdrew his application on or about 7 March 1994 because he had been offered an early review of his case by the Parole Board.
20. In June 1994 the Parole Board reconsidered Mr Singh’s case in accordance with section 35 (2) of the Criminal Justice Act 1991 (see paragraph 35 below). Mr Singh entered detailed representations and the file before the Board was disclosed to him; it contained recent reports from probation officers, from a psychologist working with Mr Singh and from the Local Review Committee (see paragraph 46 below). All the reports which made a specific recommendation were in favour of the applicant’s release as soon as possible via a pre-release hostel.
21. As the applicant was informed on 21 July 1994 the Parole Board unanimously recommended his release subject to six months in a pre-release employment scheme. The reasons given were as follows:
"On the evidence presented to [the panel], theyconsidered Prem Singh no longer constituted a danger tolife or limb of committing further life threateningoffences to justify his continued detention since hisrecall in March 1991."
22. The applicant was also informed on 21 July 1994 that the Secretary of State was "not prepared to accept this recommendation and [did not agree] to [the applicant’s] release". The Secretary of State so decided in exercise of his statutory powers (see paragraph 43 below).
23. By a communication of 8 September 1994 the applicant was given the reasons for the Secretary of State’s decision. These were that Mr Singh had misled the probation service after his release in October 1990 and had appeared before the magistrates on several criminal charges, although these had subsequently been dismissed on technical grounds. Thus, he had been recalled to prison "following serious breaches of the trust placed in [him] as a life licensee". The Secretary of State was unable to assess accurately whether he was still a threat to the public, because he had spent the three and a quarter years since his recall in a closed prison. He considered that Mr Singh’s relationship with the probation service needed to be tested in the "more challenging environment of an open prison". For these reasons, he believed that Mr Singh should be transferred to an open prison for further testing. His next formal review by the Parole Board would begin in October 1995.
24. Mr Singh applied for judicial review of the Secretary of State’s decision. On 16 March 1995 the Divisional Court quashed the Secretary of State’s decision and ordered him to reconsider it. The court found, inter alia, that the correct test to be applied was whether Mr Singh constituted a danger to the "life or limb" of the public, and that the reasoning process of the Secretary of State had been flawed because he had not properly explained how the findings he had made related to the test of dangerousness (R. v. Secretary of State for the Home Department, ex parte Prem Singh (no. 2), unreported).
25. In September 1995 Mr Singh joined a pre-release employment scheme. His provisional date for release is 18 March 1996.
26. A person who unlawfully kills another with intent to kill or cause grievous bodily harm is guilty of murder. English law imposes a mandatory sentence for the offence of murder: "detention during Her Majesty’s pleasure" if the offender is under the age of 18 (section 53 (1) of the Children and Young Persons Act 1933 (as amended) - see paragraph 29 below); "custody for life" if the offender is between 18 and 20 years old (section 8 (1) of the Criminal Justice Act 1982); and "life imprisonment" for an offender aged 21 or over (section 1 (1) of the Murder (Abolition of Death Penalty) Act 1965). Mandatory life sentences are fixed by law in contrast to discretionary life sentences, which can be imposed at the discretion of the trial judge on persons convicted of certain violent or sexual offences (for example manslaughter, rape, robbery).
The principles underlying the passing of a discretionary life sentence are:
(i) that the offence is grave and
(ii) that there are exceptional circumstances whichdemonstrate that the offender is a danger to the publicand that it is not possible to say when that danger willsubside. Discretionary life sentences are indeterminate so that
"the prisoner’s progress may be monitored ... so that he will be kept in custody only so long as public safety may be jeopardised by his being let loose at large" (R. v. Wilkinson [1983] 5 Criminal Appeal Reports 105, 108).
27. The notion of detention during Her Majesty’s pleasure has its origins in statutory form in an Act of 1800 for "the safe custody of insane persons charged with offences" (Criminal Lunatics Act), which provided that defendants acquitted of a charge of murder, treason or felony on the grounds of insanity at the time of the offence were to be detained in "strict custody until His Majesty’s pleasure shall be known" and described their custody as being "during His [Majesty’s] pleasure".
28. In 1908, detention during His Majesty’s pleasure was introduced in respect of offenders aged between 10 and 16. It was extended to cover those under the age of 18 at the time of conviction (1933) and further extended to cover persons under the age of 18 at the time when the offence was committed (1948).
29. The provision in force at present is section 53 (1) of the Children and Young Persons Act 1933 (as amended) ("the 1933 Act") which provides:
"A person convicted of an offence who appears to thecourt to have been under the age of eighteen years at thetime the offence was committed shall not, if he isconvicted of murder, be sentenced to imprisonment forlife, nor shall sentence of death be pronounced on orrecorded against any such person; but in lieu thereof thecourt shall ... sentence him to be detained during HerMajesty’s pleasure and, if so sentenced he shall beliable to be detained in such a place and under suchconditions as the Secretary of State may direct."
30. In the case of R. v. Secretary of State for the Home Department, ex parte Prem Singh (20 April 1993, cited above at paragraph 15) Lord Justice Evans in the Divisional Court held as follows in respect of detention "during Her Majesty’s pleasure":
"At the time of sentencing, the detention orders under section 53 were mandatory. It is indeed the statutory equivalent for young persons of the mandatory life sentence for murder. But the sentence itself is closer in substance to the discretionary sentence of which part is punitive (retribution and deterrence) and the balance justified only by the interests of public safety when the test of dangerousness is satisfied. The fact that the mandatory life prisoner may be given similar rights as regards release on licence does not alter the fact that the mandatory life sentence is justifiable as punishment for the whole of its period: see R. v. Secretary of State Ex. p. Doody & Others [1993] Q.B. 157 and Wynne v. UK (E.C.H.R. 1st December 1992). The order for detention under section 53 is by its terms both discretionary and indeterminate: it provides for detention ‘during Her Majesty’s pleasure’ I would decide the present case on the narrow ground that, notwithstanding Home Office and Parole Board practice, the applicant should be regarded as equivalent to a discretionary life prisoner for the purpose of deciding whether Wilson rather than Payne governs his case."
(transcript, pp. 24C-25B)
The court accordingly held that the applicant should be afforded the same opportunity as would be given to a discretionary life prisoner to see the material before the Parole Board when it decided whether he should be released after his recall to prison on revocation of his licence. The Parole Board has changed its policy accordingly.
31. However, in a statement in Parliament made on 27 July 1993 (see paragraph 38 below), the Secretary of State, Mr Michael Howard, explained that he included in the category of "mandatory life sentence prisoners" those
"persons who are, or will be, detained during HerMajesty’s pleasure under section 53 (1) of the Childrenand Young Persons Act 1933 ..."
32. In R. v. Secretary of State for the Home Department, ex parte T. and Others [1994] Queen’s Bench 378, 390D, Lord Justice Kennedy in the Divisional Court (with whom Mr Justice Pill agreed) said:
"I see no reason to regard him as having any specialstatus because he was sentenced to detention [during HerMajesty’s pleasure] rather than to life imprisonment,despite what was said by Evans LJ when giving judgment inReg. v. Parole Board, ex parte Singh (Prem)(20 April 1993, unreported). The issues in that casewere very different from those with which we areconcerned. If Hickey had not been sent to hospital hecould hope to benefit from the provisions ofsection 35 (2) of the 1991 Act [on mandatory lifeprisoners] ... It will be recalled that in Hickey’s casethe offence was murder, so the sentence was mandatory notdiscretionary."
On appeal the Court of Appeal stated that in respect of a person sentenced to detention during Her Majesty’s pleasure under section 53 (1) of the 1933 Act for the offence of murder, the relevant provisions on release were those in section 35 (2) of the Criminal Justice Act 1991 (see paragraph 35 below), and not those relating to a discretionary life prisoner (R. v. Secretary of State for the Home Department, ex parte Hickey [1995] 1 All England Law Reports 479, 488).
33. Persons sentenced to mandatory and discretionary life imprisonment, custody for life and those detained during Her Majesty’s pleasure have a "tariff" set in relation to that period of imprisonment they should serve to satisfy the requirements of retribution and deterrence. After the expiry of the tariff, the prisoner becomes eligible for release on licence. Applicable provisions and practice in respect of the fixing of the tariff and release on licence have been subject to change in recent years, in particular following the coming into force on 1 October 1992 of the Criminal Justice Act 1991 ("the 1991 Act").
34. Section 61 (1) of the Criminal Justice Act 1967 ("the 1967 Act") provided, inter alia, that the Secretary of State, on the recommendation of the Parole Board and after consultation with the Lord Chief Justice and the trial judge, may "release on licence a person serving a sentence of imprisonment for life or custody for life or a person detained under section 53 of the Children and Young Persons Act 1933". In this respect no difference was made between discretionary and mandatory life prisoners.
35. By virtue of section 35 (2) of the 1991 Act, persons detained during Her Majesty’s pleasure and those life prisoners who are not discretionary life prisoners (see paragraph 26 above), may be released on licence by the Secretary of State, if recommended to do so by the Parole Board and after consultation with the Lord Chief Justice and the trial judge. The decision on whether to release still lies, therefore, with the Secretary of State.
36. The Secretary of State also decides the length of a prisoner’s tariff. Subsequently to a House of Lords judgment of 24 June 1993 (R. v. Secretary of State for the Home Department, ex parte Doody [1994] 1 Appeal Cases 531, 567G), the view of the trial judge is made known to the prisoner after his trial as is the opinion of the Lord Chief Justice. The prisoner is afforded the opportunity to make representations to the Secretary of State who then proceeds to fix the tariff. Where the Secretary of State decides to depart from the judicial recommendation he is obliged to give reasons. As a matter of practice the prisoner is informed of the Secretary of State’s final decision. In the second, post-punitive phase of detention the prisoner knows that "the penal consequence of his crime has been exhausted" (ibid., 557A).
37. A statement of policy issued by Sir Leon Brittan, then Secretary of State for the Home Department, on 13 November 1983 indicated that release on licence following expiry of the tariff depended on whether the person was considered no longer to pose a risk to the public.
38. On 27 July 1993, the Secretary of State, Mr Michael Howard, made a statement of policy in relation to mandatory life prisoners, stating, inter alia, that before any such prisoner is released on licence he
"will consider not only, (a) whether the period served bythe prisoner is adequate to satisfy the requirements ofretribution and deterrence and, (b) whether it is safe torelease the prisoner, but also (c) the publicacceptability of early release. This means that I willonly exercise my discretion to release if I am satisfiedthat to do so will not threaten the maintenance of publicconfidence in the system of criminal justice".
39. In a number of recent court cases involving persons detained during Her Majesty’s pleasure, it has been stated that the correct test for post-tariff detention was to be whether the offender continued to constitute a danger to the public (R. v. Secretary of State for the Home Department, ex parte Cox, 3 September 1991; R. v. Secretary of State for the Home Department, ex parte Prem Singh, 20 April 1993 - cited above at paragraph 15; R. v. Secretary of State for the Home Department, ex parte Prem Singh (no. 2), 16 March 1995).
40. The 1991 Act instituted changes to the regime applying to the release of discretionary life prisoners following the decision of the European Court of Human Rights in the case of Thynne, Wilson and Gunnell v. the United Kingdom (judgment of 25 October 1990, Series A no. 190-A).
41. Pursuant to section 34 of the 1991 Act, the tariff of a discretionary life prisoner is now fixed in open court by the trial judge after conviction. After the tariff has expired, the prisoner may require the Secretary of State to refer his case to the Parole Board which has the power to order his release if it is satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined.
Pursuant to the Parole Board Rules 1992 which came into force on 1 October 1992, a prisoner is entitled to an oral hearing, to disclosure of all evidence before the panel (see paragraph 45 below) and to legal representation. There is provision enabling a prisoner to apply to call witnesses on his behalf and to cross-examine those who have written reports about him.
42. For the purposes of the 1991 Act, persons detained during Her Majesty’s pleasure are not regarded as discretionary life prisoners (section 43 (2)).
43. Recall to prison of a person released on licence was governed by section 62 of the 1967 Act which reads:
"(1) Where the Parole Board recommends the recall of anyperson who is subject to a licence under section 60 or 61of this Act, the Secretary of State may revoke thatperson’s licence and recall him to prison.
(2) The Secretary of State may revoke the licence of anysuch person and recall him as aforesaid withoutconsulting the Board, where it appears to him that it isexpedient in the public interest to recall that personbefore such consultation is practicable.
(3) A person recalled to prison under the foregoingprovisions of this section may make representations ...
(4) The Secretary of State shall refer to the Board thecase of a person recalled under subsection (1) of thissection who makes representations under the lastforegoing subsection and shall in any event so refer thecase of a person returned to prison after being recalledunder subsection (2) of this section.
(5) Where the Board recommends the immediate release onlicence of a person whose case is referred to it underthis section, the Secretary of State shall give effect tothe recommendation..."
44. Section 39 of the 1991 Act has added that a person recalled to prison shall be informed of the reasons for his recall and of his right to make representations in writing.
45. Section 59 of the 1967 Act set out the constitution and functions of the Parole Board:
"(1) For the purposes of exercising the functionconferred on it by this Part of this Act as respectsEngland and Wales there shall be a body known as theParole Board ... consisting of a chairman and not lessthan four other members appointed by the Secretary ofState.
...
(4) The following provisions shall have effect withrespect to the proceedings of the Board on any casereferred to it, that is to say
(a) the Board shall deal with the case on consideration of any documents given to it by the Secretary of State and of any reports it has called for and any information whether oral or in writing that it has obtained; and
(b) if in any particular case the Board thinks it is necessary to interview the persons to whom the case relates before reaching a decision, the Board may request one of its members to interview him and shall take into account the report of that interview by that member ...
(5) The documents to be given by the Secretary of Stateto the Board under the last foregoing subsection shallinclude
(a) where the case referred to the Board is one of release under section 60 or 61 of this Act, any written representations made by the person to whom the case relates in connection with or since his last interview in accordance with rules under the next following subsection;
(b) where the case so referred relates to a person recalled under section 62 of this Act, any written representations made under that section."
As to the constitution of the Parole Board, Schedule 2 to the 1967 Act further provides:
"1. The Parole Board shall include among its members
(a) a person who holds or has held judicial office;
(b) a registered medical practitioner who is a psychiatrist;
(c) a person appearing to the Secretary of State to have knowledge and experience of the supervision or after care of discharged prisoners;
(d) a person appearing to the Secretary of State to have made a study of the causes of delinquency or the treatment of offenders."
The Parole Board always counts among its members three High Court judges, three circuit judges and a recorder. Cases referred to the Board may be dealt with by three or more members of the Board (Parole Board Rules 1967). In practice, the Board sits in small panels, including, in the case of life prisoners, a High Court judge and a psychiatrist. The judges on the Board are appointed by the Home Secretary (section 59 (1) of the 1967 Act) after consultation with the Lord Chief Justice.
With the exception of the new rules concerning discretionary life prisoners, similar provisions apply under the 1991 Act.
46. Under section 59 (6) of the 1967 Act the Secretary of State established for every prison a Local Review Committee with the function of advising him on the suitability for release on licence of prisoners. It was the practice to obtain this assessment before referring a case to the Parole Board. Before the Local Review Committee reviewed a case, a member of the committee would interview the prisoner if he was willing to be interviewed.
The first review by the Local Review Committee was normally fixed to take place three years before the expiry of the tariff. Local Review Committees were abolished by the Parole Board Rules 1992. The prisoner is now interviewed by a member of the Parole Board.
47. Persons serving a sentence of detention during Her Majesty’s pleasure may institute proceedings in the High Court to obtain judicial review of any decision of the Parole Board or of the Secretary of State if those decisions are taken in breach of the relevant statutory requirements or if they are otherwise tainted by illegality, irrationality or procedural impropriety (Council of Civil Service Unions v. Minister for the Civil Service, [1984] 3 All England Law Reports 935, 950-51).
VIOLATED_ARTICLES: 5
VIOLATED_PARAGRAPHS: 5-4


ITEMID: 001-59099
LANGUAGEISOCODE: ENG
RESPONDENT: SVK
BRANCH: CHAMBER
DATE: 2000
DOCNAME: CASE OF VODENICAROV v. SLOVAKIA
IMPORTANCE: 3
CONCLUSION: Preliminary objection dismissed (non-exhaustion);Violation of Art. 5-4;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award
JUDGES: Christos Rozakis
TEXT: 9. On 30 September 1994 the Trnava District Prosecutor charged the applicant with assault causing bodily harm on the ground that he had hit a neighbour. On 12 October 1994 the Trnava District Court (Okresný súd) issued a penal order by which the applicant was conditionally sentenced to five months’ imprisonment. Upon the applicant’s complaint the District Court quashed the penal order and scheduled a hearing in the case.
10. On 5 December 1994 a hearing was held before the Trnava District Court. It was adjourned because of the applicant’s misbehaviour. A further hearing was held on 21 February 1995. As the applicant did not behave properly, the judge ordered him to be removed from the court building. The hearing was held in his absence. The applicant was convicted of assault causing bodily harm. A conditional five months’ prison sentence was imposed. On 30 March 1995 the Bratislava Regional Court (Krajský súd) dismissed the applicant’s appeal.
11. On 12 May 1995 the Trnava District Office for Investigations (Okresný úrad vyšetrovania) charged the applicant with contempt of court, allegedly committed on 5 December 1994 during the first hearing before the Trnava District Court.
12. On 16 May 1995 the Trnava District Court ordered a psychiatric examination of the applicant in the context of the criminal proceedings. The applicant submitted a certificate from a Bulgarian doctor dated 16 June 1995 and refused to be examined as an out-patient.
13. On 5 June and 7 July 1995 the applicant sought redress from the Constitutional Court (Ústavný súd) alleging that the criminal proceedings were unfair, including the order for his psychiatric examination. By letter of the Constitutional Court of 17 July 1995 he was informed that the Constitutional Court is not superior to the police, prosecutor or ordinary courts and that it is not an appellate body in the ordinary court system. He was further informed that the Constitutional Court has no jurisdiction to change or quash the decisions of ordinary courts or to interfere with their jurisdiction and that judicial decisions can be remedied by the means and according to the procedures prescribed by law.
14. In the meantime, on 11 July 1995, the Trnava District Court had ordered that the applicant be detained for observation in a mental hospital pursuant to Section 116 (2) of the Code of Criminal Procedure. The applicant received the decision on 14 July 1995, and on 15 July 1995 he challenged it.
15. On 17 July 1995 the mental hospital summoned the applicant to be admitted on 20 July 1995.
16. On 19 July 1995 the applicant was handcuffed and escorted by the police to the mental hospital. No warrant was presented. The applicant stayed in the mental hospital until 18 August 1995. From 11 to 13 August 1995 he was granted leave.
17. On 28 July 1995 the applicant’s wife complained to the Prosecutor General’s Office that on 19 July 1995 the applicant had been confined in the mental hospital although he had appealed against the Trnava District Court’s order of 11 July 1995. She claimed that the applicant’s detention in the mental hospital was unlawful.
18. On 17 August 1995 the Bratislava Regional Court dismissed the applicant’s complaint against the Trnava District Court’s order of 11 July 1995. The decision was notified to the Trnava District Court on 28 September 1995. It was not served on the applicant.
19. By letter of 30 August 1995, served on the applicant’s wife on 10 September 1995, the Prosecutor General’s Office informed her that her complaint had been referred, for reasons of competence, to the Bratislava Regional Prosecutor.
20. On 30 August 1995 the prosecution for contempt of court was stayed in the light of the experts’ conclusion that the applicant suffered from a permanent personality disorder which had prevented him from controlling his behaviour during the hearing before the Trnava District Court of 5 December 1994.
21. On 21 September 1995 the Bratislava Regional Prosecutor informed the applicant’s wife that her complaint of 28 July 1995 had been sent, for reasons of competence, to the Trnava District Prosecutor. The applicant and his wife received no further information in this respect.
22. By virtue of Article 130 (3), the Constitutional Court may commence proceedings upon a petition (podnet) presented by an individual or a corporation claiming that their rights have been violated.
23. Article 17 (1) and (2) provide that personal liberty of every individual shall be guaranteed and no one shall be prosecuted or deprived of liberty unless for reasons and by methods set by law. According to Article 17 (6), a person may be committed to or held in a health-care institution without his or her consent only in cases specified by law. Such cases shall be reported to a court within twenty-four hours and the court shall decide within five days. According to Article 17 (7), “a psychological examination of a person charged with an offence is permissible only upon a written court order”.
24. Section 116 (1) provides for the appointment, upon a written order by the court, of two psychiatric experts when there is a need to examine the mental health of the accused. Pursuant to Section 116 (2), if the mental health of the accused cannot be examined in any other way, the court can order detention for observation in an institution. The order can be challenged by a complaint which has suspensive effect.
25. According to Section 167, the accused has a right, at any time in the course of the investigation, to request the rectification of defects in the investigator’s procedure. Such a request, to which no statute of limitation applies, must be submitted immediately to the public prosecutor who is required to deal with it without delay, and to inform the accused about the finding of the review.
26. In the judgment No. I ÚS 79/93 of 15 September 1993 the Constitutional Court, sitting in a chamber of three judges, ordered the release of a patient confined in a mental establishment without his consent. In this case, the patient had been detained for more than two months without any authorisation by a competent ordinary court. He alleged a violation of Article 17 (6) of the Constitution and the Constitutional Court considered the matter in the light of Article 5 § 4 of the Convention. This judgment was not included in the Collection of Findings and Decisions (Zbierka nálezov a uznesení) published by the Constitutional Court and comprising decisions which the plenary session of the Constitutional Court considers important from the legal point of view. The judgment has been neither confirmed nor developed subsequently.
27. In its subsequent practice the Constitutional Court has consistently held that it is not an appellate body in the ordinary court system and that it has no jurisdiction to interfere with proceedings before ordinary courts or to quash their decisions.
VIOLATED_ARTICLES: 5
VIOLATED_PARAGRAPHS: 5-4


ITEMID: 001-105284
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF HELLIG v. GERMANY
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;Violation of Art. 3 (substantive aspect);Non-pecuniary damage - award
JUDGES: Angelika Nußberger;Dean Spielmann;Elisabet Fura;Ganna Yudkivska;Isabelle Berro-Lefèvre
TEXT: 5. The applicant was born in 1953 and lives in Frankfurt/Main.
6. The applicant was serving a prison sentence in Butzbach prison. In October 2000 the Butzbach prison authorities ordered him to move from his single cell to a cell which he would have to share with two other inmates and which did not have a screen or curtain separating the toilet from the rest of the cell.
7. By letter of 11 October 2000 the applicant, referring to a decision given by the Frankfurt Court of Appeal in 1985 in a case concerning a different prisoner, informed the head of Butzbach prison that accommodation in such a cell was generally unlawful and that he refused to move. On that same date, the applicant lodged a motion with the Gießen Regional Court, which was brought to the attention of that court only after the applicant’s transfer to the multi-occupancy cell.
8. On 12 October 2000 the prison staff ordered the applicant to vacate his single cell and announced that they would use force (unmittelbarer Zwang) if he refused to do so. Accordingly, the applicant vacated his cell and was taken to the multi-occupancy cell. At the door of that cell, however, he again refused to move into the cell. Subsequently, a scuffle ensued between the applicant and prison staff. According to the applicant’s submissions, he was kicked and beaten by the prison staff, while he had merely passively resisted being placed into the multi-occupancy cell. According to the Government, the applicant kicked the prison staff.
9. Subsequently, the applicant was forcibly taken to a security cell which had no items which could cause danger (besonders gesicherter Haftraum ohne gefährdende Gegenstände), where he was strip-searched and undressed. It is not clear from the material submitted by the parties whether the applicant remained naked for the whole period of time he spent in the security cell.
10. The security cell had a size of approximately 8.46 square metres and was equipped as follows: two doors with chain link, two cameras, one milky glass pane for daylight, one mattress with fire-proof sheet, one squat toilet, one call system, two windows above the doors, aluminium ceiling with ventilation slits, tiled floor. The temperature of the cell was controlled to ensure comfort, and the meals were served at the usual times.
11. Following his placement in the security cell, the applicant was examined by the prison physician who diagnosed minor bruising on the applicant’s front and his left shin and bruising and a small hematoma on his left thorax. On 12, 13, 16, 18 and 19 October 2000 the applicant was re-examined by the prison physician. According to the physician’s report submitted on 31 October 2000, the injuries would heal without complications; the bruising in the thorax area could, according to medical experience, cause discomfort for a longer period of time.
12. On 14 October 2000 the applicant was visited by a psychiatrist.
13. On 15 October 2000 the prison pastor visited the applicant. In his letter to the police dated 12 January 2001 the pastor made the following statement:
“As the security chain was locked, which permitted to open the door only slightly, I could see that the prisoner was naked. I am not sure whether he sustained injuries which exceeded bruises and refer to the medical report. However, the prisoner was in a very agitated state of mind and talked about having been beaten by prison staff.”
14. On 16 October 2000 the head of the prison administration made the following report:
“Since 12 October 2000 the prisoner is placed in the specially secured room ... Following his medical examination, it was intended to transfer him today to a multi-occupancy cell on station B I. In the presence of the prison guards B. and H. and myself the prisoner Hellig declared that he insisted on his right to be attributed a single cell as provided by the case-law of the Court of Appeal and that he would not leave the specially secured room. If this should be done by force, the prison guards would have to “beat him to death”.”
15. On 17 October 2000 the applicant was visited by the prison psychologist Dr E. who made the following report on his conversation with the applicant:
“I visited Mr Hellig on 17 October 2000 in the segregation cell with the intention of finding a way out of the deadlock situation. However, Mr Hellig proved to be unable to compromise and stubbornly insisted on his request to be transferred to a single cell ... He could hardly imagine to remain in this prison after having been abused in connection with his placement in the segregation cell ... I have the impression that Mr Hellig is so obsessed that he is currently unable to compromise and to discuss a temporary solution. He feels mistreated and deprived of the single cell he previously occupied as a prison worker and station aid. Being a sportsperson and non-smoker, he could not be expected to share a cell with smokers.”
16. The applicant stayed in the security cell until 11.30 a.m. on 19 October 2000 when he consented to being placed in the prison hospital. Thereafter the applicant instituted the following two sets of proceedings.
17. On 25 October 2000 the applicant requested the Gießen Regional Court to declare that his detention in the isolation cell and the force used by the prison authorities had been unlawful. He submitted that he had been kicked and beaten by prison staff even though he had not given the prison guards any reasons to use violence against him.
18. On 8 April 2004 the Regional Court rejected the request. The Court took note of the written statements made by the prison pastor, the head of the prison administration and the prison psychologist (see §§ 14-16, above). It further pointed out that it had been beyond doubt that accommodation in a multi-occupancy cell with toilets that were not separated by screens or curtains from the rest of the cell would have been unlawful, as the Frankfurt Court of Appeal had already established in its earlier case-law.
19. According to the Regional Court the fact that the applicant was taken to the isolation cell was not due to his refusal to move into the multi-occupancy cell. It was in particular not a disciplinary measure to punish him for resisting, but he was detained in the isolation cell because his behaviour constituted a specific risk of violence and physical harm to other persons (section 88 §§ 1, 2 no. 5 of the Prison Act, see “Relevant domestic law” below), which allows for temporary detention in security cells.
20. The court based its findings on the statements of the prison personnel, who had confirmed that the applicant had begun pushing and hitting prison staff and that he had become very aggressive when he was ordered to move to the multiple occupancy cell. According to the official statements made by the prison guards, only the prisoner himself had used violence. In view of the applicant’s violent behaviour it had been necessary for the prison authorities to use force to take the applicant into the security cell in order to prevent him from causing harm to the prison guards.
21. The Regional Court further considered that “it could not be established for certain” whether there was a serious danger of self-injury or suicide during the time of his detention in the specially secured room.
22. Such detention was proportionate as it had not been possible to release the applicant from the cell before 19 October 2000. The applicant had announced that the staff members would have to kill him if they wanted to transfer him forcibly into the multi-occupancy cell. It was thus very likely that he would once again have resisted any such transfer. Therefore the specific risk of violent acts by the applicant persisted until 19 October 2000. Furthermore, the prison psychologist had stated that the applicant had not at all been ready to reach a compromise and, in particular, that he had stubbornly insisted on being transferred to a single cell.
23. On 8 April 2004 the applicant filed an appeal on points of law. He submitted in particular that, under the relevant guidelines, the duration of detention in a specially secured room should not exceed twenty-four hours. It followed that his seven-day placement had been disproportionate.
24. On 27 September 2004 the Frankfurt Court of Appeal declared the applicant’s appeal inadmissible, reasoning that no decision in the matter was required for the purpose of further developing the law or to secure the consistency of the case-law.
25. On 26 October 2004 the applicant lodged a constitutional complaint. He alleged that he had been kicked and beaten before being brought in the security cell, even though he had offered to consent to his placement in the security cell. He further submitted as follows:
“In the instant case, I do not complain about the deprivation of liberty as such. However, the constitutional complaint is directed against the exceptionally severe conditions of my temporary detention (“besonders einschneidende Art und Weise meiner zeitweiligen Unterbringung”) during the execution of sentence.”
26. On 28 December 2004 the Federal Constitutional Court, relying on its Rules of Procedure, refused to admit the applicant’s constitutional complaint, without giving further reasons.
27. On 12 March 2001 the Gießen Public Prosecutor’s Office discontinued the criminal proceedings against the prison staff involved in the applicant’s transfer to the security cell. The Prosecutor’s Office noted that the applicant’s medical examination on 12. October 2000 established that he had sustained bruises. An x-ray taken some days later did not reveal any fractures or other bone injuries. It was thus established that the applicant suffered injuries on the occasion of his transfer into the security cell. It could, however, not be established whether these injuries had been caused by the prison staff, in particular by kicking or beating, or if they had been the unavoidable effect of his forced transfer to the security cell.
28. The relevant provisions of the Prison Act read as follows:
Section 88 (Special Precautions)
“(1) Special precaution may be ordered in respect of a prisoner where, in view of his behaviour or on account of his mental state, there is increased danger of his escaping or danger of violent attacks against persons or property or the danger of suicide or self-injury.
(2) The following measures shall be permissible as special precautions:
...
5. detention in a specially secured room containing no dangerous objects,
...
(5) Special precautions shall be continued only as long as is required by their purpose.”
Section 92 (Supervision by Medical Officer)
“(1) Where a prisoner is detained in a specially secured cell or shackled (section 88 (2) nos. 5 and 6) the medical officer shall visit him soon and, if possible, daily thereafter ...
(2) The medical officer shall be consulted regularly as long as a prisoner is deprived of daily outdoor exercise.”
Section 96 (Principle of Proportionality)
“(1) From among several possible and suitable measures of direct coercion those shall be chosen which will presumably least affect the individual and the general public.
(2) Direct coercion shall not be applied where any damage likely to be caused thereby would obviously be out of proportion to the desired result.”
Section 109 (Request for a Court Ruling)
“(1) A measure regulating individual matters in the field of execution of imprisonment may be contested by requesting a court ruling ...”
“56. The CPT pays particular attention to prisoners held, for whatever reason (for disciplinary purposes; as a result of their ‘dangerousness’ or their ‘troublesome’ behaviour; in the interests of a criminal investigation; at their own request), under conditions akin to solitary confinement.
The principle of proportionality requires that a balance be struck between the requirements of the case and the application of a solitary-confinement-type regime, which is a step that can have very harmful consequences for the person concerned. Solitary confinement can, in certain circumstances, amount to inhuman and degrading treatment; in any event, all forms of solitary confinement should be as short as possible ...”
From the CPT report on Finland 1998 (CPT/Inf (96)28):
“102. It should be added that the unit also contained an "observation cell" in which prisoners considered to be suicidal or likely to injure themselves could be located. Surveillance was maintained via an internally mounted CCTV camera ... The delegation was informed that prisoners placed there would often be stripped of their clothes and left naked in the cell. Such a practice is completely unacceptable.
The CPT recommends that the practice of placing prisoners naked in the observation cell be ended immediately; prisoners placed in this cell should be provided with tear-proof clothing and bedding ...”
From the CPT report on Belgium 2009 (CPT/Inf (2010)24 (translation from the French original):
“130. ... To keep a prisoner naked in a cell constitutes, according to the CPT, degrading treatment. The CPT recommends that this practice be stopped immediately. Specially adapted clothing exists which permits the prisoner to keep a minimum amount of clothing while taking into account the risk of suicide.”
VIOLATED_ARTICLES: 3


ITEMID: 001-107743
LANGUAGEISOCODE: ENG
RESPONDENT: SVK
BRANCH: ADMISSIBILITY
DATE: 2011
DOCNAME: TRANSPETROL, A.S., v. SLOVAKIA
IMPORTANCE: 3
CONCLUSION: Inadmissible
JUDGES: Alvina Gyulumyan;Corneliu Bîrsan;Ján Šikuta;Josep Casadevall;Luis López Guerra;Mihai Poalelungi;Nona Tsotsoria
TEXT: 1. The applicant, TRANSPETROL, a.s. (“the applicant company”), is a joint-stock company established in 1993 under the laws of Slovakia with its head office in Bratislava.
At various stages of the proceedings before the Court the applicant company was or has been represented by Mr J. Drgonec, Ms E. Csekes, Mr Ľ. Novák, Mr O. Korec and Mr M. Krivák, lawyers practising in Bratislava.
2. The Government of the Slovak Republic (“the Government”) were represented by their Agent, Ms M. Pirošíková.
The facts of the case, as submitted by the parties, may be summarised as follows.
3. The applicant company specialises in transporting, storing, buying and selling oil. It has a registered capital of 100,843,372 euros.
4. In the past, including at the time of the contested judgment (nález) of the Constitutional Court (see paragraphs 21 and 55 below), the State, in the person of the Ministry of the Economy (“the Ministry”), owned 51% of the shares in the applicant company. The remaining shares were owned by private parties.
5. At present all of the shares in the applicant company are owned by the State, in the person of the Ministry.
6. The status and functioning of the applicant company are subject to provisions of the Commercial Code (see paragraph 50 in the “Relevant domestic law” section below). It is subject to the jurisdiction of the ordinary courts.
7. Under the Securing of State Interests on the Privatisation of Strategically Important State-owned Enterprises and Joint-stock Companies Act (“the Strategic Interests Act” – see paragraph 48 in the “Relevant domestic law” section below), the shares in applicant company which were held or owned by the State could not be subject to privatisation.
8. Under the Large-scale Privatisation Act (“the Privatisation Act” – see paragraph 49 in the “Relevant domestic law” section below), the applicant company is listed among a list of entities having the character of a natural monopoly (prirodzený monopol).
9. Since 1998 a number of companies and individuals have claimed that they have obtained title to 34% of the shares in the applicant company by way of purchase in the context of a forced sale, carried out pursuant to the enforcement of an adjudicated claim for damages by a third party company against the State.
One such company is a limited liability company, A.
10. The ownership, possession and other rights in respect of the abovementioned shares have been subject to numerous private-law transactions and a large amount of litigation of various kinds.
11. Various persons involved in the transactions mentioned above, including the representative of company A, a judicial enforcement officer and an advocate, were put on trial on charges of money laundering and fraud. The proceedings appear to be still pending, following a judgment convicting the defendants at first instance.
12. More details are summarised in the Court’s decision of 13 November 2003 in the application of Šándor and Others v. Slovakia (no. 52567/99).
13. On 4 November 2002 company A. lodged a petition with the Bratislava I. District Court (Okresný súd) arguing that it was the owner of 5.78% of the shares in the applicant company, which was above the statutory 5% threshold for being entitled to have an extraordinary general meeting (“EGM”) of shareholders in the applicant company called.
Company A. argued that the applicant company had ignored a previous request it had made to call an EGM and sought judicial authorisation to do so itself.
The applicant company was the defendant in those proceedings.
14. On 18 November 2004 the District Court allowed the petition and authorised company A. to call an EGM, having found it established that company A. was the owner of 110 shares in the applicant company.
15. On 27 July 2005, exercising his discretionary power, the Prosecutor General challenged the decision of 18 November 2004 in the Supreme Court (Najvyšší súd) by way of an extraordinary appeal on points of law (mimoriadne dovolanie).
16. Relying on Articles 4 and 20 § 2 of the Constitution (see paragraphs 44 and 45 in the “Relevant domestic law” section below) and on the relevant provisions of the Strategic Interests Act and the Privatisation Act – see paragraphs 48 and 49 in the “Relevant domestic law” section below), the Prosecutor General argued, inter alia, that at the relevant time the acquisition of shares in the applicant company by company A. had been excluded by law. Company A. was accordingly not a shareholder in the applicant company and had no power to call an EGM of its members.
17. On 28 June 2006 the Supreme Court determined the extraordinary appeal for the first time (see below) by allowing it, quashing the decision of 18 November 2004 and remitting the case to the District Court for reexamination.
18. Company A. subsequently challenged the judgment of the Supreme Court of 28 June 2006 by way of a complaint under Article 127 of the Constitution (see paragraph 46 in the “Relevant domestic law” section below).
The Supreme Court was named as the defendant in this complaint. The applicant company had no standing in the constitutional proceedings.
19. On 19 August 2006 the proceedings on the merits of the 2002 petition of company A. (see paragraph 13 above) were terminated following the withdrawal by company A. of its petition on the grounds that the EGM had already taken place and that, consequently, the petition had become moot.
20. The further course of the proceedings, as described below, thus merely concerned the extraordinary appeal of the Prosecutor General (see paragraph 15 above) and the constitutional complaints of company A. (see the preceding paragraph and paragraphs 26 and 30 below).
21. On 11 December 2007 the Constitutional Court (Ústavný súd) found that the Supreme Court had violated the right of company A. to a fair trial.
Consequently, the Constitutional Court quashed the judgment of 28 June 2006 and remitted the case to the Supreme Court for re-examination of the Prosecutor General’s extraordinary appeal.
22. In its reasoning, the Constitutional Court held that “[company A.] had obtained the shares and had done so in the course of enforcement proceedings” and that “it was justified and lawful for [company A.] to assume that it had legitimately become the owner of the shares, which had provided a basis for it to have the power to call the general meeting”.
23. The Constitutional Court also held that it had been wrong for the Supreme Court to have reexamined the question of the lawfulness of the acquisition by company A. of the shares in question. To that end, the Constitutional Court observed that, in the case at hand, the Supreme Court had dealt with proceedings concerning the calling of an EGM and that the acquisition in question had taken place in the course of enforcement proceedings falling within the jurisdiction of the enforcement courts and having been concluded with final and binding effect.
24. On 28 May 2008 the Supreme Court ruled on the extraordinary appeal by the Prosecutor General for the second time. It again quashed the decision of 18 November 2004 and remitted the case to the District Court for re-examination.
25. The Supreme Court disagreed with the legal views of the Constitutional Court and considered that, thereby, the Constitutional Court had unconstitutionally interfered with its jurisdiction.
26. Company A. then challenged the judgment of the Supreme Court of 28 May 2008 by way of a complaint under Article 127 of the Constitution.
27. On 15 January 2009 the Constitutional Court quashed the judgment of 28 May 2008 and remitted the case to the Supreme Court for a fresh determination of the extraordinary appeal by the Prosecutor General.
The Constitutional Court found the contested judgment to be arbitrary, devoid of adequate reasoning and contrary to the Supreme Court’s being bound by legal reasoning expressed by the Constitutional Court (see paragraph 47 in the “Relevant domestic law” section below).
28. On 23 November 2009 the Supreme Court ruled on the extraordinary appeal by the Prosecutor General for the third time. It again quashed the decision of 18 November 2004 and remitted the case to the District Court for reexamination.
29. The Supreme Court considered the judgment of the Constitutional Court of 15 January 2009 to be incomprehensible and pointed out that the handling of the petition at first instance had been chaotic and riddled with numerous irregularities.
30. Company A. challenged the Supreme Court’s judgment of 23 November 2009 under Article 127 of the Constitution. Its complaint (registered under file no. IV. ÚS 161/2010) was declared admissible on 8 April 2010 but the proceedings were eventually discontinued on 3 June 2010 further to the withdrawal by company A. of its complaint.
31. On 4 February 2008 company A. again sought judicial authorisation to call an EGM of the applicant company’s members.
32. On 30 March 2009 the District Court allowed a fresh petition, following which company A. called the EGM for 29 April 2010.
33. The applicant company was the defendant in those proceedings, being assisted by the State in the person of the Ministry, acting as an intervenor for the defendant (vedľajší účastník).
34. In its decision, the District Court relied, inter alia, on the judgment of the Constitutional Court of 11 December 2007 (see paragraph 21 above).
35. On 23 April 2009, upon motion of the State in the guise of the Ministry of the Economy, the Prosecutor General challenged the decision of 30 March 2009 in the Supreme Court by way of an extraordinary appeal on points of law. At the same time, the Prosecutor General requested that the legal effect of the challenged decision be suspended pending the outcome of the proceedings on the merits.
36. On 27 April 2009 the Supreme Court suspended the legal effect of the decision of 30 March 2009 pending the outcome of the proceedings.
37. Nevertheless, on 29 April 2009, the EGM took place.
38. On 20 May 2009 the Supreme Court quashed the decision of 30 March 2009 and remitted the matter to the District Court for reexamination.
39. The Supreme Court held, inter alia, that the legal views expressed by the Constitutional Court in its judgment of 11 December 2007 (see paragraph 21 above) had no directly binding legal effect upon the District Court.
40. On 9 September 2010, upon a complaint under Article 127 of the Constitution by company A., the Constitutional Court found a violation of the complainant’s right to a fair trial under Article 6 § 1 of the Convention, quashed the judgment of the Supreme Court of 20 May 2009 and remitted the matter to the Supreme Court for a new determination of the extraordinary appeal by the Prosecutor General.
41. The Constitutional Court found that there had been irregularities related to the serving of a copy of the Prosecutor General’s extraordinary appeal on company A. and that, in consequence, the Supreme Court could not be said to have ensured service of that appeal on company A. for observations, to the detriment of the latter’s procedural rights.
42. The further course and outcome (if any) of the proceedings in this matter have not been made known to the Court.
43. The above-mentioned pronouncements of the Constitutional Court, and in particular those in its judgment of 11 December 2007 (see paragraph 22 above), had been relied on by various parties in a number of transactions and lawsuits concerning shares in the applicant company. These include purported transfers of the litigious shares from company A. and the other alleged shareholders (see paragraph 9 above) to company B., incorporated in the Czech Republic, and then to company C., incorporated in the United States of America, and proceedings before the Bratislava Regional Court file nos. 27 Cb 77/2002, 7Cbs 86/2005, 7Cbs 84/05 and before the Košice Regional Court file no. 2Cb 1272/2002.
44. Article 4 provides that:
“Mineral resources, caves, underground waters, natural healing sources and streams are the property of the Slovak Republic.”
45. The relevant part of Article 20 § 2 reads as follows:
“An Act of Parliament shall determine which property other than that indicated in Article 4 of this Constitution, which is necessary for the safeguarding of the needs of society, development of the national economy and public interest, may only be owned by the State, a municipality or a specified legal entity.”
46. Under Article 127:
“1. The Constitutional Court shall decide complaints by natural or legal persons alleging a violation of their fundamental rights or freedoms ... unless the protection of such rights and freedoms falls within the jurisdiction of a different court.
2. If the Constitutional Court finds a complaint justified, it shall deliver a decision stating that a person’s rights or freedoms as set out in paragraph 1 have been violated by a final decision, specific measure or other act and shall quash such a decision, measure or act. If the violation that has been found is the result of a failure to act, the Constitutional Court may order [the authority] which has violated the rights or freedoms to take the necessary action. At the same time it may remit the case to the authority concerned for further proceedings, order that authority to refrain from violating the fundamental rights and freedoms ... or, where appropriate, order those who have violated the rights or freedoms set out in paragraph 1 to restore the situation to that existing prior to the violation.
3. In its decision on a complaint the Constitutional Court may grant appropriate financial compensation to a person whose rights under paragraph 1 have been violated.”
47. Details concerning the status, structure and functioning of the Constitutional Court and procedures before it are defined in the Constitutional Court Act.
Pursuant to its section 56(6):
“Should the Constitutional Court quash a final and binding decision, measure or other interference and remit the matter for further proceedings, the body which issued the decision, decided on the measure or carried out other interference shall be bound to e-examine the matter and to decide anew. In such proceedings or process that body shall be bound by the legal view expressed by the Constitutional Court.
48. The Strategic Interests Act (Zákon o zabezpečení záujmov štátu pri privatizácii strategicky dôležitých štátnych podnikov a akciových spoločností) was adopted with effect from 14 September 1995 and remained in force until 12 October 1999. In the relevant part of section 2(3) it provides that:
“Shares in [the applicant company], which are held or owned by the State or [the National Property Fund] cannot be subject to privatisation.”
49. The Privatisation Act (Zákon o podmienkach prevodu majetku štátu na iné osoby) regulates the conditions for transfer of property of the State to legal entities and individuals. Under its section 10(2) the privatisation of enterprises or their parts as well as of proprietary interests in legal entities having the character of “natural monopolies” must always be decided upon by the cabinet after the matter has been debated in Parliament. The applicant company is recognised as having the character of a “natural monopoly” (section 10(2)(i)).
50. The status, structure, organisation and functioning of joint-stock companies is regulated by the Commercial Code (Law no. 513/1991 Coll., as amended), in particular by sections (Oddiel) 1 and 5, chapter (Hlava) 1 of its Part (Časť) 2.
51. On 18 November 2008 and 20 April 2009 the Ministry of the Economy of the Slovak Republic lodged two applications with the Court, which were registered under application numbers 57425/08 and 22213/09 respectively.
52. In applications numbers 57425/08 and 22213/09 the Ministry was represented by Mr M. Krivák, a lawyer practising in Bratislava (for comparison see paragraph 1 above).
53. Relying on Article 34 of the Convention, the Ministry complained that the course and outcome of the proceedings leading up to the Constitutional Court’s judgment of 11 December 2007 (see paragraph 21 above) and a decision of 22 May 2008, by which the Constitutional Court had rejected the Ministry’s complaint against the judgment of 11 December 2007, were contrary to its rights under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1.
54. On 9 June 2009 the Court, sitting in the formation of a Committee under former Article 28 of the Convention, declared applications numbers 57425/08 and 22213/09 inadmissible as being incompatible ratione personae with the provisions of the Convention, within the meaning of Article 34.


ITEMID: 001-102812
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: ADMISSIBILITY
DATE: 2010
DOCNAME: DULEBA v. POLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nebojša Vučinić;Nicolas Bratza;Vincent A. De Gaetano
TEXT: The applicant, Mr Piotr Duleba, is a Polish citizen who was born in 1967 and currently lives in Nowy Sącz.
From 19 October 2005 until 3 June 2006 the applicant was detained in Nowy Sącz Prison. From 25 September 2006 until 17 October 2006 he was held in Wadowice Prison. From 17 October 2006 he was detained in Jastrzębie Zdrój Prison. On an unspecified date in December 2007 or in January 2008 he was once again committed to Nowy Sącz Prison. On 25 August 2008 the applicant was released.
The applicant submitted that in Nowy Sącz Prison he had been held consecutively in three overcrowded cells, without specifying the living space per prisoner. He further submitted that his cell in Wadowice Prison had been so overcrowded that only two people could stand in the middle at the same time. Detainees had to take turns to eat meals at a small table or hold their plates in their laps. Cells in Wadowice Prison were furnished with old and damaged stools, tables and cupboards.
The applicant explained that Jastrzębie Zdrój Prison had been a semiopen facility (zakład półotwarty) where he and nine other detainees were held together in a cell of 22 m². The cell in question had one window and was equipped with bunk beds, tables, cupboards and several stools. The conditions in the entire prison were marked by overcrowding, inadequate sanitation and hygiene, insufficient lighting as well as lack of proper ventilation. The buildings were dilapidated and their walls were cracked due to vibrations resulting from the activity of a nearby coal mine. The shower room was located in a separate building and prisoners were not given enough time to dry or change inside the shower room and therefore had to walk the distance back to the living quarters wet and undressed.
The Government explained that the minimum living space per prisoner in the three cells in Nowy Sącz Prison in which the applicant had been held ranged from 3 to 3.5 m², depending on their occupancy at a particular time. They conceded that temporary overcrowding had existed in Nowy Sącz Prison at the material time but the prison authorities had not been storing information as to the exact number of prisoners being detained in each cell at different times in the relevant period.
According to the Government, the applicant remained in Wadowice Prison for thirteen days in cells measuring from 1.9 to 3 m² per inmate. In Jastrzębie Zdrój Prison the applicant had been detained in a cell with a living space per inmate ranging from 2.17 to 3.1 m², depending on its occupancy at a particular moment. Cells in Jastrzębie Zdrój Prison had been open daily from 7:30 until 18:30 and the applicant could spend almost the entire day outside his cell. The sanitation and hygiene were adequate. The applicant’s cell was properly lit by natural light. The ventilation system had worked properly but for rare situations where detainees themselves would clog ventilation holes with paper. The Government moreover submitted that the prison buildings had been regularly renovated. The shower rooms were well heated with radiators and there had been a hallway in front of its entrance.
The applicant filed a number of complaints about the conditions of his detention with the State authorities, the remand centre’s administration and the Ombudsman, all of which were dismissed.
The applicant did not bring a civil action in tort to seek compensation for the infringement of his personal rights.
(See Siedlecki and 9 other applications v. Poland, no. 5246/03).


ITEMID: 001-96074
LANGUAGEISOCODE: ENG
RESPONDENT: ESP
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF AGUILERA JIMÉNEZ AND OTHERS v. SPAIN
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;No violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression)
JUDGES: Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Josep Casadevall;Luis López Guerra
TEXT: 5. The applicants live in Barcelona. They were employed as delivery men by the company P., against which they brought several sets of proceedings in employment tribunals. In 2001 they set up the trade union N.A.A. to defend their interests and those of the other delivery staff, and sat on its executive committee.
6. The trade union published a monthly news bulletin. On the cover of the bulletin for April 2002 a cartoon with speech bubbles showed a caricature of the human resources manager, G., sitting behind a desk under which a person on all fours could be seen from behind, together with, to one side, A. and B., also employees of the company P., who were watching the scene while waiting to take their turn to satisfy the manager like their colleague. Inside the bulletin were two articles which denounced, in crude and vulgar terms, the fact that those two individuals had testified in favour of the company P. in proceedings that the applicants had brought against their employer. The bulletin was distributed among the workers and displayed on the notice board of the trade union N.A.A. that was located on the company’s premises.
7. On 3 June 2002 the company notified the applicants of their dismissal on grounds of serious misconduct.
8. The applicants challenged that decision before Employment Tribunal no. 17 of Barcelona, which, in a judgment of 8 November 2002, dismissed their claims and found that the dismissals were justified, in accordance with Article 54 §§ 1 et 2 (c) of the Labour Regulations. The tribunal took the view that the company’s decision to dismiss the applicants had been based on a genuine and serious cause, namely the publication and display on a notice board inside the company of a cartoon with speech bubbles and two articles which were offensive and impugned the dignity of the persons concerned. The first article entitled “Whose witnesses? Theirs, of course”, contained caricatures of A. and B., showing them gagged, and the text underneath read as follows:
“We knew who they were and how they behaved, but we didn’t know how far they were prepared to go in order to hold onto their seats and cushy jobs without doing anything.
As employees of P. we earn our living by selling goods in the street. A. and B. earn theirs by selling the workers in the courts. Not content with doing this simply by signing agreements that go against the collective interest, they’ve now gone a step further – they rob and steal with total impunity, in broad daylight, with the confidence of men who feel totally untouchable. They play at being gods.
... but they, the chairman and secretary of the staff representatives, agreed, just like guard-dogs, to roll over and frolic in return for a pat on the back by their master. ...”.
The tribunal noted that the text was a response to what had happened during proceedings brought by the applicants before Employment Tribunal no. 13 of Barcelona, in which A. and B. had appeared as witnesses against the applicants’ interests.
The second article, entitled “When you’ve rented out your arse you can’t shit when you please”, read as follows:
“If you belong to a works council and you have to sign agreements with your employers that will never be honoured, just to keep you quiet, and agree to changes that only benefit their cronies, and to pay-cuts and other sell-outs, then you’ve swapped your dignity for an armchair, [and] you have the dubious merit of achieving the same level of infamy as politicians and policemen. You see, you shut up and you shrewdly agree to all sorts of shenanigans. When you’ve rented out your arse, you can’t shit when you please.
If you’re a despicable ‘professional trade-unionist’ and you’ve thus sold your soul to the union, you’ll never have a surge of sincerity, because your status would be threatened. You say what the union tells you to say, and as the unions are ‘condoms’ on freedom, your lips are sealed just like your anal sphincter, because you’ve rented out your arse and you can’t shit when you please.
You can see the injustices meted out on your colleagues, the totally irrational way of dealing with their problems and the constant persecution to which they are subjected, but say nothing, for fear of drawing attention to yourself. Once upon a time, in the old days, you were a rebel who criticised the system – you would curse conventionalism and rant against the rules and regulations. You were caustic, dynamic, cutting, impulsive, jovial. But a couple of favours received have gradually cooled your fiery temperament, stoked your self-esteem and put the dampers on your feelings. From time to time you have a pang of nostalgia and you would like to fart, but your sphincter is sealed, because you’ve rented out your arse and can’t shit when you please.
You’re fed up with your work, pissed off, anxious, stressed and in despair, because of the longer working hours and the responsibilities, products, promotions and pressures. You could work anywhere, do anything without having to get up at the time others go to bed. You could break everything up, tear it to pieces, crush and demolish it all ... but your hands are tied by credits, IOUs and debts. You are crushed by your new SUV, your children’s after-school activities, and the twenty-five year mortgage on your semi-detached house. And you let yourself be humiliated, you swallow your pride, you shut up and you accept, because when you’ve rented out your arse, you can’t shit when you please”.
The news bulletin was distributed to staff and displayed on the trade union’s notice board on the company’s premises.
The tribunal observed at the outset that the cause of the dismissal was the content of the bulletin and not the applicants’ trade-union membership. As to the bulletin’s content, it took the view that the cartoon and speech bubbles on the cover, together with the articles inside, were offensive and exceeded the limits of freedom of expression and information, impugning the honour and dignity of the human resources manager, of two employees, and of the company itself. Lastly, it noted that the dismissal could not be declared null and void, since it was based on serious misconduct provided for by law, and found that the applicants’ fundamental rights had not been breached.
9. The applicants lodged an appeal against the decision. In a judgment of 7 May 2003 the Higher Court of Justice of Catalonia partly upheld the appeal in respect of two of the applicants, namely Mr Aguilera Jiménez and Mr Beltrán Lafulla. It noted that those two employees had been on temporary sick leave at the time of the incident on which the dismissal was based. Given that they had been absent from the company and that their direct participation in the distribution and publication of the bulletin could not be established, the Higher Court of Justice found that their dismissal had been unfair and ordered the employer either to reinstate them to their posts in the company under the same employment conditions as before, or to pay them appropriate compensation. It upheld the remainder of the judgment under appeal in respect of the other applicants.
10. The six applicants lodged an appeal on points of law, seeking harmonisation of the relevant case-law. In a decision of 11 March 2004 the Supreme Court dismissed their appeal on the ground that the decision produced for purposes of comparison was not pertinent.
11. Relying on Article 24 (right to a fair hearing) of the Constitution, and on Articles 20 and 28 taken together (freedom of expression and association), the applicants lodged an amparo appeal with the Constitutional Court. In a decision of 11 January 2006, notified on 13 January 2006, that court found the appeal inadmissible for lack of constitutional content. As regards the complaint concerning the right to freedom of association, it took the view that there was not enough evidence to show that the applicants’ dismissal had been an act of reprisal on the part of the company because of the proceedings they had brought against it. Similarly, it found that the applicants had not provided sufficient evidence to show that the company’s action was intended to restrict, hamper or prevent the exercise of their right to freedom of association. The applicants had simply expressed their disagreement with the decisions rendered by the courts below, which had found in reasoned decisions devoid of arbitrariness that they had committed the acts of which the company had accused them in their letters of dismissal.
12. As regards the alleged violation of their right to freedom of association, combined with their right to freedom of expression, the Constitutional Court first noted that the latter did not encompass any right to insult others. It pointed out in this connection that the Constitution did not prohibit the use of hurtful, embarrassing or scathing expressions in any circumstances. However, freedom of expression did not protect vexatious expressions which, regardless of their veracity, were offensive or ignominious and were not pertinent for the purpose of conveying the opinions or information in question. Constitutional Court took the view that the applicants’ right to freedom of expression had not been breached, since the cartoons and expressions used by the applicants had been offensive and humiliating for the persons concerned and had impugned their honour and reputation. Moreover, those cartoons and expressions had not been a necessary contribution to the forming of an opinion on the facts that the applicants wished to denounce, and had not therefore been necessary for the exercise of freedom of expression in a trade-union context.
13. The Constitution
“1. The following rights shall be recognised and protected:
(a) the right freely to express and disseminate thoughts, ideas and opinions by word of mouth, in writing or by any other means of reproduction;
...
(d) the right to receive and communicate true information by any means of dissemination. ...
2. The exercise of these rights may not be restricted by any prior censorship.
...
4. These freedoms shall be limited by respect for the rights secured in this Part, by the provisions of the implementing Acts and in particular by the right to honour and to a private life and the right to control use of one’s likeness and to the protection of youth and children.”
“1. Everyone shall have the right to associate freely. Freedom of association shall include the right to form trade unions or to join a trade union of one’s choosing, and the right for trade unions to establish confederations and to set up or join international trade union organisations. No one shall be obliged to join a trade union.
...”
“1. The employer may decide to terminate a contract of employment by dismissing the employee for serious and negligent failure to perform his or her obligations.
2. Non-compliance with contractual obligations shall include:
...
(c) Verbal or physical attacks on the employer or persons working in the company, or members of their families living with them.”
“Form and effects of disciplinary dismissal.
...
7. Justified dismissal shall entail the termination of the contract without any right of compensation ....”
NON_VIOLATED_ARTICLES: 10
NON_VIOLATED_PARAGRAPHS: 10-1


ITEMID: 001-5430
LANGUAGEISOCODE: ENG
RESPONDENT: FIN
BRANCH: ADMISSIBILITY
DATE: 2000
DOCNAME: E.T. v. FINLAND
IMPORTANCE: 1
CONCLUSION: Inadmissible
JUDGES: Georg Ress
TEXT: The applicant is a Finnish national living in Oulunsalo. She is represented before the Court by Mr Mikko Hunnakko, a lawyer in Helsinki.
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 23 September 1993 the Kempele Municipal Assembly (kunnanvaltuusto, kommunfullmäktige) decided to abolish the applicant’s post (personnel secretary) as from 21 April 1994 due to a reorganisation of the organic chart of municipal staff. On 7 February 1994 the Municipal Board (kunnanhallitus, kommunstyrelsen) confirmed her dismissal. As personnel secretary the applicant was responsible for supervising the calculation of salaries and related matters, interpreting and enforcing applicable collective agreements for municipal officials and employees hired on regular labour contracts, planning staff training and drafting the municipality’s work plan as far as relating to personnel administration. The reorganisation entailed delegating certain functions to various departments and officials. Other tasks were taken over by the secretary for agricultural matters and the planning secretary, whereas certain tasks were abolished altogether.
The applicant appealed against both decisions, arguing, inter alia, that the decision to terminate her post had not been supported by adequate reasons, had not been preceded by statutory negotiations with her trade union and had been in breach of the 1986 Gender Equality Act (laki naisten ja miesten välisestä tasa-arvosta, jämställdhet mellan kvinnor och män 609/1986) in that one of the underlying reasons for her dismissal had been her professional absence due to two periods of maternity and parental leave. She further contested the Municipal Board’s decision to confirm her dismissal and its calculation of the period of notice.
On 21 October 1994 the County Administrative Court (lääninoikeus, länsrätten) of Oulu dismissed the applicants’ appeals. It found, inter alia, that her post had not been of such a nature as to require statutory negotiations preceding the dismissal. As the post had not been required by law the Municipal Assembly had been competent to abolish it. The documentation on file did not disclose any indication that the applicant had been discriminated against as a woman. Neither had the period of notice been calculated incorrectly.
On 14 September 1995 the Supreme Administrative Court (korkein hallinto-oikeus, högsta förvaltningsdomstolen), by four votes to one, dismissed the applicant’s appeal. The applicant had forwarded to the court an opinion of the Gender Equality Ombudsman (tasa-arvovaltuutettu, jämställdhetsombudsmannen) dated 13 March 1995. The court had also received observations in reply from the Municipal Board which had not been forwarded to the applicant prior to the court’s decision.