ITEMID: 001-81193
LANGUAGEISOCODE: ENG
RESPONDENT: MDA
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF TOCONO AND PROFESORII PROMETEISTI v. MOLDOVA
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Impartial tribunal;Independent tribunal);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
JUDGES: Nicolas Bratza
TEXT: 5. In 1991, immediately after the collapse of the Soviet Union, Tocono, the Chişinău Municipal Council and the Ministry of Education took the initiative to create the first private high school in Moldova (“the school”). In view of the lack of legislation regulating private education, the Government issued Decision no. 473 of 29 August 1991, in which they confirmed that Tocono was the school's sole founder and that the school was to be financed from the local budget, donations, fees and money invested by Tocono.
6. In the autumn of the same year the school, called the Experimental High School, was opened.
7. On 9 December 1991 the Government issued Decision no. 685 amending the previous decision and naming as co-founders of the school five other legal entities which had invested in it.
8. Between 1991 and 2001 the school existed without State registration, owing to the lack of any legislation governing that area.
9. In 2001, after the enactment of legislation concerning private education, the school was required to obtain State registration.
10. On 10 December 2001, following a request by the school's head teacher, the Government issued Decision no. 1375, repealing Decision no. 685. On 20 December 2001 it was published in the Official Gazette and entered into force.
11. On 28 December 2001, Tocono and a group of teachers from the school, who had joined forces to create a foundation called “Professorii Prometeişti”, registered new articles of association for the school in accordance with the new legislation. The new articles stated that there were only two founders - Tocono and Profesorii Prometeişti- and that the school would thenceforth be called S.R.L. Prometeu. The same day the newly created entity was issued with a State registration certificate.
12. On 10 June 2002, following a request by the school's former co-founders, the Government issued Decision no. 718 repealing Decision no. 1375.
13. On 25 June 2002 four of the former co-founders mentioned in Decision no. 685 brought an action against the Chamber of State Registration and against S.R.L. Prometeu, seeking to have the registration of the new entity S.R.L. Prometeu declared null and void on the ground that they should also have been included as co-founders of the school in accordance with decision No. 685.
14. On 11 December 2002 the Court of Appeal dismissed the action. It found, inter alia, that at the date of registration of the new school (28 December 2001), Decision no. 685 had no longer been in force.
15. The plaintiffs lodged an appeal with the Supreme Court of Justice.
16. On 30 April 2003 a panel of the Supreme Court of Justice, composed of judges V.M., I.P. and V.B., upheld the appeal, quashed the judgment of the Court of Appeal and ruled in favour of the former co-founders. It observed, inter alia, that the request for registration of S.R.L. Prometeu had been lodged with the Registration Chamber on 13 December 2002, when Decision no. 685 of 9 December 1991 had still been in force. It also decided to exclude the Profesorii Prometeişti Foundation from the list of founders of the school.
17. The applicants did not learn of the composition of the panel until the day of the hearing. They alleged not to have known at the time of the hearing that, three years earlier, Judge V.B.'s son had been expelled from the school for misbehaviour, truancy and bad grades, an expulsion carried out by the head teacher of the school and by teachers who formed part of the Profesorii Prometeişti Foundation. As a result of the incident the judge had allegedly threatened the school authorities with retaliation.
18. The relevant parts of the Code of Civil Procedure as in force at the material time read as follows:
Article 19 Grounds for challenging a judge
A judge shall not be admitted to sit in a case or may be challenged in the following cases:
(1) if he or she participated in an earlier stage of the proceedings as a witness, expert, interpreter, representative, prosecutor or registrar;
(2) if he or she is personally interested, directly or indirectly, in the outcome of the proceedings or if there are other reasons to doubt his or her impartiality;
(3) if he or she, his or her spouse or his or her ascendants or descendants have any interest in the outcome of the proceedings...;
(4) if his spouse... is a relative of one of the parties to the proceedings...;
(5) if he or she is a guardian... of one of the parties to the proceedings.
...
Article 23 The request to challenge a judge
If the circumstances indicated in Article 19 ... are present, the judge shall be obliged to withdraw from the case.
For the same reasons the parties to the proceedings may challenge [a judge].
A challenge must be declared, and reasons given, before the examination of the merits of the case. A challenge may be declared later only if the party to the proceedings learned about the reasons for the challenge after the beginning of the proceedings. If the circumstances [indicated above] become known to the court after the examination of the case has begun, the court shall be obliged to inform the parties in order to decide on the matter of [incompatibility].”
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-83454
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF DAGLI v. TURKEY
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1
TEXT: “Unless otherwise specifically provided by law, objection proceedings are conducted without a hearing. If necessary, the public prosecutor [may be] heard.”
“As regards infringements falling within its jurisdiction, the ... magistrates' court makes its ruling, without holding a hearing, through a penal order. The order can only be given in cases of simple or aggravated fines or in relation to offences carrying a maximum prison sentence of three months ...”
“The judge schedules a hearing if he sees an inconvenience in ruling in the absence of one.”
“A hearing shall be held if the objection is raised against a prison sentence imposed by a penal order. (...)
The suspect can be represented by defence counsel during the hearing. (...)
The objections against penal orders (...) are examined by a judge at the criminal court of first instance, in line with the procedure described under Articles 301, 302 and 303. The objection would suspend the execution of the penal order.”
“Where the Minister of Justice has been informed that a judge or court has delivered a judgment that has become final without coming under the scrutiny of the Court of Cassation, he may issue a formal order to the Chief Public Prosecutor requiring him to ask the Court of Cassation to set aside the judgment concerned ...”
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-58803
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: CHAMBER
DATE: 2000
DOCNAME: CASE OF TELE 1 PRIVATFERNSEH v. AUSTRIA
IMPORTANCE: 3
CONCLUSION: Violation of Art. 10 as regards the first period;No violation of Art. 10 as regards the second period;Pecuniary damage - claim dismissed;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings
TEXT: 8. The applicant is a limited liability company with its seat in Vienna. On 30 November 1993 it applied to the Telecommunications Office (Fernmeldebüro, ‘the Telecommunications Office’) for Vienna, Lower Austria and Burgenland for a licence to set up and operate a television transmitter in the Vienna area.
9. On 1 June 1994 the Telecommunications Office dismissed the applicant’s request. It referred to the Constitutional Law of 10 July 1974 guaranteeing the independence of broadcasting (Bundesverfassungsgesetz über die Sicherung der Unabhängigkeit des Rundfunks, 'the Constitutional Broadcasting Law'), which provides that broadcasting shall be authorised by federal legislation and noted that such legislation had only been enacted in respect of the Austrian Broadcasting Corporation (Österreichischer Rundfunk, ‘the ORF’) and within the field of regional radio broadcasting. However, no legislation had been adopted in respect of regional television. It followed that the authorisation could not be granted.
10. On 1 December 1994 the Federal Ministry of Public Economy and Transport (Bundesministerium für öffentliche Wirtschaft und Verkehr) dismissed the applicant's appeal.
11. On 14 December 1994 the applicant filed a complaint with the Constitutional Court (Verfassungsgerichtshof). Referring to the judgment by the European Court of Human Rights in the case of Informationsverein Lentia and Others v. Austria (of 24 November 1993, Series A no. 276), the applicant argued that the Ministry's decision was in breach of its right to freedom of expression as guaranteed by Article 10 of the Convention. In particular, it submitted that the Constitutional Broadcasting Law, if interpreted in a way compatible with Article 10, allowed everyone to broadcast freely unless restrictions were laid down by law. As no law regulating private television broadcasting had been enacted, the refusal of an authorisation to set up and operate a television transmitter lacked a legal basis. Alternatively, if one followed the approach of the Constitutional Court’s judgment of 16 December 1983, namely that any broadcasting had to be explicitly authorised by federal legislation, the current legal situation was unconstitutional as the legislator had failed to enact legislation except for the ORF and private regional radio broadcasting.
12. On 5 March 1996 the Constitutional Court dismissed the applicant's complaint. Confirming its decision of 16 December 1983, it repeated that, according to the Constitutional Broadcasting Law, broadcasting had to be authorised by federal legislation. So far federal legislation had been enacted for radio and television broadcasting by the ORF and for terrestrial broadcasting of regional radio programs. The Broadcasting Ordinance (Rundfunkverordnung) contained the legal basis for passive and, following the Constitutional Court's judgment of 27 September 1995, also active cable broadcasting of radio and television programs as of 1 August 1996. However, no legislation had been enacted for terrestrial broadcasting of television programs, apart from the legislation referring to the ORF. As a result of this legal situation other broadcasters than the ORF were not allowed to organise terrestrial television broadcasting.
13. The Constitutional Court observed that, in the present case, this licensing system was directly prescribed by constitutional law and therefore not subject to review by the Constitutional Court. Moreover, the unlawfulness of terrestrial broadcasting of television programs by private broadcasters originated from the legislator's failure to enact the corresponding implementing legislation. Since this failure was comprehensive and did not only refer to specific areas or questions, the Constitutional Court had no power to review the constitutionality of the legislator's failure to enact the implementing legislation. Only the European Court of Human Rights was competent to find in a legally binding way whether or not the impossibility of terrestrial television broadcasting by stations other than the ORF was in breach of the Convention.
14. According to the Telecommunications Law (Fernmeldegesetz) of 13 July 1949 the "right to set up and operate telecommunications installations is vested exclusively in the federal authorities (Bund)" (section 2 (1)). The latter may however confer on natural or legal persons the power to exercise that right in respect of specific installations (section 3 (1)). No licence is required in certain circumstances, including the setting up of an installation within the confines of a private property (section 5).
The Telecommunications Law of 13 July 1949 was annulled by the 1993 Telecommunications Act (section 48 in conjunction with section 53 (1)) with effect of 1 April 1994. According to section 49 (2) of the 1993 Telecommunications Act, the 1949 Telecommunications Law continued to apply to requests for setting up and operating telecommunications installations which were made before its entry into force.
15. Section 20 (1) of the 1965 Broadcasting Ordinance provides that radio signals must be retransmitted in full to users immediately after being picked up.
Under section 24a of the Ordinance, in the amended version in force since 31 July 1993 (Official Gazette - Bundesgesetzblatt - no. 507/1993) the bearers of a licence to operate a shared aerial may, without having to seek further permission, send text via the cable network, using their own equipment (paragraph 1). By means of this type of teletext it is possible, inter alia, to impart information to the members of a community or the population of a region in the form of alphanumeric symbols, other graphical signs or pages of teletext. This is an additional service provided to subscribers.
These provisions were set aside by the Constitutional Court's judgment of 27 September 1995 (see paragraph 21 below).
16. According to Article 1 of the Constitutional Broadcasting Law
"...
2. Broadcasting shall be governed by more detailed rules to be set out in a federal law. Such a law must inter alia contain provisions guaranteeing the objectivity and impartiality of reporting, the diversity of opinions, balanced programming and the independence of persons and bodies responsible for carrying out the duties defined in paragraph 1.
3. Broadcasting within the meaning of paragraph 1 shall be a public service. “
17. The Law of 10 July 1974 on the Austrian Broadcasting Corporation (Bundesgesetz über die Aufgaben und die Einrichtung des österreichischen Rundfunks) established the Austrian Broadcasting Corporation with the status of an autonomous public-law corporation.
It is under a duty to provide comprehensive news coverage of major political, economic, cultural and sporting events; to this end, it has to broadcast, in compliance with the requirements of objectivity and diversity of views, in particular current affairs, news reports, commentaries and critical opinions (section 2 (1) (1)), and to do so via at least two television channels and three radio stations, one of which must be a regional station (section 3). Broadcasting time must be allocated to the political parties represented in the national parliament (section 5 (1)).
A supervisory board (Kommission zur Wahrung des Rundfunkgesetzes) rules on all disputes concerning the application of the above-mentioned law which fall outside the jurisdiction of an administrative authority or court (sections 25 and 27). It is composed of seventeen independent members, including nine judges, appointed for terms of four years by the President of the Republic on the proposal of the Federal Government.
18. In a judgment of 16 December 1983 the Constitutional Court held that the freedom to set up and operate radio and television broadcasting stations was subject to the powers accorded to the legislature under paragraph 1 in fine and paragraph 2 of Article 10 of the Convention. The Constitutional Broadcasting Law had instituted a system which made all activity of this type subject to the grant of a licence by the federal legislature. This system was intended to ensure objectivity and diversity of opinions, and would be ineffective if it were possible for everybody to obtain the requisite authorisation. As matters stood, the right to broadcast was restricted to the ORF, as no implementing legislation had been enacted in addition to the law governing that organisation.
19. On 8 July 1992 the Administrative Court decided that the Constitutional Broadcasting Law of 10 July 1974 did not cover “passive” broadcasting via cable, in other words the broadcasting in their entirety by cable of programmes picked up by an aerial. Consequently, the mere fact that such programmes originated from a foreign station and were directed principally or exclusively at an Austrian audience could not constitute grounds for refusing the licence necessary for this type of operation.
20. The Regional Broadcasting Law of 9 July 1993 (Regionalradio-gesetz), which came into force on 1 January 1994, governs the licensing of local and regional terrestrial radio stations.
It provides for the allocation of one regional radio licence for each of the Länder and of two such licences for Vienna and for the allocation of local radio licences as required by local demand (section 2). Any programme has to comply with the principles of objectivity and diversity of opinions (section 4).
21. In a judgment of 27 September 1995 the Constitutional Court set aside with effect from 1 August 1996, a passage in the second sentence of section 20 (1) of the Broadcasting Ordinance and its section 24a, i.e. the rules limiting cable distribution to the retransmission of programmes produced by others ("passive cable broadcasting") and the transmission of text, on the ground that it was contrary to Article 10 of the Convention. In that connection the Constitutional Court referred explicitly to the judgment given by the European Court of Human Rights on 24 November 1993 in the case of Informationsverein Lentia and Others v. Austria (loc. cit.). Since 1 August 1996 the transmission via cable of original programmes ("active cable broadcasting") has accordingly been legal, just as passive cable broadcasting already was.
22. The 1997 Cable and Satellite Broadcasting Act (Kabel- und Satelliten-Rundfunkgesetz), which entered into force on 1 July 1997, provides that satellite broadcasting requires a licence by the Broadcasting Authority (section 3 (1)). Cable broadcasting has to be notified to the authority. The notification has to show that the requirements of sections 5 and 6 are complied with (section 4 (1) and (2)). Cable and satellite broadcasters have to be Austrian nationals or legal persons with seat in Austria (section 5 (1)). Certain legal persons such as public law institutions, the political parties and the ORF are excluded from cable and satellite broadcasting (section 5 (2)). The owners of domestic or foreign daily newspapers or weekly periodicals are also excluded from cable and satellite broadcasting (section 6 (1)). When filing a request for a satellite broadcasting licence, the applicant has to show that the requirements of sections 5 and 6 are complied with (section 8 (1)). Further, except where the programme will specialise in a particular area, the applicant has to show that it will comply with the following requirements. It has to respect the principles of objectivity and diversity of opinions and shall reflect public, cultural and economic life of the broadcasting area in an adequate way. Further, it shall give relevant groups of society as well as relevant organisations a possibility to express their opinions (section 8 (2) and section 14).
VIOLATED_ARTICLES: 10
NON_VIOLATED_ARTICLES: 10


ITEMID: 001-60885
LANGUAGEISOCODE: ENG
RESPONDENT: FIN
BRANCH: CHAMBER
DATE: 2003
DOCNAME: CASE OF K.A. v. FINLAND
IMPORTANCE: 3
CONCLUSION: No violation of Art. 8 with regard to taking into care;No violation of Art. 8 with regard to involvement in decision-making process;Violation of Art. 8 with regard to failure to promote reunification;Non-pecuniary damage - financial award;Costs and expenses partial award
JUDGES: Nicolas Bratza
TEXT: 10. The applicant and his wife S. have three children, K., born in 1980, A., born in 1981, and J., born in 1986. S. suffers from mental problems and is on early retirement. On 28 January 1992 the Social Welfare Office of the relevant city was contacted by a private individual raising a suspicion that the children were being sexually abused by their parents. The matter was considered by the child welfare support group of the local Social Welfare Board (sosiaalilautakunta, socialnämnden) on 5 February 1992. The group included Drs H.L. and U.K. of the Central Hospital located in the same city, the school welfare officer, a nurse of the child welfare clinic, the leading psychologist of the family advice centre and the director of J.’s nursery. Since no proof of incest was found, no further action was taken.
11. From 24 to 29 February 1992 J.’s development was monitored in the children’s ward of the Central Hospital. The examination revealed no signs of sexual abuse. On 16 March 1992 his nursery notified the social welfare authorities that he had shown a strong regression after having remained at home with his mother for one week following his hospital stay, and that similar regression had appeared whenever he had been spending longer periods at home.
12. Between 27 and 30 April 1992 the social welfare authorities were contacted on three further occasions with regard to the family. The information received again raised a suspicion that the mother was sexually abusing the children. It was alleged that the children were watching pornographic films, that the mother was walking around at home nearly naked and that she was using sexually explicit language when talking with and about the children. The parents were allegedly also consuming large quantities of beer on a daily basis.
13. The child welfare support group again considered the matter on 29 April, discussing for the first time the possible need to place the children in public care, and on 25 May 1992. On the same day social officials, the school welfare officer and the school nurse interviewed K. and A. together with their parents. According to the social welfare officer’s entry in the Board’s records, the daughters had confirmed the suspicions of sexual abuse, whereas the parents denied it. According to the applicant, the parents did not attend this interview. Moreover, A. had denied having been sexually abused by her parents, whereas K., when prompted to discuss her breasts, had stated that the mother had touched them in the sauna.
14. The parents consented to having the children undergo an examination in the child psychiatric department of the Central Hospital. The children were admitted to the Central Hospital on 25 May 1992 and their examination took place between 1 and 17 June 1992. Social welfare officials were in contact with the parents on 1 and 9 June 1992, raising the possibility of taking the children into public care. The parents objected to any such measure.
15. By emergency orders of 12 June 1992 the children were placed in public care in pursuance of section 18 of the Child Welfare Act (lastensuojelulaki, barnskyddslagen 683/1983) with a view to ensuring that the incest investigation could be completed. The Court has not been provided with copies of these orders which were apparently issued by the Chairman of the Social Welfare Board on its behalf. In the care orders of 24 June 1992 the Board referred to its decision of 12 June 1992, at paragraph 24 of the minutes, to issue such orders. The social welfare office’s case reports contain no entry of that date recording the emergency care. According to the Government, the orders of 12 June were grounded on the need “to ensure the investigations concerning incest following the closing of department B 14 of the Central Hospital of S. and in order to place the children in the children’s home of [P.]”. The Government explained that as the child psychiatric examination had not been finished by that date – the day when the children’s ward was closing due to the summer holidays of the staff – it was necessary to issue emergency care orders allowing for the examination to be completed and for a final assessment of the possible need for further measures.
16. On 15 June 1992 the parents were interviewed at the child psychiatric department by Dr H.L. The interview was followed through a one-way mirror by the two psychologists in charge of examining the children, a doctor and a nurse from the children’s ward, the children’s nurse at the children’s home, a social worker and a nurse from the child psychiatric clinic as well as the social welfare official in charge of the case. The interview was not recorded. The parents were informed that clear evidence had been found of the sexual abuse of the girls, the parents’ heavy drinking and domestic violence also directed against the children. The parents denied the sexual abuse and did not, in the opinion of the working group, realise the gravity of the situation.
17. In letters of 22 and 23 June 1992 M. and E. informed the Social Welfare Board of their readiness to serve as lay helpers to the family, whom they had known for a long time. M., a foster parent herself, stated that the parents and, in particular, the applicant had been taking good care of the children. E., whose daughter had been looked after by S. occasionally, stated that the family was leading a settled and normal life. The applicant’s employer attested to his steady employment and the fact that he had not been unnecessarily absent during the preceding year.
18. On 24 June 1992 the Social Welfare Board upheld the emergency orders after having heard the parents in person. The parents had also submitted written observations in which they, inter alia, rejected the allegations of sexual abuse contained in the documents to which they had had access. They also assured the Board that they had given up consuming beer. In addition to the parents’ written observations and the submissions indicated in the preceding paragraph, the Board had before it a report by the school nurse and school welfare officer dated 29 May 1992 in which they recounted their interview with A. and K. on 25 May 1992. It had also received an opinion by the director of J.’s day care centre.
19. The Social Welfare Board reasoned as follows:
“1. In addition to the previously appearing difficulties relating to [the parents’] mental health and financial situation, incest has been found to have been directed against the children in the family, which seriously endangers their development and health. In addition, the parents have been consuming alcohol on an everyday basis over a long period of time. In these circumstances the children are not able to receive such care and support from their parents as their age would warrant.
2. The family has been receiving assistance for domestic chores on a regular basis, in an attempt to support their survival as a family in spite of their problems. In order to support the children’s development they have been provided with day care. Subsistence allowance has been granted whenever necessary, in spite of [the parents’] income. As the incest is linked to other serious problems it is not possible to ensure the children’s development and health in their home by affording open-care assistance.
3. The public care and the children’s placement out of their home (sijaishuolto, vård utom hemmet) will enable them to grow up in secure, stable and stimulating conditions, where they can reach, as best as possible, the stage of development typical for children of their age.”
20. The Board ordered that the public care was to be implemented as follows:
“The children’s contact with their parents and other persons important to the children will be supported by organising meetings in the children’s home, as need be. The [children’s] need for out-of-home care is of long-term nature. Their first placement will be in the children’s home and the possibility of providing foster care will be explored at a later stage. The children are in need of special support in the form of therapy, which can be afforded on the premises of the children’s home. The overall situation of the family will be taken care of in co-operation with the child psychiatric clinic and the mental health office.”
21. The Board decided to reconsider the care orders under section 17 of the Child Welfare Act within thirty days from the date of the emergency care orders, in pursuance of section 18, subsection 2, of the said Act.
22. In an opinion of 25 June 1992 Dr H.L. drew the following conclusions:
“The investigations have shown that [K. and A.] have been sexually abused by their mother apparently for several years. The father has not been able to protect his daughters, even though aware of the abuse. The family conditions seriously endanger the psychological and physical development of all of the children (the serving of alcohol, violence). The children have to use an unreasonable part of their psychological energy on being concerned about themselves, their siblings, their parents and the family situation in general. This renders the children insecure, distressed, frightened and depressed. In my opinion the parents, even if supported by open-care assistance, are not able to secure the children’s situation sufficiently and cater to their physical and psychological needs. The burden caused by the family’s situation can already be seen in the disturbed psychological development of the children. In my opinion their physical and psychological development will be seriously endangered if they are returned to their biological parents. In this situation the biological parents ... also need psychiatric help and support. To this end they have been recommended to continue making appointments at the Mental Health Office. The practical arrangements for providing psychotherapy to the children will be considered in the autumn. For now, priority must be given to taking child welfare measures.”
23. On 6 July 1992 the parents, heard by social workers, maintained their opposition to the public care of their children. The invitation to that meeting stated that the case-file would be available to them for consultation. On 13 July 1992 the Social Welfare Board heard the parents, who denied the allegations concerning abuse and neglect of the children. They handed in written observations as well as a copy of J.’s patient records at the local Health Centre, arguing that they had regularly used its services in matters relating to the children’s health and that nothing in the records suggested that J. had been subjected to physical violence. The parents requested that the Board hear their daughter’s teachers, domestic helpers and others familiar with conditions in the family. They further requested that lay helpers or support families be appointed for the family. They objected to a categorical statement made by one social welfare official to the effect that they would not get their children back.
24. On the same day the Board maintained the public care on the grounds relied on in its decision of 24 June 1992. The parents appealed to the competent County Administrative Court (lääninoikeus, länsrätten) without the assistance of legal counsel. In a statement to the court M. also questioned the care orders. On 19 October 1992 the County Administrative Court, without having held an oral hearing, rejected the appeal and confirmed the public care orders with the following reasoning:
“According to the evidence transpiring from the documentation on file, the shortcomings in the children’s care and the other conditions in their home seriously jeopardise the children’s health and development. The open-care assistance has proved to be insufficient and care outside the home has been deemed to be in the children’s best interests. The Social Welfare Board has therefore been under an obligation to place [the children] in the care of [the Board].”
The parents appealed to the Supreme Administrative Court (korkein hallinto-oikeus, högsta förvaltningsdomstolen), requesting an oral hearing.
25. The care plan was reviewed at a meeting on 7 December 1992 attended by the parents. The parents and the children would continue to meet three times a week and psychotherapy was to be provided to the children starting the same month. The parents objected to foster care for the children and preferred to await the outcome of the appeal proceedings. According to the Government, meetings took place four times a week from 12 June to 20 November 1992.
26. The care plan was again reviewed on 26 February 1993 at a meeting attended by the applicant. The children and the parents had continued to meet three times a week and the children had been on three weekend leaves to visit relatives. The possibility of placing the children in foster care was again raised but the applicant remained opposed to such care, preferring to await the outcome of the appeal. He was told that the Supreme Administrative Court would not necessarily reverse previous decisions and that the foster care needed to be planned at a sufficiently early stage. Moreover, on 17 February 1993 the children themselves had been consulted about their possible foster care.
27. On 16 March 1993 the Supreme Administrative Court rejected the parents’ appeal without holding an oral hearing and without adducing further reasons.
28. The care plan was again reviewed on 5 April 1993 in the presence of the parents. They were told a decision now had to be made as to whether the children should remain in the children’s home or be placed in a foster family. When consulted by a social welfare official the children had preferred to be placed in a foster family, “if they could not return home”. The applicant stated he would pursue his attempts to have them returned home. Meanwhile, they should stay in the children’s home. The applicant was told that even if the children were placed in a foster family, they would continue to see their biological parents, “although naturally not as frequently”. The meeting was adjourned at the applicant’s request until 13 April 1993. At that meeting the parents were informed that a foster family had already been found and that the children had repeated their willingness to move there, “since their return to their [original] home was not possible”. The parents were informed that the Social Welfare Board would receive a proposal for transferring the children into the foster family, since such care was in many respects a better alternative than care in an institution, considering that the public care was going to continue and given the children’s best interests.
29. At a further meeting on 31 May 1993 the parents were informed that between 1 July 1993, when the children would be transferred to the foster family, and October-November 1993 they would not be able to meet with the children. Subsequently, four meetings a year would be organised. According to the care plan of 1 June 1993, the temporary absence of meetings was aimed at ensuring a peaceful implementation of their transfer and adaptation to their new family, school and nursery. The care plan was to be reviewed at the end of 1994 or earlier, if necessary.
30. On 16 June 1993 the Social Welfare Board decided to transfer the children into foster care and adopted the updated care plan. It noted that the family conditions had been deemed seriously to endanger the children’s development and, as the matter concerned incest, their future health and development could only be secured by long-term foster care. Placing them in a foster family was thus in their best interests. The Board had regard to a written statement by the director of the children’s home and a joint statement by the leading social welfare official, the aforesaid director and the children’s individual nurses.
31. The applicant appealed, seeking to have the public care revoked or, in the alternative, to have meetings organised more frequently and to have the care plan reviewed at the latest in December 1993. On 12 October 1993 the County Administrative Court declined to examine the merits of the appeal, as it was not competent to examine, in the first instance, the request for termination of the care. The adoption of the care plan had not comprised any binding decision on the applicant’s right to see his children. Any access restriction had to be ordered separately by the Social Welfare Board pursuant to section 25 of the Child Welfare Act. The expected time-limit for reviewing the care plan had the character of a guideline, since under the law such a plan was to be reviewed whenever necessary. The County Administrative Court relied on sections 11, 20, 24 and 25 of the Child Welfare Act and on section 4 of the Child Welfare Decree. The applicant did not appeal further to the Supreme Administrative Court in respect of the decision to transfer the children into foster care.
32. On 1 November 1993 the applicant requested that the public care be terminated. On 19 January 1994 the Social Welfare Board refused the request. It found that continued public care was in the best interests of the children, considering “the difficulties relating to the mental health and the use of alcohol as well as the incest directed against the children”, which had formed the background to their placement in public care. In a meeting with the leading social welfare official on 8 December 1993 and in their written statements of the same day K. and A. had stated their wish to remain in the foster family. J. had not been heard due to his young age. The Board also had regard to Dr H.L.’s opinion of 25 June 1992. Moreover, in a written statement of 30 December 1993 two teachers of J.’s nursery had attested to his gain of self-confidence. The foster parents noted that the children were adapting to the foster family. It was therefore in the children’s best interests to remain there. The Board also had regard to a one-page background summary by leading social worker P.V.
33. In his appeal the applicant stated, inter alia, that he would move away from his wife and request sole custody of the children. In its opinion to the County Administrative Court the Social Welfare Board maintained its view that the biological parents’ living situation had not changed significantly. Terminating the public care would therefore not be in accordance with the children’s best interests.
34. In an entry into the case-notes on 18 April 1994 social worker P.V. wrote that the divorce proposed by the applicant would change nothing, as the children had been placed in long-term care, “up to their adulthood, in my opinion”.
35. On 6 June 1994 the County Administrative Court rejected the appeal with the following reasoning:
“According to the evidence transpiring from the documentation on file, the County Administrative Court considers that the need for public care outside the [children’s original] home still exists. The Social Welfare Board has therefore been under an obligation to maintain the public care of the children.”
36. On 30 November 1994 the Supreme Administrative Court rejected the applicant’s further appeal without adducing further reasons.
37. According to the care plan adopted on 28 February 1997 the biological parents had not, at a meeting on 17 January 1997, expressed any wish to meet the children more frequently. On 10 April 1997 the leading social welfare official invited the parents to clarify their wishes in respect of meetings with the children. The parents, now represented by counsel, requested that unsupervised meetings with their children be allowed in their home every weekend during one day. They stressed that the access restrictions should be based on the circumstances at that time and not on the events and allegations described in Dr H.L.’s opinion of 1992. K. and A. wished to have at least six meetings year, whereas J. and the foster parents objected to any increase.
38. On 6 May 1997 the local Basic Welfare Board (perusturvalautakunta, grundtrygghetsnämnden; previously the Social Welfare Board) maintained the access restriction but allowed six supervised visits a year. The restriction was to remain in force until the respective children had turned 18, i.e. until 8 May 1998, 30 May 1999 and 14 August 2004. The Board recalled the incest as established in Dr H.L.’s opinion of 1992 and also had regard to the children’s own opinions.
39. The parents’ appeal was rejected by the County Administrative Court on 17 October 1997, except with regard to the access restriction applicable to J., which was ordered to remain in force only until 30 May 1999. The parents were refused cost-free proceedings, as domestic law did not provide for such an award in respect of access restrictions.
40. On 8 May 1998 K. reached the age of majority and her public care ceased pursuant to section 20 of the Child Welfare Act.
41. According to the care plan adopted on 14 January 1999, A. and J. and the biological parents would be allowed to meet three times up to the end of May 1999.
42. According to the care plan adopted on 7 May 1999, J. and his biological parents would be allowed to meet twice a month up to the end of 1999. As from the end of August 1999 the meetings would no longer be supervised.
43. On 30 May 1999 A. reached the age of majority and her public care ceased.
44. According to the care plan adopted on 31 January 2000, J. and his biological parents would be meeting once a month. The plan was preceded by several consultations with the biological and foster parents. The applicant had requested that meetings be allowed with the same frequency and that every other meeting take place over a weekend in the home of the biological parents, whereas J. had favoured one meeting a month involving no overnight stay.
45. On 28 February 2000 the biological parents again requested the Social Welfare Board to terminate J.’s public care. On 13 March 2000 S. informed a social welfare official that she was no longer in therapy. According to a case entry, she was told that J. now needed to undergo a child psychiatric examination. The request for a termination of J.’s care was apparently refused at a later date.
46. No police investigation was conducted into the suspected incest or sexual abuse of the applicant’s children, and no request to that end was made by the social welfare authority.
47. In support of their observations to the Court the Government have adduced extracts from the Mental Health Office’s patient records concerning the applicant and his wife. The extracts contain social welfare official P.-N.J.’s summaries of their statements during some thirty visits which they paid to the Office, either together or separately, between 17 June 1992 and 19 August 1996. One summary is written by R.L., a specialised medical doctor. The summaries also contain an evaluation of certain statements as well as of the parents’ conditions both prior to and after the taking into care of their children.
48. The material submitted by the Government also feature extracts from A.’s patient records at the Central Hospital, dated in June and September 1993 and containing statements by her therapist P.L.
49. The Government have also relied on notes drawn up in November 1997 by a nurse of the children’s home after she had supervised a meeting between the children and their biological parents.
50. The Government have furthermore produced a report by Dr H.L. on 4 September 1996 according to which the out-of-home placement of the children had been successful and they were no longer in need of therapy. The circumstances were nevertheless not such as to support a termination of the public care.
51. In a further report dated 25 October 2000 Dr T.S., a specialist in child psychiatry at the Central Hospital of S., concludes however, inter alia, that J.’s foster parents are able to see his need for therapy.
52. Finally, the Government have also adduced information obtained from the municipal legal aid office and relating to the applicant’s contacts with that office in 1994.
53. The relevant legislation is outlined in the Court’s judgment in K. and T. v. Finland ([GC], no. 25702/94, §§ 94-136, ECHR 2001-VII). Those and further provisions of particular relevance to the present case are described below.
54. When the need for child welfare is caused primarily by inadequate income, deficient living conditions or lack of housing, or when these factors constitute a serious obstacle to the rehabilitation of a child and family, local authorities must provide adequate financial support without delay, and improve the family’s housing conditions. Open-care assistance includes both general support measures in accordance with the Social Welfare Act (sosiaalihuoltolaki, socialvårdslag 710/1982) and specific assistance, inter alia by appointing a lay helper or a support family, by providing adequate therapy and by assisting the child in his or her personal needs through financial and other support. The assistance shall be provided in co-operation with the child and its parents or other carers (section 13 of the Child Welfare Act).
55. According to section 16 of the Child Welfare Act, the Social Welfare Board shall take a child into care and provide substitute care for him or her out of the home if (a) the child’s health or development is seriously endangered by lack of care or other conditions at home, or if the child seriously endangers his or her health and development by abuse of intoxicants, by committing an illegal act other than a minor offence, or by any other comparable behaviour, (b) the measures of assistance in open care are not appropriate or have proved to be inadequate; and (c) substitute care is considered to be in the best interests of the child. Substitute care shall be provided without delay where it is needed and is in the best interests of the child (section 9, subsection 2). The public care ceases when the child turns 18 (the age of majority) or marries (section 20).
56. If a child is in imminent danger for a reason stated in section 16 of the Child Welfare Act or is otherwise in need of an urgent care order and foster care, the Social Welfare Board may take him or her into care without submitting the decision to the County Administrative Court for prior approval (section 18). An emergency care order shall expire within fourteen days of the decision, unless referred for reconsideration under section 17 of the Child Welfare Act. An ordinary care order pursuant to section 17 must be issued within thirty days, or on special grounds within sixty days, of the emergency order. Both ordinary and emergency care orders may be appealed to the administrative courts.
57. The Social Welfare Board shall terminate the public care when there is no longer any need for such care and an out-of-home placement, provided such termination is clearly not contrary to the best interests of the child (section 20).
58. In accordance with Section 56 of the Social Welfare Act the social welfare authorities are entitled to obtain the necessary information from other authorities in the performance of their work, without prejudice to the obligation to respect confidentiality.
59. If, in the course of his or her activities, an employee or elected official in health care, social welfare, education, the police or a parish finds out that a child is in evident need of family-oriented or individual child welfare, he or she shall notify the Social Welfare Board without delay. Any other person may also contact the Social Welfare Board to this end (section 40 of the Child Welfare Act).
60. The municipality may appoint a support group to assist the Social Welfare Board in child welfare matters. The group shall consist of representatives of the social authorities, experts on children’s growth and development as well as other specialists (section 42 of the Child Welfare Act).
61. The child’s custodians, biological parents and de facto carers shall be heard in respect of a proposal to issue or revoke a public care order or to place a child outside his or her original home. They shall further be notified of the decision taken (section 17, subsection 1, of the Child Welfare Act, as amended by Act no. 139/1990). The hearing procedure is governed by the Administrative Procedure Act (hallintomenettelylaki, lag om förvaltnings-förfarande 598/1982). Under section 15 of the said Act a party shall be afforded the opportunity to reply to any claims put forward by others as well as to any evidence that may affect a decision to be taken. The Administrative Procedure Act does not lay down any minimum period of time which a party shall have at his or her disposal for preparing such a reply. A matter may be decided without a preceding hearing of a party inter alia if such a hearing would be manifestly unnecessary, would jeopardise the purpose of the decision or if the decision cannot be postponed. Section 17 of the Administrative Procedure Act requires that the competent authority duly investigate the matter before it and ensure the equality of the parties.
62. A child who has attained the age of 15 is entitled to state his or her opinion in child welfare matters. A child who has attained the age of 12 is entitled to be heard as stipulated in section 15 of the Administrative Procedure Act; he or she is also entitled to demand the social services and other support measures (section 10, subsection 2, of the Child Welfare Act).
63. According to section 24 of the Child Welfare Act, a child who is being cared for outside his or her original home shall be ensured those important, continuous and secure human relations which are important for his or her development. The child is entitled to meet his or her parents and other close persons and to keep in touch with them (subsection 1). The Social Welfare Board shall support and facilitate the child’s contacts with his or her parents and other close persons (subsection 2).
64. According to section 25 of the Child Welfare Act and section 9 of the Child Welfare Decree (lastensuojeluasetus, barnskyddsförordning 1010/1983), the Social Welfare Board or the director of a children’s home may restrict the right of access of a child in foster care to its parents or other persons close to him or her if (a) such access clearly endangers the development or safety of the child; or if (b) such a restriction is necessary for the safety or security of the parents, or the children or staff in the children’s home. The restriction shall be limited in time. It shall mention the persons whose rights are being restricted, the kind of contacts concerned by the restriction and the extent of the restriction.
65. Any decision concerning public care, the transfer of a child into foster or other care outside his or her home, access restrictions and isolation of the child shall be drawn up on a form approved by the Ministry for Social Welfare and Health Affairs (section 14 of the Child Welfare Decree, as amended by Decree 421/1992 which entered into force on 1 July 1992).
66. The care plan to be drawn up in respect of a child in public care shall mention (a) the purpose and objectives of the placement; (b) what kind of special support will be organised for the child, for the persons in charge of the child’s care and upbringing and for the child’s parents; (c) how the child’s right of access to its parents and other persons close to the child will be organised; and (d) how after-care is going to be organised. According to section 4 of the Child Welfare Decree, the care plan shall be elaborated in cooperation with those involved.
67. A county administrative court’s decision in respect of a public care order, the transfer of a child into foster care or the termination of public care may be appealed further to the Supreme Administrative Court. Other decisions of a county administrative court relating to child welfare measures cannot be so appealed (section 37 of the Child Welfare Act).
68. According to the Act on Cost-Free Proceedings (laki maksuttomasta oikeudenkäynnistä, lagen om fri rättegång 87/1973), as in force at the relevant time, a physical person who was a party inter alia to a case before an administrative court involving the taking into public care of a child, the child’s out-of-home placement or the termination of such care, could be granted cost-free proceedings in full or in part if he or she could not without difficulty meet all costs and expenses. No grant was to be made, however, if the case was of minor importance to the party (sections 1-2).
69. The grant of cost-free proceedings covered, inter alia, the fees of the legal counsel whom the competent court had appointed or approved under the 1973 Act. If a party who had been granted cost-free proceedings was unable to defend his or her rights and interests in an appropriate manner without the assistance of counsel, the court was under an obligation to appoint one (sections 7 and 10).
70. The Act on Cost-Free Proceedings excluded from its scope proceedings concerning, for example, an access prohibition issued on the basis of the Child Welfare Act.
71. Under the 1973 Public Legal Aid Act (laki yleisestä oikeusavusta, lagen om allmän rättshjälp 88/1973), as in force at the relevant time, a person who, given his or her financial situation, could not without difficulty afford to seek legal assistance, was entitled to request free assistance from the municipal legal aid office, provided the matter was not of minor significance or abusive in nature (sections 1-2 and 14). If the person qualified for such assistance in full or in part but the local legal aid office in question was unable to provide it in exceptional cases, for example due to the particular nature of the matter or due to a lack of confidence between the applicant and the local legal aid counsel, the applicant was to be directed to a private practitioner or to a legal aid office in another municipality. The fees and costs incurred on account of such a grant were to be covered in part or in full by the municipality in which the applicant was resident (sections 13-14 and 17).
72. The municipal legal aid board’s decisions could be appealed against in accordance with the rules in the 1976 and 1995 Municipalities Acts (kunnallislaki, kommunallag 953/1976 and 365/1995) on the procedure for challenging decisions of municipal organs (section 30 a of the Public Legal Aid Act, as in force up to 1 January 1997).
73. The Public Legal Aid Act did not exclude the provision of legal aid in the proceedings before a social welfare board relating to the public care of a child or related access restrictions.
VIOLATED_ARTICLES: 8
NON_VIOLATED_ARTICLES: 8


ITEMID: 001-70186
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF SABRI TAS v. TURKEY
IMPORTANCE: 4
CONCLUSION: Violation of Art. 5-3;Violation of Art. 6-1;Remainder inadmissible
TEXT: 6. The applicant was born in 1964 and lives in Batman.
7. On 7 February 1993 the applicant was taken into custody in Batman by police officers from the Batman Anti-Terrorist Branch and he was held in custody until 5 March 1993.
8. On 5 March 1993 the Batman Criminal Court ordered the applicant’s remand in custody.
9. On 6 April 1993 and on 10 October 1994 the Public Prosecutor at the Diyarbakır State Security Court filed two different bills of indictment accusing the applicant of being a member of an illegal terrorist organization and undermining the integrity of the State.
10. On 5 May 1993 the State Security Court commenced the trial against the applicant and twenty-one other suspects, and prolonged the applicant’s detention.
11. On 1 December 1995, the State Security Court convicted the applicant under Article 125 of the Criminal Code, and sentenced him to life imprisonment. The charges had been brought under Articles 168 and 125 of the Criminal Code.
12. Thereafter, the Court of cassation quashed the judgment three times, remitting it to the first-instance court, which reached the same conclusions as before:
– Court of Cassation decisions quashing the judgments on 9 July 1996, 31 January 2000 and 2 April 2001;
– the repetitive State Security Court decisions on 11 June 1999 (after numerous hearings), 28 September 2000 (after numerous hearings in the applicant’s absence) and 31 January 2002 (also after numerous hearings).
13. On that latter date, the State Security Court convicted the applicant under Article 168/2 of the Criminal Code and sentenced him to twelve years and six months’ imprisonment. He was released the same day.
14. The applicant did not appeal against this judgment. On 7 February 2002 it became final.
15. A full description of the domestic law may be found in the Demirel v. Turkey judgment (no. 39324/98, §§ 47-49, 28 January 2003).
VIOLATED_ARTICLES: 5
6
VIOLATED_PARAGRAPHS: 5-3
6-1


ITEMID: 001-109893
LANGUAGEISOCODE: ENG
RESPONDENT: ROU
BRANCH: ADMISSIBILITY
DATE: 2012
DOCNAME: ZARAFIM v. ROMANIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Ján Šikuta;Josep Casadevall;Luis López Guerra;Mihai Poalelungi
TEXT: 1. The applicant, Mr Gheorghe Moşoi Zarafim, is a Romanian national who was born in 1970 and before his arrest lived in Craiova. He was represented before the Court by Ms Andreea Livia Troanţă-Rebeleş Turculeanu, a lawyer practising in Craiova. The Romanian Government (“the Government”) were represented by their Agent, Ms Irina Cambrea, of the Ministry of Foreign Affaires.
2. The facts of the case, as submitted by the parties, may be summarised as follows.
3. On 22 February 1999 the applicant was apprehended by police on suspicion of having committed several violent crimes. On the same date he was placed in pre-trial detention by order of the prosecutor.
4. During the early stages of the proceedings, the applicant lodged several complaints with the prosecutor concerning ill-treatment by the investigators. His complaints were dismissed as illfounded or vexatious. In particular the prosecutor considered that the evidence in the file did not support the applicant’s claims. The applicant was informed about the prosecutor’s decisions in letters of 5 October 1999, 24 November 1999, 4 and 29 December 1999.
5. The proceedings were held before the Olt County Court. The applicant was represented at all hearings by a court-appointed lawyer. On 4 December 2001 the County Court convicted the applicant and sentenced him to twenty-five years’ imprisonment for crimes of aggravated murder, attempted aggravated murder, causing bodily harm, and trespassing.
The judge who delivered the judgment had not heard the applicant and the witnesses at a previous hearing.
6. Both the applicant and the prosecutor appealed against the judgment. The applicant complained of breaches of his procedural rights by the firstinstance court and about the outcome of the proceedings.
The prosecutor contested the court’s legal classification of some of the crimes.
7. The Court of Appeal quashed the judgment of 4 December 2001 and decided to re-examine the case on the merits. It did not hear new evidence from the applicant or witnesses.
In a decision of 4 July 2002 it changed the legal classification of the crimes committed by the applicant. The sentence remained unchanged. The court further dismissed the applicant’s appeal as ill-founded without giving any reasons.
8. Both the applicant and the prosecutor submitted appeals on points of law (recurs) against the judgment. The applicant pleaded his innocence and requested a less severe sentence.
In a final decision of 8 May 2003 the Supreme Court of Justice upheld the previous decision. It dismissed the applicant’s appeal as it considered that the sentence handed down had been appropriate, taking into account his previous criminal activity and his inferior intellect.
9. The applicant has been incarcerated continuously from 22 February 1999, initially in pre-trail detention and subsequently while serving his sentence. He is currently held in Craiova Prison.
10. During his detention, the applicant has been transferred twenty-three times between the prisons in Iaşi, Bucharest, Jilava and Craiova. The Government submitted a detailed prison record describing the conditions of the applicant’s detention to date.
11. The applicant has been reprimanded on several occasions for breaches of the prison rules (making or retaining prohibited objects or substances, maintaining an illegal alcohol processing device in the cell, insulting magistrates dealing with his case, violence towards prison personnel or inmates, and destroying prison property). The applicant exercised his right to appeal against the reprimands and his complaints were examined on the merits and rejected by the courts or the prosecutor.
12. The applicant was recorded as “clinically healthy” in the prison medical chart drafted upon his arrest.
On 7 May 1999 he was admitted to the Jilava Prison Hospital for a psychiatric examination. He was diagnosed with a personality disorder and exhibiting antisocial behaviour.
13. According to the prison medical record, the applicant was admitted on several occasions to prison hospitals, underwent expert examinations, was taken regularly for medical check-ups and received treatment. He was diagnosed with arterial hypertension, gallbladder dyskinesia, a duodenal ulcer and a fungal infection of the nail, type two obesity, an old fracture of the collarbone, superior brachial plexus paresis, a urinary infection, and respiratory diseases. According to the prison medical chart, he received treatment for his conditions.
It also appears that on several occasions in April 2005 the applicant refused to be examined by the prison doctors.
14. The applicant alleges that his health problems were caused and subsequently aggravated by inhuman detention conditions and lack of adequate medical treatment at the Iaşi, Jilava and Craiova prisons. In 2005 and 2006 the applicant filed numerous complaints in that connection, with the National Administration of Prisons and other authorities. On 27 December 2005 and 8 February 2006 the National Administration of Prisons replied that, according to his prison medical file, the applicant was receiving adequate medical treatment and therefore his complaints were not supported by evidence.
15. In 2006 the applicant also filed a criminal complaint for illtreatment and abuse against O.C. and B.A., doctors at the Iaşi Prison. On 1 September 2006 the Prosecutor’s Office of the Iaşi Court of Appeal rejected the complaint on the ground that there was no evidence of a crime. It appears from the file that the applicant did not appeal against that decision.
16. The applicant repeatedly got into fights with other inmates or the prison personnel. Each such incident was reported and investigated and the applicant was taken to the prison infirmary and to prison or civilian hospitals for further examinations and/or treatment. Expert reports were drafted concerning any injuries suffered and the number of days needed for recovery. On at least on one occasion the prison doctors informed the authorities of such an incident.
17. The applicant also complained once under Law no. 275/2006 on the execution of sentences (“Law no. 275”) that he had been the victim of an attack by inmates and guards and the prison doctors had refused to give him medical assistance.
On 8 April 2008 the judge responsible for the execution of sentences dismissed that complaint. He found that the applicant had been taken to the infirmary and given assistance and from there had been taken to a civilian hospital for further tests. The prison infirmary had subsequently given him the treatment prescribed by the civilian doctors. Furthermore, the prison doctors had informed the applicant that he could request a further medical examination in a civilian hospital.
18. On several occasions the applicant requested envelopes and stamps to send letters, as well as photocopies of documents from his prison file. In most of the cases his requests were met by the prison authorities. When such requests were refused, the applicant filed complaints with the judge responsible for the execution of sentences and with the courts under Law no. 275.
His actions were examined on the merits and dismissed, with the exception of a complaint that an envelope addressed to him had been opened by the director of Iaşi Prison, which led a to a decision of 25 January 2008 acknowledging a violation of his right to correspondence.
On 3 July 2007, while he was incarcerated in Iaşi Prison, the applicant submitted a formal request to be given an envelope in order to send documents asked for by the Court. He alleged that this request had been denied with no reasons being given.
19. The domestic legislation on the execution of sentences, in particular Law no. 23/1969, Emergency Ordinance no. 56/2003 (“Ordinance no. 56”), and Law no. 275/2006 on the execution of sentences, is described in Petrea v. Romania, no. 4792/03, §§ 21-23, 29 April 2008.


ITEMID: 001-77356
LANGUAGEISOCODE: ENG
RESPONDENT: FRA
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF L.L. v. FRANCE
IMPORTANCE: 1
CONCLUSION: Violation of Art. 8;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses (domestic proceedings) - claim dismissed
JUDGES: András Baka;Elisabet Fura;Jean-Paul Costa;Mindia Ugrekhelidze
TEXT: 4. The applicant was born in 1957 and lives in France.
5. On 5 February 1996 the applicant’s wife filed a divorce petition with the appropriate tribunal de grande instance. In an interlocutory decision of 26 March 1996, the family-affairs judge, finding that the couple were not reconciled, gave the petitioner leave to bring divorce proceedings against her husband and ruled on the interim arrangements. The judge granted parental responsibility for the children, who were born in 1985 and 1988, jointly to their father and mother, decided that they should habitually live with their mother and made provisions for the applicant’s right of visiting contact. The judge also ordered a welfare report together with a medical and psychological examination of all the members of the family. The welfare report, filed on 9 July 1996, revealed that the applicant was present and active as a father and had developed a sound relationship with his children. It recommended that he be granted broad rights of visiting and staying contact.
6. On 25 September 1996 the applicant’s wife brought divorce proceedings against him before the same tribunal de grande instance. She alleged that her husband had repeatedly subjected her to acts of violence and that he had chronic alcoholism.
7. In a judgment of 4 September 1998, the tribunal de grande instance granted the divorce on grounds of fault by the applicant alone, confirmed the interim arrangements indicated in the interlocutory decision, acknowledged the father’s poor financial situation and exempted him from child maintenance obligations. It ruled as follows:
“The wife has produced duly substantiated medical certificates attesting to the reality of the acts of violence to which she has been subjected and of which the only plausible origin lies in her husband’s behaviour towards her. Her husband, as she has also shown, suffers from alcoholism, and this may reasonably be said to constitute the primary cause of his behaviour.
These acts imputable to the husband constitute serious and repeated breaches of his marital duties and obligations and have led to an irretrievable breakdown in the marriage. It is appropriate to grant the petition and pronounce the divorce on grounds of fault by the husband alone.
...”
8. The applicant appealed against the judgment before the appropriate Court of Appeal, requesting that the divorce be granted on grounds of fault by both spouses and seeking a more extensive right of contact with his children. As to the grounds of divorce, he alleged that he had been subjected to aggressive behaviour and harassment by his wife and disputed her claim that he was an alcoholic. In this connection, he principally requested the exclusion from the case file of a document from his medical records that his wife had, according to him, obtained by fraudulent means and on which she had relied to show that he was an alcoholic. The document in question was an operation report of 2 April 1994 concerning a splenectomy which the applicant had undergone. It had been sent on 20 April 1994 in a letter from Doctor C. (a specialist in digestive surgery) to the applicant’s general practitioner. The applicant claimed, however, that he had never provided his wife with a copy of the document, nor had he released the doctor who signed it from his duty of medical confidentiality in that connection. As to the ancillary arrangements decided by the court below, he considered that the restrictions on his right of contact were unjustified, arguing that the welfare report and the additional documents he had produced proved his attachment to his children and the guarantees he was able to give in order to receive them. The applicant’s ex-wife, for her part, reiterated the complaints she had made before the court below. She also denied that she had obtained a medical document fraudulently, alleging that her husband had entrusted her with “the management of paperwork”, rejected any accusation of violence, and considered that the applicant’s demands, in respect of his right of contact, were premature as he was living with his parents and had not yet overcome his drink problem.
9. In a judgment of 21 February 2000, the Court of Appeal upheld the provisions of the judgment appealed against as regards the granting of the divorce, the exercise of parental responsibility and the children’s habitual residence, giving the following reasoning:
“– The granting of the divorce:
...
Whilst certain testimony she has produced, concerning manifest drunkenness and resulting violent behaviour on the part of her husband at family gatherings, is very dated and not useful for the proceedings, she has nevertheless submitted to the Court testimony from two of his sisters concerning Mr [L.L.]’s alcohol addiction and his resulting aggressiveness.
Mr [L.L.]’s alcoholism has been confirmed by medical documents and in particular a letter of 20 April 1994 to his general practitioner from Doctor C. – and there is no evidence to suggest that it was obtained fraudulently by his wife – referring to ‘a bout of acute pancreatitis with a background of alcoholism’ and indicating that the consequences of the pancreatitis could only be brought under control if the subject gave up alcohol.
Mrs [L.L.] also produced medical certificates dated 26 July 1994, 2 September 1994, 15 September 1994 and 2 February 1996 in which various injuries were recorded – in particular a perforated eardrum – and from which violent acts by the husband must necessarily be inferred, as no other explanations have been suggested by Mr [L.L.].
This conduct ... constitutes a serious and repeated breach of marital duties, leading to an irretrievable breakdown in the marriage, and the judgment appealed against must accordingly be upheld in so far as it granted the divorce petition filed by the wife. ...”
10. As regards the applicant’s request for the extension of his rights of visiting and staying contact, the court considered it necessary to order, as an interlocutory measure, a medical and psychological report on the family group. After the expert’s report had been filed, on an undetermined date, the Court of Appeal, on 7 June 2001, granted the applicant’s request and accorded him a right of contact with which he was satisfied.
11. On 14 June 2000 the applicant wrote a letter to the President of the Court of Cassation in which he expressed his intention to appeal on points of law against the judgment of 21 February 2000, considering that the “legislation [had] not been correctly applied”. As regards the medical documents produced in the case, he criticised the courts that had ruled on his case for using those documents in spite of his protests, and added that such a practice was in breach of the Criminal Code since “judges [could not] require hospital records to be produced without risking the disclosure of facts protected by professional confidentiality”.
12. For the purposes of his appeal on points of law, the applicant filed a request for legal aid with the Court of Cassation’s Legal Aid Board. His request was rejected by the Board on 10 May 2001, then by the President of the Court of Cassation on 11 July 2001, on the ground that “it [did] not appear from an examination of the material in the case file that a ground of appeal on points of law [could] be argued with any real prospect of success”.
13. In the meantime, following a report of ill-treatment filed by the applicant with the Department for Prevention and Social Services, the children’s judge at the tribunal de grande instance, on 25 October 2000, initiated the procedure providing, in respect of the couple’s children, for a measure of guidance in the home community. That measure was extended on 4 December 2001 for a further one-year period.
14. At the material time the relevant provisions of the Civil Code read as follows:
“Everyone has the right to respect for his private life. ...”
“The proceedings on the cause of action, the consequences of the divorce and on the interim arrangements shall not be public.”
“Facts relied on as grounds for divorce or as a defence to a divorce petition may be established by any type of evidence, including confessions.”
“A spouse may not produce in the proceedings any letters exchanged between his or her spouse and a third party that he or she may have obtained by duress or fraud.”
“Reports drawn up at the request of a spouse shall be declared inadmissible as evidence in the event of trespass on domestic premises or unlawful interference with private life.”
15. Articles 259 and 259-1 of the Civil Code were amended by Law no. 2004-439 of 26 May 2004, which came into force on 1 January 2005. Those Articles now read as follows:
“Facts relied on as grounds for divorce or as a defence to a divorce petition may be established by any type of evidence, including confessions. However, evidence from descendants may never be heard in respect of the complaints submitted by the spouses.”
“A spouse may not produce in the proceedings any evidence that he or she may have obtained by duress or fraud.”
16. In divorce proceedings, evidence of the complaints submitted is unrestricted and may be adduced by any means, unless it is shown that it has been obtained by duress or fraud (Article 259-1 of the Civil Code) or that reports drawn up at the request of a spouse have given rise to unlawful interference with private life or trespass on domestic premises (Article 2592 of the Civil Code).
In this connection, where, for the purposes of adducing preliminary evidence of a spouse’s breach of his or her duty of fidelity, a report establishing adultery has been drawn up by a bailiff, with judicial authorisation, at the domicile of the other party to the adulterous relationship, such an act constitutes lawful interference with private life (Court of Cassation, Second Civil Division, 5 June 1985, Bulletin civil (Bull. civ.) no. 111). Similarly, a report drawn up without judicial authorisation, at the request of the husband, on premises of which he has possession, may be taken into consideration by the tribunals of fact (Court of Cassation, Second Civil Division, 14 December 1983). However, having regard to Article 9 of the Civil Code, the Court of Cassation has held that where a person has been spied on, watched and followed for several months, interference with that person’s private life, by a private detective acting on instructions to identify aspects of his or her way of life that might support a request for the discontinuance of a compensatory financial provision paid by the person’s former spouse, is disproportionate to the aim pursued (Court of Cassation, Second Civil Division, 3 June 2004, Bull. civ. no. 273).
Conversely, having regard to Article 259-1 of the Civil Code, a court of appeal which held, on the basis of the evidence which it alone was empowered to assess, that a relationship detrimental to a husband carried on between his wife and a third party could be established by e-mails and by a private investigation report, rightly inferred therefrom, absent any evidence of duress or fraud, that serious and repeated breaches of marital duties were thus substantiated (Court of Cassation, First Civil Division, 18 May 2005, Bull. civ. I no. 213). In the same vein, a private investigation report is admissible when corroborated by other evidence such as comments written in a diary (Court of Cassation, Second Civil Division, 3 March 1983, unreported) or witness statements. As regards letters exchanged between one of the spouses and a third party within the meaning of the former Article 259-1 of the Civil Code, a court, in order to declare inadmissible letters from a wife to third parties, together with her diary, is not entitled to find that their production breached her privacy unless the husband obtained those documents by fraud or duress (Court of Cassation, Second Civil Division, 29 January 1997, Juris-classeur périodique 1997, Bull. civ. II no. 28). It has been held, however, that a diary should be declared inadmissible on the basis of Article 8 of the Convention (Caen tribunal de grande instance, judgment of 9 June 2000).
17. The relevant provisions of the new Code of Civil Procedure read as follows:
“Registrars and custodians of public registers shall be required to issue a copy or an extract therefrom to any applicant, subject to the exercise of their rights.”
“In the event of refusal or where no response is obtained, the president of the tribunal de grande instance, or, where the refusal emanates from a registrar, the president of the court to which his office is attached, seised by way of application, shall adjudicate, after hearing representations from the applicant and the registrar or custodian, or after giving them notice to appear.
Appeals shall be lodged, examined and determined as in non-contentious matters.”
VIOLATED_ARTICLES: 8


ITEMID: 001-105449
LANGUAGEISOCODE: ENG
RESPONDENT: SRB
BRANCH: ADMISSIBILITY
DATE: 2011
DOCNAME: NASKOVIC v. SERBIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: András Sajó;David Thór Björgvinsson;Françoise Tulkens;Giorgio Malinverni;Guido Raimondi;Paulo Pinto De Albuquerque
TEXT: 1. The applicant, Mr Igor Nasković, is a Serbian national who was born in 1982 and is currently serving his sentence in the Niš Penitentiary (kazneno-popravni zavod). He was represented before the Court by Mr M. Jovanović, a lawyer practising in Niš.
2. The facts of the case, as submitted by the parties, may be summarised as follows.
3. On 8 April 2004 the District Court in Gnjilane, Kosovo, found the applicant guilty of murder and illegal possession of firearms, and sentenced him to 18 years’ and 3 months’ imprisonment.
4. On an unspecified date thereafter this judgment became final.
5. The applicant started serving his sentence in Kosovo, but on 9 December 2004 and upon his own request he was transferred to the Sremska Mitrovica Penitentiary, pursuant to the Agreement concluded between the Federal Republic of Yugoslavia and the United Nations Interim Administration Mission in Kosovo (hereinafter “the Agreement”; see paragraphs 44-50 below).
6. On 13 September 2007 the applicant was transferred once again, this time to the Niš Penitentiary.
7. On an unspecified date the applicant filed a request to be transferred back to a prison in Kosovo based on Article 2 § 2 of the Agreement (see paragraph 44 below).
8. On 4 August 2010 the Directorate for the Enforcement of Criminal Sanctions (hereinafter “the Directorate”), as a department within the Ministry of Justice (see Article 12 § 2 at paragraph 27 below), rejected this request, noting that it had been based on family-related and health reasons. The Directorate firstly observed that the applicant had only complained about the pain in his ankles, in which respect he had been duly provided with adequate medication. Secondly, the Niš Penitentiary had its own prison hospital and, if needed, the applicant could also be taken to other medical institutions outside of the penitentiary. Thirdly, the Niš Penitentiary was the closest prison to Kosovo, which was where the applicant’s family lived. Fourthly, the Niš Penitentiary was best placed to secure the applicant’s rehabilitation. Finally, the Agreement did not establish the applicant’s “right to be transferred” to a prison of his choice. On the contrary, any transfer depended on the consent of the parties to the Agreement.
9. On 5 February 2011 the applicant filed a fresh request to be transferred to Kosovo. Therein he explained that his entire family lived there and could not afford to visit him on a regular basis in Niš, nor for that matter, in view of the postal costs involved, even send him packages. The applicant further maintained that the quality of medical services provided in the Niš Penitentiary was not adequate.
10. On 29 March 2011 the Directorate rejected this transfer request. For the most part, it restated the reasons given on 4 August 2010, adding, inter alia, that the applicant had had regular contact with his family, albeit with some “technical” difficulties recently. Lastly, the Directorate noted that family reasons could not be decisive in the assessment of a transfer request, and recalled that the applicant had initially been transferred from Kosovo upon his own request.
11. On 4 April 2011, not having yet received the Directorate’s decision of 29 March 2011 and relying on Article 116 § 3 of the Enforcement of Criminal Sanctions Act 2005 and Article 208 § 2 of the General Administrative Proceedings Act (see paragraphs 27 and 29 below), the applicant filed an appeal with the Minister of Justice wherein, inter alia, he complained about the failure of the Directorate to consider his request of 5 February 2011.
12. Having been served with the Directorate’s decision of 29 March 2011, on 14 April 2011 the applicant filed an appeal with the Minister of Justice against it. Therein he stated that: (i) the Directorate was not competent to consider the transfer request; (ii) it should instead have properly been examined by another department within the Ministry of Justice; (iii) the Directorate had not complied with the procedures set forth in the Agreement; and (iv) the impugned reasoning was incoherent since the applicant’s family lived in Kosovo, some 120 kilometres from Niš, and had had to negotiate a certain administrative procedure whenever leaving its territory.
13. It would seem that on 18 April 2011 the applicant filed another submission with the Minister of Justice in support of his appeal of 14 April 2011.
14. On 20 April 2011, and in view of the Directorate’s ruling of 29 March 2011, the Minster of Justice rejected the applicant’s appeal of 4 April 2011, deeming it moot. The appeal of 14 April 2011 is apparently still pending.
15. On 20 September 2010 the applicant started a hunger strike, seeking his transfer to a prison in Kosovo.
16. As of 5 October 2010 the applicant also refused to take any water.
17. On 19 October 2010 the applicant discontinued the strike altogether.
18. On 17 January 2011 the applicant again started a hunger strike, seeking his transfer to Kosovo.
19. On 17 March 2011, following respiratory, kidney and orientation problems, as well as weight loss (more than fourteen kilograms in all), the applicant discontinued the hunger strike.
20. However, on 12 April 2011, having received the Directorate’s decision of 29 March 2011, the applicant decided to resume the strike, which included his refusal to take either food or water.
21. The applicant thereafter apparently lost consciousness on several occasions, received an infusion and experienced kidney pains.
22. On 20 April 2011 the applicant informed his lawyer that, fearing even more serious consequences, he had started taking water and would discontinue his hunger strike shortly.
23. On 5 May 2011 the applicant’s lawyer informed the court that his client had indeed discontinued the strike altogether.
24. The applicant maintained that throughout the strikes referred to above, he had been examined by the prison doctor on a daily basis, but that when he had needed urgent medical assistance no such assistance had been provided.
25. The applicant seems to have also been subjected to blood tests periodically, as well as to blood pressure and weight monitoring. The applicant was repeatedly warned by the prison medical staff that the strike was seriously endangering his health.
26. Lastly, the applicant stated that it was never his intention to commit suicide, but merely to be transferred to a prison in Kosovo.
27. The relevant provisions of this Act read as follows:
“This Act governs, unless specifically provided otherwise by law, the procedure of enforcement of criminal sanctions ...”
“... [Convicted persons] are entitled to the protection of fundamental rights guaranteed by the Constitution, ratified international agreements, generally accepted rules of international law, and this Act.”
“ ... [Convicted persons are entitled to] ... judicial review of individual ... [decisions] ... related to their rights and duties, in accordance with the provisions of this Act.
“The Directorate for the Enforcement of Criminal Sanctions ... [hereinafter ‘the Directorate’] ... shall organise, implement and supervise the enforcement of imprisonment ...
The ... [Directorate] ... is an administrative authority within the Ministry of Justice of the Republic of Serbia.”
“Convicted persons are entitled to receive visits from ... [their family members and others in accordance with the conditions set forth by this Act] ...”
“Convicted persons shall have the right to receive packages ...”
“Convicted persons are entitled to medical care according to the general rules on health care, as well as the provisions of this Act.
Convicted persons who cannot receive adequate medical treatment ... [in prison] ... shall be transferred to the Special Prison Hospital or another health [care] institution ...”
“Medical treatment of a convicted person may only be effected with his consent.
Forced feeding of a convicted person shall not be allowed.
Exceptionally, if a convicted person seriously impairs his health or his life, by refusing medical treatment or food, ... measures shall be applied as determined by a doctor.”
“The [prison] doctor ... shall be obliged to:
...
(4) examine on a daily basis a convicted person who is ill or is refusing food or water ...”
“A convicted person mаy, for the purpose of exercising his rights, file a request with ... [a person authorised by the prison to deal with the matter at issue] ...
The [authorised] person referred to in paragraph 1 of this Article must, within five days as of receipt of the request, provide the convicted person with a written and reasoned response.
A convicted person shall have the right to lodge a complaint with the prison governor concerning any breach or irregularity suffered by him whilst in prison.
The prison governor, or another person authorised by him, shall consider the convicted person’s complaint, and shall decide upon it within 15 days.
A convicted person who receives no such ... [decision] ... or is not satisfied with the decision rendered shall have the right to file an appeal with the Head of the Directorate within a period of eight days.
The Head of the Directorate shall be obliged to rule on this appeal within a period of 30 days as of its receipt.”
“Should a convicted person consider that his right has been breached by the prison governor personally, he may file a complaint with the Head of the Directorate.
Should the Head of the Directorate, or another person authorised by him, ascertain that the complaint was not brought for reasons cited in paragraph 1 [of this Article], the complaint shall be forwarded to [another] competent body and the convicted person shall be informed thereof.
The Head of the Directorate, or another person authorised by him, may investigate the merits of the complaint by means of looking into the relevant prison records, [and/or] by interviewing the prison governor[,] ... the prison staff ... [or] the convicted person concerned ... [, as well as] ... other convicted persons without the presence of prison staff.
Should the complaint be deemed well-founded, the Head of the Directorate shall order that the breach of the convicted person’s right be rectified.”
Should [the Head of the Directorate] consider that the breach of a convicted person’s right was caused by the actions of a member of the prison staff, ... [he] ... shall inform in writing the prison governor, as well as the authorised prison supervisor, and, should he consider that the breach was caused by the action of the prison governor personally, he shall [likewise] inform the authorised prison supervisor.”
“A convicted person shall have the right to complain to the authorised prison supervisor, without the presence of prison staff.
The content of the complaint shall be confidential.”
“Upon request of a convicted person or the proposal of the prison governor, and where there are good reasons for so doing, the Head of the Directorate may transfer the convicted person from one institution to another.
The Head of the Directorate may [also], for reasons of security, transfer a convicted person ex officio.
A convicted person may file an appeal against the decision of the Head of the Directorate referred to in paragraphs 1 and 2 of this Article with the Minister of Justice, within three days as of ... [its receipt] ... An appeal against the decision of the Head of the Directorate shall not postpone its enforcement.”
“A convicted person whose transfer request has been rejected may not re-submit the request before six months have elapsed following the adoption of the decision of the Head of the Directorate in response to his earlier request.”
“A convicted person shall be entitled to judicial recourse against the final decision ... limiting or violating one of his rights set forth under this Act.
Judicial recourse referred to in paragraph 1 of this Article shall be secured through an administrative dispute.”
“An action seeking judicial redress shall be filed within three days as of receipt of the decision in question.
The court of competent jurisdiction shall rule on the action referred to in paragraph 1 of this Article within 30 days as of its receipt.”
“The enforcement of detention [in an ongoing criminal case] is subject to supervision by the president of the District Court that has jurisdiction for the territory where the main premises of the detention facility are located.”
28. Article 208 § 1 provides, inter alia, that in simple matters an administrative body shall be obliged to issue a decision within one month as of when the claimant lodged his or her request. In all other cases, the administrative body shall render a decision within two months thereof.
29. Article 208 § 2 enables the claimant whose request has not been decided within the periods established in the previous paragraph to lodge an appeal as if his or her request has been denied. Where an appeal is not allowed, the claimant shall have the right to directly initiate an administrative dispute.
30. Articles 4 and 6 provide, inter alia, that an “administrative act” is an act/decision adopted by a State body in the determination of one’s rights and obligations concerning “an administrative matter”.
31. Article 8 § 1 provides that administrative disputes shall be adjudicated by the Administrative Court.
32. Articles 14 and 15 provide, inter alia, that an administrative dispute may be instituted against an administrative act/decision rendered at second instance, as well as against one issued at first instance should no appeal lie against it. Moreover, an administrative dispute may also be instituted, under conditions set forth by this Act, in situations where a competent State body has failed to decide on a party’s request or has failed to rule on appeal at second instance.
33. Article 19 § 1 provides, inter alia, that should an appellate body fail to issue a decision upon a claimant’s appeal within sixty days the claimant may repeat the request, and if the appellate body declines to rule within an additional period of seven days the claimant may institute an administrative dispute.
34. Article 19 § 2 provides, inter alia, that should a first instance administrative body fail to issue a decision upon the claimant’s request within a period provided in the General Administrative Proceedings Act (see paragraph 28 above), in matters where an appeal has been excluded, the claimant may repeat the request and if the first instance body declines to rule within an additional period of seven days the claimant may institute an administrative dispute before a court of law.
35. Article 41 provides, inter alia, that the court shall consider the lawfulness (zakonitost) of the impugned administrative decision, as well as any reasons for its possible nullity (ništavost).
36. Article 42 § 1 provides, inter alia, that should the court rule in favour of the claimant, the impugned administrative decision shall be quashed fully or partially, and the matter shall be remitted to the competent administrative authority for re-examination.
37. Articles 43 provides, inter alia, that should the court rule in favour of the claimant, it shall also, where the established facts of the case and its nature so warrant, have the power to decide on the merits of the claimant’s original request (spor pune jurisdikcije).
38. Article 43 § 2 provides that the court may not rule on the merits in cases where an administrative decision has been adopted by the competent body in the exercise of its discretion.
39. Article 43 § 5 provides, inter alia, that in cases where repeated administrative proceedings, following the quashing of an impugned decision adopted earlier, would cause the claimant serious harm, the court shall be obliged to rule on the merits of the claimant’s original request, providing that the relevant facts have been established before the court itself.
40. Article 44 provides that where an administrative dispute has been brought under Article 19 the court shall, should it rule in favour of the claimant, order the administrative body in question to decide upon the claimant’s original request. However, should the established facts of the case and its nature make it possible, the court shall also have the power to decide on the merits thereof.
41. The Supreme Court has frequently considered, on their substance, requests filed by convicted persons, involving various issues regulated by the Enforcement of Criminal Sanctions Act 2005 (see, for example, judgments U. nos. 1658/06, 1717/06, 1334/06, 1165/06 and 1884/06).
42. Article 170 provides that a “constitutional appeal may be lodged against individual decisions or actions of State bodies or organisations exercising delegated public powers which violate or deny human or minority rights and freedoms guaranteed by the Constitution, if other legal remedies for their protection have already been exhausted or have not been prescribed.”
43. The relevant provisions of this Act read as follows:
“The decisions of the Constitutional Court shall be final, enforceable and binding.”
“A constitutional appeal may be lodged against an individual decision or an action of a State body or an organisation exercising delegated public powers which violates or denies human or minority rights and freedoms guaranteed by the Constitution, if other legal remedies have already been exhausted or have not been prescribed or where the right to their judicial protection has been excluded by law.
A constitutional appeal may be lodged even if all available remedies have not been exhausted in the event of a breach of an applicant’s right to a trial within a reasonable time.”
“A constitutional appeal may be lodged by any individual who believes that any of his or her human or minority rights or freedoms guaranteed by the Constitution have been violated or denied by an individual decision or an action of a State body or an organisation exercising delegated public powers.”
“A constitutional appeal may be lodged within thirty days of receipt of the individual decision or the date of commission of the actions ... [in question] ...”
“When the Constitutional Court finds that an ... individual decision or action has violated or denied a human or minority right or a freedom guaranteed by the Constitution, it shall annul the ... decision in question or ban the continuation of such action or order the implementation of other specific measures as well as the removal of all adverse consequences within a specified period of time.
The decision of the Constitutional Court accepting a constitutional appeal shall constitute a legal basis for requesting compensation or the removal of other adverse consequences before a competent body, in accordance with the law.”
“... [An applicant who has obtained a Constitutional Court decision in his or her favour] .., may lodge a compensation claim with the Commission for Compensation in order to reach an agreement in respect of the amount ... [of compensation to be awarded] ...
If the Commission for Compensation does not rule favourably in respect of a compensation claim or fails to issue a decision within thirty days from the date of its submission, the applicant may file a civil claim for damages before the competent court. If only partial agreement has been achieved, a civil claim may be filed in respect of the remainder of the amount sought.
The composition and operation of the Commission for Compensation shall be regulated by the Minister of Justice.”
44. Article 2 § 2 provides, inter alia, that a convicted person may be transferred from a prison supervised by one party to the Agreement to a prison supervised by the other party. The convicted person at issue shall be entitled to express his interest to be transferred in accordance with the Agreement.
45. Article 2 § 3 provides that the transfer may formally be requested by one of the parties to the Agreement.
46. Under Article 3 § 2, a convicted person may be transferred to Kosovo if, inter alia, the following conditions are met: (i) the criminal offence is punishable by the criminal law of both parties; (ii) the sentencing judgment is final; (iii) the convicted person still has at least six months of the sentence to serve; and (iv) the convicted person, as well as the parties to the Agreement, have all consented to the transfer in question. It is lastly stated that when it comes to transfers of convicted persons to Kosovo, special priority shall be granted to those who were born in Kosovo, as well as those whose family members live there.
47. Article 4 § 1 provides that all convicted persons in respect of whom the Agreement may be applicable shall be informed thereof.
48. Article 4 § 5 provides that a convicted person shall be informed, in writing, about any and all decisions adopted by the parties to the Agreement in respect of the transfer.
49. Article 13 provides that the Agreement shall be applicable to criminal sanctions imposed before as well as after its entry into force.
50. Article 15 § 2 provides that the Agreement shall enter into force on the date of its signature by the parties.
51. Rule 17.1 provides that “[p]risoners shall be allocated, as far as possible, to prisons close to their homes or places of social rehabilitation”.
52. Rule 17.3 provides that “[as] far as possible, prisoners shall be consulted about their initial allocation and any subsequent transfer from one prison to another”.