ITEMID: 001-109573
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: COMMITTEE
DATE: 2012
DOCNAME: CASE OF DEMENOVA v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time)
JUDGES: André Potocki;Ganna Yudkivska;Mark Villiger
TEXT: 4. The applicant was born in 1957 and lives in Melitopol.
5. On 29 July 1999 the applicant instituted proceedings in the Melitopol Court against the Simferopol State University, her former employer, seeking recovery of salary arrears and compensation for unused leave.
6. On 19 July 2001 the court rejected the applicant’s claims as unsubstantiated.
7. On 21 February 2002 the Zaporizhzhya Regional Court of Appeal quashed that judgment and remitted the case to the first-instance court for fresh consideration.
8. On 22 March 2005 the first-instance court left the applicant’s claims without consideration, holding that she had repeatedly failed to appear at court hearings.
9. On 21 June 2005 the court of appeal quashed that decision, finding that there was no proof that the applicant had been duly informed about the date and place of the first instance court’s hearing, and remitted the case to the first instance court for consideration on the merits.
10. On 12 December 2006 the court ordered modification of the record concerning the applicant’s dismissal and ordered the respondent to pay her certain sum, having rejected the remainder of her claims. On 22 March 2007 the Court of Appeal upheld that judgment.
11. On 18 September 2007 the Supreme Court rejected the applicant’s appeal in cassation.
12. Out of sixty hearings scheduled in the applicant’s case ten were adjourned due to the applicant’s absence or upon her request, eleven hearings were adjourned due to the absence of the respondent or his representative or upon their requests, seven were adjourned due to both parties’ failure to appear. Nine hearings were adjourned due to the judge’s illness, two were adjourned due to the judge’s absence, and one was adjourned due to the liquidation of the court dealing with the applicant’s case.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-112295
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2012
DOCNAME: FLUSKEY v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: George Nicolaou;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä;Zdravka Kalaydjieva
TEXT: 1. The applicant, Mr Martin Fluskey, is an Irish national, who was born in 1963 and lives in Dublin. He was represented before the Court by Mr M. Finucane, a lawyer practising in Dublin.
2. The applicant was convicted in 1989 of fraudulently using a licence. He received a fine.
3. On 22 August 2005 the applicant was arrested and detained at Stoke Newington Police Station on suspicion of harassment contrary to section 5 of the Public Order Act 1986 following an incident involving his former wife. Photographs, fingerprints and a DNA sample were taken. The applicant received a caution in respect of the incident and was released on the same day.
4. In February 2006 the applicant complained to the Independent Police Complaints Commission about the arrest. His complaint was investigated and on 13 July 2006 Detective Inspector Smith confirmed that the arrest was lawful.
5. In or around September 2006 the applicant’s solicitors wrote back to Detective Inspector Smith questioning the legality of the caution and requesting that it be rescinded.
6. On 8 January 2007 the applicant was advised that the caution would be removed from his record.
7. On or around 14 February 2007 the applicant’s solicitors requested that the police use their discretion to delete the applicant’s DNA, fingerprints and photographs. On 23 March 2007, he was advised that his request to have the DNA data destroyed had been refused.
8. On 24 June 2008 a further request was received by the police from the applicant for deletion of his DNA, fingerprints and photographs. The request was treated as having been made under the procedure allowing deletion of such data in exceptional circumstances. Receipt of the request was acknowledged on 27 June 2008.
9. On 29 April 2009, following an examination of the facts and circumstances relating to the applicant’s arrest, the police decided to delete the applicant’s DNA, fingerprints and photographs.
10. On 5 May 2009, the applicant was informed that his case was considered to be exceptional and that his DNA sample and other records would be destroyed.
11. On 20 May 2009 the record of the applicant’s DNA profile was deleted.
12. On 29 May 2009 the applicant’s DNA sample and profile were deleted.
13. On 19 June 2009 the electronic record of the applicant’s fingerprints was deleted.
14. On 22 June 2009 the offence recorded in the Police National Computer in respect of the applicant was deleted.
15. On 8 July 2009 the hard copy record of the applicant’s fingerprints and his Police National Computer record were deleted.
16. On the same day the applicant was advised that all his records and samples had been deleted.
17. For details of the relevant domestic law see S. and Marper v. the United Kingdom [GC], nos. 30562/04 and 30566/04, ECHR 2008.


ITEMID: 001-57753
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: CHAMBER
DATE: 1992
DOCNAME: CASE OF PFEIFER AND PLANKL v. AUSTRIA
IMPORTANCE: 2
CONCLUSION: Preliminary objection rejected (non-exhaustion);Violation of Art. 6-1;Violation of Art. 8;Non-pecuniary damage - finding of violation sufficient;Costs and expenses award - domestic proceedings;Costs and expenses award - Convention proceedings
JUDGES: N. Valticos
TEXT: 6. Mr Heinrich Pfeifer and Mrs Margit Plankl, both Austrian citizens, were detained on remand in 1982 in connection with separate criminal proceedings brought against them before the Klagenfurt Regional Court (Landesgericht, "the Regional Court"). The present case is not concerned with the proceedings against the second applicant.
7. On 12 November 1982 Judge Kaiser, an investigating judge at the said court, issued a warrant for Mr Pfeifer’s arrest.
He was suspected of having committed various offences, including aggravated fraud, professional burglary, forgery and suppression of documents, receiving stolen goods and unlawful possession of firearms. The reasons cited by the judge in support of his detention were the danger of his absconding and the risks of collusion and repetition of offences (Article 175 (1), sub-paragraphs 2 to 4, of the Code of Criminal Procedure).
8. Mr Pfeifer was arrested in Klagenfurt on 20 November 1982. On the next day he was brought before Judge Arnold, the duty judge (Journalrichter, Article 179 (1) of the Code of Criminal Procedure), who informed him of the reasons for his arrest. On being questioned in the absence of his lawyer, he admitted unlawful possession of firearms, but denied having committed any other offence. The judge remanded him in custody.
9. Also on 21 November 1982 Judge Kaiser ordered the applicant’s transfer to Vienna, where the Regional Criminal Court (Landesgericht für Strafsachen) had on 20 November issued a warrant for his arrest on suspicion of having taken part in an armed robbery in Vienna. The Klagenfurt proceedings were joined to those instituted in Vienna, and Mr Pfeifer remained in the Vienna remand prison from 22 November 1982 to 24 February 1983.
10. The proceedings were severed on 20 January 1983 and the Klagenfurt Regional Court recovered jurisdiction over the proceedings which are the subject of the present case.
The case was assigned to Judge Startinig, who on 25 February 1983 opened a judicial investigation (Voruntersuchung) and ordered the applicant’s detention to be continued (Article 180 (1) and (2), sub-paragraphs 1 to 3, of the Code of Criminal Procedure). The Graz Court of Appeal (Oberlandesgericht) twice authorised the extension of his detention on remand, for a maximum period of ten months in all.
11. On 23 May 1983 Mr Pfeifer challenged the investigating judge, alleging bias, but on 26 May the challenge was held to be unsubstantiated by the President of the Regional Court. On 30 June the applicant brought a criminal complaint against Mr Startinig for abuse of public powers, on the ground that he had refused to allow a visit by Mr Peters (see paragraphs 2 and 5 above). As the public prosecutor’s office had decided not to bring a prosecution, Mr Pfeifer brought an alternative private prosecution himself (Subsidiaranklage, see paragraph 14 below).
12. In the main proceedings, counsel for Mr Pfeifer had submitted a memorial on 21 June 1983. On 19 July the public prosecutor filed an indictment, in which the only charges were receiving stolen goods and illegal possession of firearms. An objection (Einspruch) by the applicant against this indictment was dismissed by the Graz Court of Appeal on 18 August 1983.
13. Mr Pfeifer was sent for trial before the Regional Court, composed of two professional judges, Mr Kaiser (the presiding judge) and Mr Arnold, and two lay assessors (Schöffen).
On 31 August 1983, Judge Kaiser summoned him to inform him that he had acted as investigating judge in the case until 31 December 1982 (see paragraphs 7 and 9 above) and was accordingly prevented from sitting in the trial under Article 68 (2) of the Code of Criminal Procedure. In the course of the interview Mr Pfeifer waived his right to lodge a plea of nullity on this ground (Article 281 (1), first sentence, of the Code; see paragraphs 22 and 24 below).
On 1 September 1983, the presiding judge informed him that Judge Arnold was also disqualified under Article 68 (2), since he had, as duty judge, questioned him on 21 November 1982 (see paragraph 8 above). Mr Pfeifer likewise waived his right to lodge a plea of nullity on this point.
In both cases, the relevant records were signed by him in the absence of his counsel, who had not been summoned on that occasion; the applicant had stated that he did not think it necessary to consult him.
14. The hearings took place on 16 September and 7 October 1983 with the participation of the two above-mentioned judges.
Defence counsel did not object to the composition of the Regional Court or challenge Judges Kaiser and Arnold.
Neither did he draw the court’s attention, at the hearing of 7 October 1983, to the fact that, in the criminal proceedings instituted against Judge Startinig, the third investigating judge (see paragraph 11 above), the applicant had on 23 September 1983 challenged all the judges of the Klagenfurt Regional Court, including Judges Kaiser and Arnold. This challenge was eventually allowed by the Graz Court of Appeal on 10 November 1983, the judges concerned having declared themselves disqualified. The case was therefore referred to the Leoben Regional Court and later discontinued.
15. Also on 7 October 1983, the court convicted Mr Pfeifer of aggravated receiving of stolen goods (Article 164 (3) of the Criminal Code) and unlawful possession of firearms (section 36 of the Firearms Law, Waffengesetz) and sentenced him to three years’ imprisonment.
16. The applicant lodged a plea of nullity (Nichtigkeitsbeschwerde) and an appeal against sentence (Berufung), which were dismissed by the Supreme Court (Oberster Gerichtshof) on 29 February 1984.
On the plea of nullity, the court observed that the defence had not raised at the proper time the issue of the participation of Judges Kaiser and Arnold, who had been challenged in earlier proceedings, otherwise the Regional Court would have been obliged to give an interlocutory decision. The fact that the challenge relating to the other case was subsequently allowed (see paragraph 14 above) did not justify the conclusion that the two professional judges were also biased in the criminal proceedings against Mr Pfeifer. Furthermore, the latter could no longer argue that Judges Kaiser and Arnold should in principle have withdrawn under Article 68 (2) of the Code of Criminal Procedure (see paragraph 22 below), because prior to the trial he had expressly waived his right to challenge them on this ground.
The Supreme Court also confirmed the sentence.
17. During their detention on remand the applicants corresponded with each other. In the early summer of 1983, the investigating judge censored a letter from Mrs Plankl to Mr Pfeifer by crossing out and making illegible certain passages. They were not reconstructed in the national proceedings, but their content was said to have been as follows (translation):
"I wonder whether there is anybody left in this monkey house who is still normal ... In life they are nobodies, here they think they are gods. Some of the officers are guests like us. They are always spying on the women, these monkeys are proper peeping toms! I hate it!"
18. Mrs Plankl complained to the Review Chamber (Ratskammer) of the Regional Court. She claimed that the form of censorship used was unlawful, since Article 187 (2) of the Code of Criminal Procedure authorised the stopping of letters, but not making them illegible. Besides, it allowed censorship only in respect of letters likely to interfere with the purpose of detention, or giving rise to the suspicion of a criminal offence where the offender could be prosecuted ex officio, with or without the victim’s authorisation. The relevant passages contained remarks critical of prison officers but were not, in her opinion, such as to fall within the scope of the above rules.
19. The complaint was considered in camera in the absence of the applicant and her counsel. After hearing the prosecution and studying a report by the investigating judge, the Review Chamber rejected her complaint on 26 July 1983.
The crossing out of part of a letter was in its opinion a less severe measure than stopping the letter. It was therefore within the investigating judge’s powers under Article 187 (2) of the Code of Criminal Procedure (see paragraph 25 below), and did not infringe Mrs Plankl’s rights. It had moreover been justified, because the passages in question, described in the report as "jokes of an insulting nature against prison officers", had constituted defamation (üble Nachrede) of officials in the exercise of their duty (Article 111 (1) in conjunction with Article 117 (2) of the Criminal Code), an offence capable of justifying a censorship measure under Article 187 (2).
20. After the Commission had communicated the application to the Austrian Government, the Attorney-General’s Office (Generalprokuratur) brought a plea of nullity for the preservation of the law (Nichtigkeitsbeschwerde zur Wahrung des Gesetzes) before the Supreme Court. Two grounds of appeal were submitted.
It was argued, firstly, that the rendering illegible (Unleserlichmachen) of certain passages and the Review Chamber’s decision thereon were not covered by Article 187 (2). Under that provision all letters from a person detained on remand to a private individual had to be stopped if they gave rise to the suspicion of a criminal offence subject to public prosecution ex officio (von Amts wegen). This was not the case with the passages in question. If they were to be regarded as an offence under Articles 111 (1) or 115 (1) of the Criminal Code, in principle only the victim could act, and public prosecution (with the victim’s authorisation and that of his superior authority) under Article 117 (2) of the Criminal Code was possible only if the insults were made "person to person" and not if they were in a letter.
Secondly, Article 187 (2) authorised only the stopping of letters, not the deletion of specific passages.
21. On 20 October 1987, after a public hearing, the Supreme Court dismissed the first ground of appeal but upheld the second.
(a) On the assumption that the passages in issue contained "jokes of an insulting nature against prison officers", the court considered that there were grounds for suspecting the applicant of insulting behaviour (Beleidigung - Article 115 of the Criminal Code) rather than defamation (Article 111). Such an offence, if committed against an official in the exercise of his duty, required public prosecution with the victim’s authorisation (Article 117 (2) of the Criminal Code, see paragraph 26 below). In the present case, the offence resulted from the handing over by Mrs Plankl of an unsealed letter to a prison officer for the purpose of transmitting it to the investigating judge. It had thus been possible for the letter’s content to become known to several prison or court officers in the exercise of their duty. Article 117 (2) of the Criminal Code being applicable, the measure in question was covered by Article 187 (2) of the Code of Criminal Procedure.
(b) The investigating judge and the Review Chamber had, however, misapplied this provision, which authorised the stopping of letters but not the deletion of passages from them. The investigating judge had in fact not taken a "less severe measure" under an implied power, but a different measure which interfered with the interests of the prosecution authorities and the prison officers concerned, as they had the possibility of bringing criminal proceedings against Mrs Plankl on account of her remarks in the letter. The law had been violated in this latter respect, but Mrs Plankl had not been injured thereby and could therefore not complain of the dismissal of her complaint by the Review Chamber.
22. According to Article 68 (2) of the Code of Criminal Procedure:
"A person shall be disqualified from participating or deciding in the trial proceedings if he has acted as investigating judge in the same case ..."
23. The following provisions of the Code of Criminal Procedure govern the disqualification (Ausschliessung) of judges:
"A judge is obliged to bring circumstances which disqualify him to the immediate attention of the president of the court of which he is a member ..."
"From the moment when grounds for his disqualification come to his knowledge, every judicial officer (Gerichtsperson) shall refrain from all judicial acts, on pain of nullity of such acts. The judicial officer concerned may carry out judicial acts which are urgent, but only where there is danger in delay and if another judge or registrar cannot be appointed immediately ..."
24. Furthermore, under Article 72 the parties to the proceedings may challenge (ablehnen) a judge if they can show that there are reasons for doubting his complete impartiality. Although Article 72 refers expressly to grounds other than disqualification, it is the practice of the courts to apply Article 72 also in cases where a party raises an issue relating to a judge’s disqualification. In fact, the disqualification of a first-instance judge cannot subsequently be pleaded in nullity proceedings unless he was challenged before or at the trial or immediately after the ground for disqualification became known to the party (Article 281 (1), sub-paragraph 1, of the Code of Criminal Procedure). The procedure applicable in this respect is the following:
"An application by a party to challenge a judge shall be submitted to the court of which the person challenged is a member or declared orally before the registrar, at any time but not later than twenty-four hours before the start of the hearing in the case of a challenge to a member of the trial court, and not later than three days after service of the summons to appear at the hearing in the case of a challenge to the whole court. In the application the grounds of challenge must be stated precisely and, as far as possible, supported by evidence."
25. The control of correspondence of remand prisoners is governed by Article 187 of the Code of Criminal Procedure, which provides:
"(1) Remand prisoners may ... correspond in writing with all persons, provided that there is no danger that such persons may interfere with the purpose of the detention ...
(2) ... Letters from detainees which give rise to the suspicion that an offence, not being an offence which can be prosecuted only at the request of a person concerned, is being committed by means of them, are always to be stopped, unless they are addressed to a national general representative body, a national court or other national authority, or to the European Commission of Human Rights.
(3) ..."
Decisions concerning the persons with whom the detainee may correspond and the surveillance of correspondence are the responsibility of the investigating judge. A complaint against such a decision lies with the Review Chamber of the Regional Court (Article 188 of the Code of Criminal Procedure).
26. For the purposes of Article 187 (2), public prosecution offences (Offizyialdelikte) may justify the stopping of a letter, whereas private prosecution offences (Privatanklagedelikte) may not. In addition, it follows from the Supreme Court judgment of 20 October 1987 (see paragraph 21 above) that such measures may also be justified in the case of offences qualifying for public prosecution with the authorisation of the injured party (Ermächtigungsdelikte), for instance offences committed against officials in the exercise of their duty. In this latter respect Article 117 (2) of the Criminal Code provides:
"Where an offence against honour is committed against an official ... during the exercise of his duties ..., the public prosecutor shall, with the authorisation of the injured party and his superior authority, institute proceedings within the time-limit which would otherwise be available to the injured party for the lodging of a request for prosecution. The same shall apply where such an offence against [an official] in connection with one of his professional activities is committed in a printed publication, in a broadcast, or in some other manner whereby it becomes accessible to the general public."
VIOLATED_ARTICLES: 6
8
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-91065
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF KUPIEC v. POLAND
IMPORTANCE: 3
CONCLUSION: No violation of Art. 6-1
JUDGES: Giovanni Bonello;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nebojša Vučinić;Nicolas Bratza
TEXT: 5. The applicant was born in 1976 and lives in Kraków.
6. On 19 June 2000 the applicant sued three professors from the Cracow University of Science and Technology (Akademia Górniczo-Hutnicza) before the Cracow Regional Court (Sąd Okręgowy) alleging professional misconduct on their part and seeking protection of his personal rights. He submitted that the professors had deliberately made him fail his fourth year of studies. They allegedly prohibited him from participation in lectures and the examinations. In this respect he claimed PLN 400,000 in compensation from the professors and PLN 1,000,000 from the University.
7. On 8 October 2000 the applicant submitted information concerning his financial situation. He maintained that he received a family pension in the amount of PLN 322. He further stressed that he was a student, that he did not work and that he had incurred huge debts on his bank account (several thousand Polish zlotys).
8. On 20 October 2000 the Regional Court asked the applicant to submit a copy of his bank statement and the contract for the purchase of his car. In reply, on 23 October 2000 the applicant sent a letter to the court, claiming that his debts amounted to PLN 17,323. However, he could not ask the bank for a statement because the bank would have discovered his debts. He was also not able to submit the contract for the purchase of his car (Renault Clio) as it had been bought with his mother’s money.
9. On 3 November 2000 the Krakow Regional Court refused to exempt the applicant from the payment of court fees. The court held that the applicant had failed to submit evidence i.e. his bank statement in support of his allegations that he had substantial debts. According to the court, the fact that the applicant owned a Renault Clio was an indication that his financial situation was sound. The court stressed that it was impossible to cover the costs of the car maintenance with the applicant’s pension.
10. On 13 December 2000 the applicant lodged an interlocutory appeal. He stressed that the court fee for lodging his claim exceeded PLN 75,000, which he was unable to pay. He further maintained that he did not own any real estate and that he rented his apartment under the rent-control scheme. Moreover, he was not even able to pay the reduced rent and he already owed PLN 3,670.45 to the housing co-operative. He further claimed that the fact that he owned a car was of no relevance as he had bought it two years ago when his financial situation had been better, given that he had had a part-time job at the time. He did not have a copy of the contract for the purchase of the car. However, he maintained that he had bought a new car and had paid PLN 30,900 for it.
11. On 14 December 2000 the Regional Court again refused the applicant’s request. The court stressed that the fact that the applicant owned a car worth PLN 40,000 and at the same time his only income was a family pension of PLN 323 indicated that his financial situation was good and that he must have had some hidden resources. Otherwise, he would not be able to support himself and to maintain his car. According to the court, the applicant was trying to conceal his real financial situation.
12. On 4 January 2001 the applicant lodged an interlocutory appeal against this decision. He claimed that the court’s refusal to exempt him amounted to a violation of his right of access to a court.
13. On 22 January 2001 the Krakow Court of Appeal dismissed the applicant’s interlocutory appeal. The court held that a person applying for legal aid should not take out a loan in a situation when he still had assets (a car). In addition, the applicant had failed to provide a detailed statement about his financial situation.
14. On 15 February 2001 the Regional Court ordered the applicant to pay PLN 29,100 as a fee for lodging his statement of claim on pain of having his claim returned.
15. On 25 February 2001 the applicant again asked to be exempted from the court fees. He claimed that he was unable to pay that amount. He owed PLN 20,000 to the bank and had no savings. In addition, his claim related to the protection of personal rights. As regards his car, he could not sell it since a different set of civil proceedings concerning it was pending. Lastly, he maintained that apart from the family pension - PLN 326 - he did not have any other income. He had no possessions and the car was his only asset.
16. On 3 April 2001 the Regional Court refused the applicant’s request. The court held that the applicant should have sold his car in order to obtain money for court fees.
17. On 18 April 2001 the applicant again lodged an interlocutory appeal against this decision. The applicant repeated his earlier arguments and referred to the right of access to a court.
18. On 21 May 2001 the Court of Appeal gave a decision and exempted the applicant from 80 % of the court fees for lodging his statement of claim. The court found that the court fee in the amount of PLN 29,100 constituted a limitation on the applicant’s right of access to a court and that the amount had to be reduced. At the same time, it held that a court fee in the amount of 5,820 PLN could not be considered excessive for the applicant.
19. On 13 July 2001 the applicant again made an interlocutory appeal and submitted that PLN 5,820 was too much and he was unable to pay it.
20. On 16 July 2001 the Regional Court refused to grant the applicant any further exemption from court fees. Upon the applicant’s further appeal, the Krakow Court of Appeal upheld the decision on 23 October 2001. The court held that the applicant had not submitted any new arguments which would have justified a further exemption from court fees.
21. On 7 January 2002 the Regional Court ordered the applicant to pay a court fee of PLN 5,820 for lodging his statement of claim on pain of having the claim returned.
22. On 14 January 2002 the applicant lodged yet another motion for an exemption from court fees. He stated among other things that he had lost the right to a family pension.
23. On 18 January 2002 the Regional Court returned the statement of claim to the applicant as he had failed to pay the required court fee. On 4 March 2002 the Regional Court quashed the decision to return the statement of claim to the applicant. On the same date it dismissed the applicant’s motion for an exemption. It held that there were no new circumstances which would argue in favour of allowing the applicant’s request. The applicant appealed to the Court of Appeal.
24. On 15 May 2002 the Court of Appeal dismissed the applicant’s interlocutory appeal. The court held that the applicant had already been exempted from the greater part of the fees due in his case (80 %) and that he only had to pay PLN 5,820. Furthermore, despite his allegedly bad financial situation, the applicant had been able to maintain a car. The court acknowledged that the car was the subject of enforcement proceedings. However, since the applicant had not been able over a two-year period to set aside the sum required for court fees, his application for an exemption had to be dismissed.
25. On 31 July 2002 the Regional Court returned the statement of claim to the applicant since he had failed to pay the required court fee. The applicant appealed.
26. On 13 September 2002 the court ordered the applicant to pay the court fee of PLN 1,164 for lodging an interlocutory appeal. On 30 September 2002 the applicant asked to be exempted from payment of this fee.
27. On 2 October 2002 the court asked the applicant to submit a detailed statement about his financial situation.
28. On 19 November 2002 the Cracow Regional Court exempted the applicant from the fee for lodging his interlocutory appeal.
29. On 6 March 2003 the Court of Appeal dismissed the applicant’s interlocutory appeal against the decision to return the statement of claim to him.
30. The legal provisions applicable at the material time and questions of practice are set out in paragraphs 23-33 of the judgment delivered by the Court on 19 June 2001 in the case of Kreuz v. Poland (no. 28249/95, ECHR 2001-VI; see also Jedamski and Jedamska v. Poland, no. 73547/01, §§ 2939).
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-122766
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: ADMISSIBILITY
DATE: 2013
DOCNAME: ÇAKIR AND OTHERS v. TURKEY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: András Sajó;Guido Raimondi;Helen Keller;Nebojša Vučinić;Peer Lorenzen
TEXT: A list of the applicants is set out in the Appendix. Additionally, the case and decision numbers of the impugned proceedings appear in the Appendix.
On various dates, the applicants initiated actions before the civil courts or proceedings were brought against them before the civil or criminal courts. The procedures lasted several years.
A description of the relevant domestic law may be found in Müdür Turgut and Others ((dec.), no 4860/09, §§ 19-26, 26 March 2013).


ITEMID: 001-80361
LANGUAGEISOCODE: ENG
RESPONDENT: FIN
BRANCH: ADMISSIBILITY
DATE: 2007
DOCNAME: BJORKLUND v. FINLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicants, Mr Otto Björklund and Ms Harriet Enholm, are Finnish nationals who were born in 1941 and 1946 respectively. The first applicant lives in Brussels, Belgium and the second applicant in Ekerö, Sweden. The third applicant is the estate (kuolinpesä, dödsbo) of the late Mrs Vivan Björklund, represented by the first applicant. The applicants are represented before the Court by Mr Harry Hedman, a lawyer practising in Helsinki. The respondent Government are represented by their Agent, Mr Arto Kosonen of the Ministry for Foreign Affairs.
The facts of the case, as submitted by the parties, may be summarised as follows.
In 1944 Mrs Vivan Björklund inherited property – Hagen RN:o 1:21 – (“Hagen property”) at Hemtans in the municipality of Espoo (which, since 1972 is the “city of Espoo”). Since her death on 16 July 2000, the property has been part of her estate and has belonged to her beneficiaries, the first and second applicants. The property has a surface area of 5,854 hectares and is undeveloped. It is situated near the central park of Espoo.
In 1958 the Espoo Municipal Council (kauppalanvaltuusto, köpingsfullmäktige, now the City Council (kaupunginvaltuusto, stadsfullmäktige)), adopted a municipal building plan (rakennussuunnitelma, byggnadsplan; called as rakennuskaava under the Building Act (rakennuslaki, byggnadslagen; Act no. 370/1958)) for the locality, including the Hagen property. The plan was approved by the Uusimaa County Administrative Board (lääninhallitus, länsstyrelsen) on 12 March 1959. The plan assigned potential floor space of 9,105 square metres on the Hagen property.
On 26 January 1961 the County Administrative Board ordered that no new building could be constructed in that area without its permission until adequate water, sewerage and traffic facilities had been provided (ban on building (rakennuskielto, byggnadsförbud)). The Ministry of the Interior (sisäasiainministeriö, inrikesministeriet) upheld that decision on 7 November 1961.
On 29 January 1963 the Municipal Council decided that a wider area should be incorporated within a town plan (asemakaava, stadsplan) and renewed the ban on building. On 3 March 1964 the Municipal Council decided that a town plan would be prepared for the Hemtans and surrounding areas and imposed a new ban on building.
On 15 December 1964 the Municipal Council annulled the municipal building plan, because a more extensive town plan was to be drawn up. A ban on building was imposed pursuant to section 42(2) of the Building Act. The decision was approved by the Ministry of the Interior on 26 February 1965. The ban on building was renewed sixteen times, so that it remained in force for over 33 years, until 1 November 1994. It would appear that in 1985 and possibly in other years the applicants (or their relatives) unsuccessfully appealed to the Supreme Administrative Court against the renewals of the ban on building.
In 1968 a programme to draw up a master plan (yleiskaava, generalplan) was adopted. A regional development plan (seutukaava, regionplan) was adopted in 1977 under the terms of which, according to the Government, the Hagen property became part of a larger recreation zone. The applicants maintained that the Hagen property was marked with a symbol denoting an area of dense population. In January 1990 a proposal for a component master plan (osayleiskaava, delgeneralplan) was made in respect of a northern section of Espoo. Under this proposal the southern part of the applicants’ property would have been used for detached housing.
During 1985-1986 the applicants negotiated with the city of Espoo for a possible land-exchange contract. A letter of intent was signed in 1988 and was stated to be valid for five years. As no town plan was adopted, the letter of intent lapsed in 1992.
On 10 December 1991 the City Board (kaupunginhallitus, stadssyrelsen) prolonged the ban on building on the Hagen property for the fifteenth time on the ground that a town plan was due to be drawn up for the area. The applicants appealed to the Ministry of the Environment (ympäristöministeriö, miljöministeriet; Ministry). They submitted that the ban on building, which had applied to the Hagen property for 30 years, could not be regarded as temporary within the meaning of the existing legislation and was unconstitutional. They also asked the Ministry to request the competent municipal authority to draw up a master plan and a town plan for the area in question.
At the request of the building board (rakennuslautakunta, byggnadsnämnden), the City Council decided to remove the detached housing zone from the proposal for a component master plan in a decision of 11 August 1992.
On 11 May 1993 the Ministry partially lifted the ban on building in the area. However, in spite of the applicants’ appeal the ban on building in respect of the Hagen property remained in force. The Ministry stated that, as the town plan concerning the area was included in the planning programme of the city of Espoo and the Hagen property was located near the central park, the planning arrangements in respect of that area of land had to be decided in a town plan. By a separate decision of 22 July 1994, it rejected an application by the applicants for the city of Espoo to be required to adopt a detailed plan. The applicants appealed to the Supreme Administrative Court (korkein hallinto-oikeus, högsta förvaltningsdomstolen) against these two decisions.
Meanwhile, the ban on building was extended (for the sixteenth time) until the end of 1995 by a decision of the City Council on 7 December 1993.
In the autumn of 1993 a planning programme for the years 1994-1998 was adopted. The planning area “Hemtansåker Nr 331600”, covering the Hagen property, was included in the programme, but without any detailed time-table specifying when it would be subject to a further plan.
On 19 January 1994 the City Council adopted part I of the master plan (yleiskaavan osa I, generalplan del I) for the north of Espoo. The Hagen property was now designated for recreational use. The Ministry dismissed the appeals and approved the plan on 27 June 1996. The Supreme Administrative Court rejected the applicants’ appeal on 23 December 1997.
Meanwhile, on 1 November 1994 the Supreme Administrative Court gave its decision on the (fifteenth) ban on building that had been issued by the City Board on 10 December 1991 and approved by the Ministry on 11 May 1993. The court ruled, inter alia, that the city had not started to draw up a town plan, and that, taking into account the planned use of the land and the length of the ban on building, there had been no special reasons to renew it. However, as the ban had expired at the end of 1993, it did not rule further on the case. The decision became a precedent (KHO 1994 A 28).
On 9 March 1995 the Supreme Administrative Court dismissed the applicants’ appeal concerning the obligation to adopt a detailed plan. It found that there were no legal grounds under which the Ministry could oblige the city to draw up such a plan.
The City Council approved the Central Park I component master plan for a northern section of Espoo on 1 April 1996. The decision was approved by the Ministry on 3 October 1997 and upheld by the Supreme Administrative Court on 1 July 1999. This plan covered a small southern part of the applicants’ property, which was assigned partly to a neighbourhood recreational zone and partly to a conservation zone (the Vassholmsberget hazel grove).
In December 1999, basing their application on the Supreme Administrative Court’s decision of 1 November 1994, the applicants applied for an exemption permit in order to build 38 terraced houses and 13 detached houses, comprising of 9,105 square metres in total, despite the lack of any town plan. Their application was rejected on 26 January 2001 by the Ministry, which found as follows:
“In the regional development plan of 1977 the [Hagen] property was assigned to a recreational zone. Since then two master plans covering the area in question have been adopted, namely part I of the master plan for the north of Espoo and the Central Park I master plan. These plans designate the bulk of the property for recreational use, outdoor activities and sports. The property is crossed by important recreational routes leading from the central park to the north. The Vassberget area is situated in the south-east section of the property, which is reserved for use as a conservation zone in part I of the master plan for the north of Espoo, and in the southern part of the property there is the Lillträskmossen area, which is reserved for conservation in the Central Park I master plan.
Before a decision can be taken on whether the applicants’ property can be built on ... both a master plan and a town plan have to be drawn up for the area, and this involves also an examination of the need for recreational zones, the connections to the central park, and the suitability of the property for building purposes. A building project on this scale cannot be based on an exemption permit.”
The applicants appealed to the Supreme Administrative Court, claiming, inter alia, that the refusal to grant them an exemption allowing them to build and the lack of a detailed plan had de facto denied them the right to peacefully enjoy their property for over 30 years without compensation.
On 14 May 2002 the Supreme Administrative Court dismissed their appeal.
On 8 October 2004, upon the applicants’ application, the Assessment Adjustment Board (oikaisulautakunta, rättelsenämnden) of the Espoo Tax Office (verotoimisto, skattebyrå) changed the rateable value of their property for the years 1998–2004 to correspond to the planning situation (use of the land for recreational and outdoor activities) and the liability to rates on the value of the building was cancelled.
The 1919 Constitution Act (Suomen Hallitusmuoto, Regeringsform för Finland; Act no. 94/1919), which was in force until 1995, provided that the right of Finnish citizens to their possessions was to be secured by law (section 6(1)). Since 1995 property has been protected by section 12 of the Constitution Act (Act no. 969/1995). This provision is equivalent to section 15 of the present Constitution (perustuslaki, grundlagen; Act no. 731/1999).
Section 5(1) of the Building Act, as worded at the relevant time, provided that urban development (taaja-asutus, tätbebyggelse) was permitted only in areas with a ratified town plan, municipal building plan or shore plan (rantakaava, strandplan). According to subsection 2, exemptions could be granted in individual cases or in certain areas.
Section 26(2) of the Building Act required the authorities to ensure that planning measures would not hinder the implementation of the regional development plan. Under section 27 the authorities had to ensure that new construction would not hinder the use of land as contemplated in the regional development plan (a building restriction (rakentamisrajoitus, byggnadsinkränkning)).
Section 42 prohibited the construction of new buildings if it contravened a town plan (a building restriction). Subsection 2(3) imposed a ban on building in areas for which a town plan was scheduled to be drawn up.
By virtue of section 42, subsection 3 the ban on building was valid for a maximum of two years. However, if special reasons so warranted, it could be extended for a maximum of two years at a time. The legislation in force at the relevant time did not include any specific provisions on the maximum duration of bans on building. Section 143(1) provided, however, that the competent ministry could set a time-limit by which the municipal authorities had to make a decision on a town plan.
Under section 53 (1), of the Land Use and Building Act (maankäyttö- ja rakennuslaki, markanvändnings- och bygglag; Act no. 132/1999), which repealed the Building Act with effect from 1 January 2000, a ban on building is valid for a maximum of two years. While the plan remains incomplete, the municipality may extend the term for a maximum of two years at a time. However, under the new legislation, a ban on building may not exceed eight years in all.
According to section 132 of the Building Act, as worded at the relevant time, the Ministry had power to grant exemptions from provisions, orders, prohibitions or other restrictions concerning construction (such as prohibitions against urban development) laid down in the Building Act or adopted by virtue of it, if an exemption would not substantially impede the implementation of planning or other housing arrangements or the achievement of nature conservation objectives.
Section 56(1) of the Building Act provided that if a town plan or a ratified local master plan designated land for a purpose other than private construction and the landowner was thereby prevented from using the land in a manner generating a reasonable return, the municipality concerned or, if the land was designated in the plan as being required for State needs, the State, was obliged to expropriate the land. Section 58(1) specified that the duty of the municipality or the State to expropriate the land took effect only after the landowner’s application for an exemption from the restriction had been refused and the decision had become effective.
Section 64(1) allowed the landowner to demand expropriation if the municipality or State failed to comply with its obligation voluntarily.


ITEMID: 001-58019
LANGUAGEISOCODE: ENG
RESPONDENT: FRA
BRANCH: CHAMBER
DATE: 1997
DOCNAME: CASE OF GUILLEMIN v. FRANCE
IMPORTANCE: 2
CONCLUSION: Violation of Art. 6-1;Preliminary objection rejected (victim);Preliminary objection rejected (non-exhaustion of domestic remedies);Violation of P1-1;Pecuniary damage - reserved;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings
TEXT: 6. In a decision of 7 October 1982 the Prefect of the département of Essonne made a declaration that it was in the public interest to acquire by compulsory purchase land needed for the development of a residential area in the town of Saint-Michel-sur-Orge, known as the Fontaine de l’Orme project. The land included a plot belonging to the applicant on which stood a building used as a secondary residence by a member of her family.
7. On 10 September 1982 the mayor of Saint-Michel-sur-Orge had applied to the Essonne expropriations judge, who on 6 December 1982 made an expropriation order transferring the applicant’s land to the municipality and setting the amount of compensation to be paid to her. On 28 March 1983 the applicant appealed against the order.
8. On 28 July 1983 the Evry New Town Development Corporation (EPEVRY), which was responsible for carrying out the scheme, informed Mrs Guillemin that she should have vacated the land by 14 July 1983. In the same month the town council demolished the fence, the buildings, the infrastructure for the supply of services, the vegetable garden and the orchard on the land.
9. On 14 October 1983, on the appeal by the expropriated applicant, the Expropriations Division of the Paris Court of Appeal increased the amount of the expropriation compensation to 221,858 French francs (FRF), which is currently held in deposit at the Bank for Official Deposits (Essonne Treasury).
10. On 19 November 1982 Mrs Guillemin had brought proceedings in the Versailles Administrative Court. On 24 October 1985 the court set aside the public-interest declaration on the grounds that it was ultra vires. It held that the declaration should have been made in a decree after consultation of the Conseil d’Etat and not in a prefectoral decision (see paragraph 23 below). The inspector appointed to conduct the inquiry prior to the declaration in question had recommended that the scheme should not include existing houses that had sufficient land to make a garden for family use, as was the case with the applicant’s property.
11. The town council appealed on 26 December 1985 and lodged a pleading on 28 April 1986.
In a judgment of 13 March 1989 the Conseil d’Etat upheld the Administrative Court’s judgment. It refused Mrs Guillemin’s application for formal note to be taken that the town council had automatically abandoned the proceedings as it had failed to file a supplementary pleading in time, and also refused her claim for compensation, which had been submitted for the first time on appeal.
12. The applicant lodged two appeals on points of law with the Court of Cassation, the first against the expropriation order of 6 December 1982 and the second against the judgment of the Paris Court of Appeal of 14 October 1983.
In two judgments of 4 January 1990 the Court of Cassation (Third Civil Division) set aside the expropriation order providing for the transfer of ownership and "in consequence" set aside the judgment of the Paris Court of Appeal, which had ruled on the expropriation compensation. These judgments were served on the town council on 22 May 1990.
13. On 20 June 1990 Mrs Guillemin applied unsuccessfully to the town council, seeking either restoration of her rights or compensation in the amount of FRF 4,194,655.65.
14. On 10 November and 17 December 1990 Mrs Guillemin applied to Evry State Counsel. On 11 March 1991 he decided to take no action.
15. On 23 December 1991 the applicant challenged the town council’s implied decision to refuse her application in the Versailles Administrative Court. Her claim for restoration of her rights was accompanied by an application for compensation for non-pecuniary damage and loss of enjoyment of her property, which she assessed at FRF 1,971,795.
16. On 13 January 1992 she brought proceedings in the Evry tribunal de grande instance against the mayor of Saint-Michel-sur-Orge and EPEVRY, seeking an order for demolition of the buildings erected on her land by the town council, with periodic penalties in the event of failure to comply, and damages.
In joint submissions the defendants argued that it was not possible to return the property. It had been sold to EPEVRY with a view to a housing development and the individual building plots had in turn been sold to various different purchasers and had now been built on and were occupied.
17. On 1 February 1993 the Evry tribunal de grande instance deferred judgment until the Versailles Administrative Court ruled and listed the case for the hearing that was to be held on 10 June 1993 by the judge in charge of preparing the case for trial.
18. The Administrative Court held a hearing on 10 May 1994 and gave judgment on 24 May 1994.
It held that the claim for return of the land was inadmissible on the ground that "it [was] not for the administrative courts to issue orders to the authorities" and ruled as follows on the claim for compensation:
"It is clear from the preparation of the case for trial that the expropriation ... in the public interest [on] 7 October 1982 was carried out unlawfully. The dispossession of [Mrs Guillemin] was accordingly an illegal expropriation of private property. It is for the ordinary courts alone, which protect private property, to deal with [her] claim for compensation for the loss [she allegedly] sustained as a result of the dispossession or of any direct consequences of it."
19. In the meantime, on 3 March 1994, Mrs Guillemin’s application had been struck off the list of the Evry tribunal de grande instance. It was entered in the list again on 25 November 1994. On 5 January 1995 the applicant filed fresh submissions seeking compensation.
20. In a judgment of 23 October 1995 the Evry tribunal de grande instance noted that Mrs Guillemin had implicitly abandoned her application for the buildings on her land to be demolished and held that she was entitled to compensation from the expropriating town council. It deferred judgment on the compensation claim, ordered an expert report on the value of the expropriated plot of land as at December 1982 and on the loss arising from her being deprived of her land and the price of it since then, and ruled that the town council should pay an advance on the costs of the expert report.
21. The expert received the file on 27 November 1995. He summoned the parties to an inspection of the site on 12 March 1996 and filed his report on 29 July 1996. He assessed the total value at FRF 1,602,805, which he broke down as follows: FRF 462,139 for the value of the property, covering the sum needed to purchase a similar property, FRF 746,338 for the interest on the principal sum from 14 July 1983 to 30 September 1996 and FRF 394,328 compensation for loss of the enjoyment of the property over the same period. For this last item he adopted a rate of return of 6.50% on the value of the property, excluding the sum needed to purchase a similar property.
22. The proceedings are at present pending in the Evry tribunal de grande instance.
23. Expropriation proceedings in the public interest comprise two separate stages.
The first stage is administrative. It begins with a preliminary inquiry - opened by a prefectoral decision - to gather information on the grounds for the expropriation. The inspector appointed to conduct the inquiry has one month from the date on which it ends to consider observations from the public, to draw up his findings and then to forward the file to the administrative authority. If his opinion is unfavourable, or is favourable subject to conditions that the expropriating authority is not minded to satisfy, the public-interest declaration must be made in a decree adopted after consultation of the Conseil d’Etat rather than in a prefectoral decision. This declaration establishes that the scheme is in the public interest. The expropriation liability order subsequently made by the Prefect identifies the property to be expropriated and ends the administrative stage of the expropriation.
The next step in the procedure is for the expropriating authority to forward the expropriation liability order, within six months of its publication, to the judicial authority for expropriation matters, a judge of the ordinary court, failing which it will lapse.
24. The second stage takes place before the expropriations judge. He alone has the power to order expropriation and assess compensation. He does not, however, have competence to assess the lawfulness of the steps taken by the administrative authority. On receipt of the expropriation liability order that has been forwarded to him, he will issue an expropriation order transferring ownership to the expropriating authority and depriving the former owner of the right to dispose of his property. The former owner, however, retains the use of it as a provisional occupier until compensation for the loss of possession is paid or, in the event of a dispute, deposited.
The proceedings for issuing the expropriation order are separate from those leading to the judicial assessment of the expropriation compensation; they are generally conducted entirely by the expropriating administrative authority. This second set of proceedings may commence as soon as the prefectoral decision to open the public inquiry has been taken.
The calculation of the expropriation compensation takes into account the value of the expropriated property, all the costs necessarily incurred in purchasing a replacement and, as subsidiary compensation, the depreciation in value of the remaining property where only part of it has been expropriated. The compensation amount may always be fixed by agreement, even after the expropriation order has been issued.
25. Anyone affected by an expropriation that enables a scheme in the public interest to be carried out may challenge the validity of the public-interest declaration in the administrative court within two months of its publication. Appeals against expropriation liability orders must be brought within the same time. As a prefectoral decision to open a public-interest inquiry is seen as a purely preliminary measure, its lawfulness may only be challenged in conjunction with one of those two remedies. Any application on the merits may be accompanied by an application for a stay of execution, but appeals to the administrative courts do not in any event have a suspensive effect and do not prevent the expropriation proceedings continuing in the ordinary courts.
26. The only means of challenging an expropriation order is by lodging an appeal on points of law within two weeks of the order being served. An appeal against a judgment in which compensation has been assessed may be brought within two weeks of the decision being served and any appeal on points of law must then be brought within two months of the Court of Appeal’s judgment being served. These appeals do not have a suspensive effect and do not prevent possession being taken of the expropriated property.
Lastly, if the compensation has not been either paid or deposited by the expropriating authority within a year of the decision whereby it was assessed, the person expropriated may seek review of it by the expropriations judge.
27. Once a public-interest declaration has been set aside, there is no legal basis for the expropriation order. If, however, the declaration is set aside after the order has become final, the expropriation cannot be legally challenged. It is accepted that a further public inquiry may be held to rectify the situation. In any event, the adage "public buildings that have been erected unlawfully are not demolished" applies.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-109066
LANGUAGEISOCODE: ENG
RESPONDENT: MDA
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF HADJI v. MOLDOVA
IMPORTANCE: 4
CONCLUSION: Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect)
JUDGES: Alvina Gyulumyan;Corneliu Bîrsan;Ján Šikuta;Josep Casadevall;Luis López Guerra;Mihai Poalelungi;Nona Tsotsoria
TEXT: 5. On 24 September 2003 the applicant was arrested on suspicion of being a member of a criminal gang specialising in the theft of cars. On 23 November 2006 the applicant was convicted and on 25 April 2007 his conviction was upheld on appeal by the Chişinău Court of Appeal. He was sentenced to twelve years’ imprisonment. During the criminal proceedings against him the applicant was detained in the following detention facilities:
- 26 November 2003 – 2 December 2003: Prison no. 13;
- 2 December 2003 – 14 January 2004: detention facility of the Ministry of Internal Affairs;
- 14 January 2004 – 16 February 2004: Prison no. 13;
- 16 February 2004 – 25 February 2004: detention facility of the Ministry of Internal Affairs;
- 25 February 2004 – 4 January 2007: Prison no. 13;
- 4 January 2007 – 1 March 2007: Prison no. 16;
- 1 March 2007 – 1 April 2008: Prison no. 13;
- 1 April 2008 – 2 June 2010: Prison no. 8;
- 2 June 2010 – 4 February 2011: Prison no. 12;
- 4 February 2011 – present: Prison no. 8.
6. According to the applicant the conditions of detention in Prison no. 13 and Prison no. 8 were very poor and amounted to inhuman and degrading treatment. In respect of Prison no. 13, the applicant submitted that the cells were overcrowded and humid and there was no ventilation. He also complained about the quality and quantity of the food. As to Prison no. 8, he submitted that it was located on territory controlled by the Transdniestrian separatist authorities but was itself under the control of the Moldovan constitutional authorities. The separatist authorities had cut off the power and water supplies and disconnected the prison from the sewage network. As a result the inmates had electrical power for only three hours per day and the water was limited to fifteen litres per day, plus another fifty litres once a week for showers and washing clothes.
7. The relevant parts of the Report of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) concerning a visit to Moldova between 14 au 24 September 2007 read as follows (unofficial translation):
“84. Penitentiary establishment No. 8 in Bender had been the subject of three visits by the CPT since 2003, following the decision of the municipal authorities of Bender to deprive the establishment of running water and electricity supply (and, as of 2005, to disconnect it from the city’s sewage disposal system). The seriousness of the situation confronting the establishment led the Committee to state in the report on its visit in March 2006 that, unless the above-mentioned problems were resolved, prisoners should be relocated elsewhere. In their response to that report, the Moldovan authorities indicated that they considered the situation at Penitentiary establishment No. 8 in Bender to be under control and saw no reasons for the relocation of prisoners to other establishments.
85. When re-visited by the CPT’s delegation on 21 September 2007, the establishment was holding 99 prisoners (compared with 101 on 18 March 2006). The delegation was informed that some 35 inmates had been released since March 2006, and approximately the same number of new prisoners had been admitted. The great majority of the prisoners currently held at the establishment originated from the Transdniestrian region or nearby locations. The delegation gained the impression that all prisoners who had been admitted in the last year had themselves asked for a transfer to Bender, in particular because of wishing to be closer to their families. An examination of the documentation confirmed that newly admitted prisoners had been expressly informed of the conditions prevailing at the establishment (i.e. absence of running water, electricity and sewage disposal) and had confirmed with their signature their wish to be transferred there. Further, it appeared that the few inmates who had requested transfer to other establishments had received satisfaction.
86. As regards material conditions, in terms of living space per prisoner (some 6 m²), state of repair and decoration, the dormitories in which inmates were accommodated offered conditions superior to those witnessed at any other penitentiary establishment seen by the CPT in Moldova. Further, prisoners stated that the food they received was better than that provided elsewhere. Moreover, no problems were reported as regards the heating.
However, in the absence of any progress in the stand-off between the municipal authorities of Bender and the Moldovan authorities, electricity continued to be produced by generators and was available 3 to 4 hours a day in the evenings, enabling inmates inter alia to watch TV. Further, water was delivered regularly by a lorrycistern and was distributed into reservoirs supplying the kitchen and the bathroom; inmates could take a shower once a week. As for toilets, cesspools had been installed in the basements of the unused buildings.
87. Prisoners could circulate freely around the establishment’s extensive premises and engage in outdoor sports. However, there was a shortage of organised activities. Some 36 prisoners were employed in the establishment’s general services (kitchen, cleaning, repairs, etc.). Further, the establishment’s director spoke of plans to set up a carpentry workshop; however, it was unclear when these plans would materialise.
88. The delegation was informed that relations with the municipal authorities of Bender had become less tense in the last year. As a result, staff travelling across the border between Moldova and the Transdniestrian region were reportedly able to come to work on a regular basis.
89. To sum up, it is clear that the Moldovan authorities have continued to take steps to alleviate, as far as possible, the difficult situation facing Penitentiary establishment No. 8 in Bender and to ensure that the health and welfare of prisoners are protected. Further, there are signs of a more pragmatic approach on the part of both parties concerned by the stand-off. This is encouraging.
VIOLATED_ARTICLES: 3