ITEMID: 001-86586
LANGUAGEISOCODE: ENG
RESPONDENT: BGR
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: IVANOVA-SOKOLOVA v. BULGARIA (II)
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Isabelle Berro-Lefèvre;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Snejana Botoucharova;Volodymyr Butkevych
TEXT: The applicant, Ms Yulia Kostadinova IvanovaSokolova, is a Bulgarian national who was born in 1954 and is presently serving a prison sentence in Sliven Prison. She was represented before the Court by Ms A. Mircheva, a lawyer practising in Sofia. The Bulgarian Government (“the Government”) were represented by their Agent, Ms M. Kotseva, of the Ministry of Justice.
The applicant had two previous applications with the Court (nos. 46587/99 and 77117/01), in both of which she complained, inter alia, about her conditions of detention between 1993 and 2001 and the medical care she received in custody (see below). In application no. 46587/99 the applicant also raised a complaint in respect of the fairness of the 199396 criminal proceedings against her (see below). These applications were declared inadmissible by committees of three judges, acting under Article 28 of the Convention, on 27 April 1999 and 8 November 2002 respectively.
The facts of the case, as submitted by the parties, may be summarised as follows.
Between 1971 and 1987 the applicant was convicted six times of various offences and sentenced to several terms of imprisonment, which she served before 1990.
Between 1991 and 1993 the applicant committed a number of offences of fraud in Sofia. She was arrested on 1 July 1993. Later she was charged and prosecuted. On 6 June 1996 the Sofia District Court found her guilty and sentenced her to ten years’ imprisonment. Her conviction and sentence were upheld by the Supreme Court on 11 December 1996.
On 11 July 1997 the Sliven District Court convicted the applicant of insulting a prison officer and sentenced her to six months’ imprisonment.
On 17 December 1999 the Sofia District Court convicted the applicant of falsely accusing two investigators and another official of bribery, and sentenced her to three years’ imprisonment.
In a decision of 7 December 2000 the Sofia District Court joined the three punishments and imposed a global term of imprisonment of thirteen years.
In a decree of 16 July 2001 the President of the Republic partially pardoned the applicant.
According to the medical documents in the file and the applicant’s submissions in her observations, she suffers from the following medical conditions: (i) chronic bronchitis, diagnosed in 1997, but having first developed a few years earlier; (ii) bronchial asthma, diagnosed in 1998 as a complication of the chronic bronchitis; (iii) arterial hypertonia, diagnosed for the first time in 1998; (iv) chronic hydronephrosis of the right kidney, diagnosed in 1998, but which had first occurred earlier; (v) a cyst on the left ovary; (vi) polyallergy to contrast media; (vii) reactive depression; and (viii) neurosis.
The applicant started serving her sentence in the Sliven Prison for female offenders on 6 January 1994.
On 15 April 1998 her sentence was interrupted until 8 June 1998 for medical reasons. As she did not return to prison, she was put on the national list of wanted persons and on 15 August 1998 was arrested and sent back to Sliven Prison.
The applicant’s sentence was interrupted again on 7 November 1998 until 8 January 1999. As she failed to return once more, she was arrested on 14 January 1999 and sent to Sliven Prison on 1 February 1999.
A further interruption was granted on 19 May 1999, until 15 November 1999. As she again did not return to prison, she was arrested on 27 April 2000 and sent there.
Another interruption was granted between 5 April 2001 and 23 June 2001. The applicant returned to prison on 25 June 2001.
It seems that each time the applicant was arrested and returned to prison, she did not produce any documents showing that she had used the interruption of her sentence for medical treatment and provided no specifics of the medical examinations of treatments she had undergone while at liberty. On one occasion, in 1999, she claimed that she had consulted three doctors from the hospital of the Ministry of Internal Affairs. When contacted by the prison authorities, the doctors denied ever having met the applicant.
The latest interruption of the applicant’s sentence for medical reasons was granted on 13 December 2001, until 10 June 2002. She did not return to prison.
While in prison, the applicant underwent many medical examinations and tests. On a number of occasions she refused to submit to tests.
On 18 February 2004 the applicant was arrested by the Pirdop police on suspicion that she had used a forged identity card to pass herself off as another person. She was charged with knowingly using false documents.
On 20 February 2004 the Pirdop District Court decided to place the applicant in pretrial detention. She was sent to an investigation detention facility in Pirdop. On admission she was medically examined.
The facility was situated on the premises of the Pirdop police department in the town centre. According to the description provided by the Bulgarian Helsinki Committee on the basis of a visit carried out in 2004, it had three cells, each measuring approximately three by two metres, with high ceilings. Each cell had a twolevel metal bed with mattresses, two blankets and pillows, as well as a small table and two small chairs. Additional blankets and bed sheets were provided upon request. The mattresses and blankets were clean but worn out. The cells did not have sanitary facilities. They did not have windows, but only openings in the doors, and were equipped with not very bright luminescent light bulbs, with the result that the lighting in them was dim, especially when the windows in the corridor, which were painted brown, were closed. The cell walls were frequently repainted and were in a satisfactory condition. While no outdoor exercise was available, the detainees were taken out of the cells for meals and the toilet for about thirty minutes three times a day; during this time the cell doors and the windows in the corridor were left open for ventilation. Meals were served in a separate room with a table, chairs, a sink and metal lockers for the detainees’ personal belongings. Adjacent to this room were the bathroom and the toilet. The toilet, which was of the Asian type, was quite dilapidated. The bathroom had a boiler, which made possible a shower twice a week. No timelimits were placed on showering. The detainees were not forced to use buckets to relieve themselves in the cells.
The facility did not have a medical unit or resident medical staff. On arrest detainees were taken to the Pirdop local emergency service for examination. Whenever a detainee needed a doctor or a dentist, he or she was transported in a police car to the local hospital or an outside doctor was called. There were eleven officers on the staff, none of them female. When necessary, a female police officer was called from the local police station.
The facility was closed at the end of 2006 as part of a programme for the improvement of pretrial detention facilities in the country in the runup to its accession to the European Union.
During her stay in the facility the applicant was apparently not banned from accessing the toilet every time she needed to do so. However, each time she had to notify the guards, who were all male.
On 28 March and 8 April 2004 the applicant was medically examined. On both occasions she complained of pain in the chest and the lumbar area; the doctors’ conclusions were that her state of health did not require hospitalisation and that she could remain in the facility.
The applicant’s stay in the facility was interrupted several times by transfers to another investigation detention facility in Sofia, where she had to appear for court hearings. These transfers took place between 25 February and 5 March, between 16 and 23 March, and between 9 and 15 April 2004. This facility provided better conditions; there was abundant access to natural light during the day and proper lighting at night, sanitary facilities in the cells and good ventilation.
On being admitted to the investigation detention facility in Sofia on 16 March 2004, the applicant informed the resident doctor that she suffered from hydronephrosis. She was then taken for an examination at the Sofia Prison hospital, where she was prescribed medication. According to the doctor servicing the medical centre of the Sofia detention facility, the applicant had not mentioned other conditions or symptoms and had not exhibited external signs of illness during the routine admission checkups.
On 9 April 2004 the applicant, represented by an ex officio counsel, entered into a plea agreement with the prosecution in respect of the charges of using false documents. The agreement was upheld by the Pirdop District Court at a public hearing held on 20 April 2004. The applicant was sentenced to six months’ imprisonment, which she was to serve after the expiry of her initial thirteenyear sentence.
On 21 April 2004 the Pirdop District Prosecutor’s Office sent a copy of the plea agreement to the Ministry of Justice, advising it that the applicant was to be transferred to Sliven Prison within three days. However, due to a lack of suitable transport she remained in Pirdop.
On 26 April 2004 the applicant complained to the prosecution authorities about not being transferred to Sliven Prison. After conducting an inquiry, in a decision of 16 June 2004 the Sofia Regional Military Prosecutor’s Office refused to open a criminal investigation against the officials allegedly responsible for the delay. The applicant did not appeal against this decision.
In the meantime, on 3 May 2004, the applicant was transported to Sliven Prison.
On admission to Sliven Prison the applicant underwent a medical checkup. It was found that she was suffering from a viral infection and she was treated with antibiotics.
As the applicant apparently made a number of complaints relating to her state of health, in June 2004 the prison administration arranged for her to be transferred to the Sofia Prison hospital for tests. On 21 June 2004 the applicant was offered the opportunity to go to that hospital but refused.
However, some time later, on 1 July 2004, the applicant was admitted to the Sofia Prison hospital. She remained there until 20 July 2004. On 12 July 2004 a medical committee from the hospital informed the warden of Sliven Prison and the Sliven Regional Court that the applicant’s main ailment was a chronic hydronephrosis of the right kidney and that none of her other conditions required hospital treatment. They further noted that the applicant had refused to undergo tests which she had been offered in an outside hospital. Their conclusion was that the applicant’s conditions were not in an acute phase and did not require an urgent interruption of her sentence on medical grounds.
On 8 September 2004 the Sliven Regional Prosecutor’s Office turned down a request by the applicant for an interruption of her sentence.
On 16 November 2004 the applicant was examined by a urologist in a hospital in Sliven. He was of the opinion that surgery might be necessary if her kidney problems worsened.
On 23 November 2004 the applicant had a consultation with a psychiatrist.
In a decision of 24 November 2004 the Sliven Regional Prosecutor’s Office rejected another request by the applicant for an interruption of her sentence on medical grounds. The office stated, after having obtained the observations of the warden of Sliven Prison and a medical certificate, that the medical treatment required could be dispensed in the Sofia Prison hospital. It was thus unnecessary to release the applicant from custody.
On 28 January 2005 the applicant was transferred to a detention facility in Sofia, so as to be able to attend a hearing listed before the Sofia District Court. She remained in that facility until 9 February 2005. On admission she underwent a medical checkup. She informed the medical staff that she was suffering from bronchial asthma, arterial hypertonia, a valvular defect and hydronephrosis. She accordingly underwent three further checkups and was monitored throughout her stay in the facility. In view of the applicant’s stable condition the facility medical staff saw no need to refer her to an outside hospital.
On 22 February 2005 the applicant was sent for tests to a hospital in Sliven where she was allegedly given an injection.
It seems that on 23 February 2005 the applicant was admitted to the Sofia Prison hospital for treatment for an unspecified amount of time.
On 14 March 2005 the applicant was examined by a special medical committee for pulmonary diseases for the purpose of establishing the degree of her disability for pension purposes. The committee found that the applicant was suffering from asthma and chronic hydronephrosis, and concluded that she was 44% disabled. On 23 June 2005 the applicant was again examined by the central special medical committee for pulmonary diseases. In a decision of 30 June 2005 the commission reversed the other medical commission’s finding and established that the applicant was suffering from light to intermediate persistent bronchial asthma, a cyst on the left kidney, a cyst on the left ovary and a dissociative personality disorder, and concluded that she was 36% disabled. The commission recommended that the applicant refrain from hard physical labour and avoid damp or dusty spaces, as well as cold environments.
On 11 June 2005 the applicant and four other inmates, who were, like her, in group 7 (see below, paragraph 84 of the report of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment from their visit in Bulgaria in 2006), were not allowed to attend a play staged by a theatre company from Sofia for the inmates. The warden had based this decision on security considerations, after an incident which had taken place in the prison cinema a few days earlier, on 8 June 2005, and because the maximum number of persons who could attend the play was 220, whereas the total number of prisoners was 321.
On 26 July 2005 the applicant was examined by a cardiologist and prescribed medication.
On 7 October 2005 the Sliven Regional Military Prosecutor’s Office, after conducting an inquiry, rejected the applicant’s request to open a criminal investigation against members of the prison staff who had allegedly breached the law by not allowing her to attend the theatre play.
On 5 October 2005 the applicant asked to be admitted to the Sofia Prison hospital. This happened on 21 October 2005. On admission she complained of breathing difficulties and pain in the right lumbar area. She remained there until 26 October 2005 and was diagnosed with chronic nonobstructive bronchitis, bronchial asthma, high blood pressure, hydronephrosis, and neurosis with mood swings. She underwent urine and blood tests and several medical examinations. The conclusion of the doctors was that her overall state of health was satisfactory and that she could return to Sliven Prison as she had requested. They expressed the view that the real cause of her admission to hospital had to do with “nonmedical” issues and her behaviour was actuated by “her neurosis with mood swings”. According to Government, during her stay at the hospital the applicant had been rude to the medical staff and had refused to submit to certain medical tests. According to the applicant, there was no need for her to remain in the hospital any longer, as the doctors had refused to subject her to certain tests which she had considered important.
On 4 November 2005 the applicant was examined by a surgeon in Sliven who found that she had a verruca on her left thigh. He proposed removing it on the spot, but the applicant refused.
On 28 November 2005 the applicant was examined by a urologist. He apparently recommended that she undergo kidney surgery. He also suggested that she undergo a scintigraphy and an isotope nephrogram and noted that she had a polyallergy to contrasting matters. The Sliven Prison medical staff informed the applicant that the prescribed tests could be administered at the Sofia Prison hospital, but she refused to undergo such tests.
On an unspecified date in November or December 2005 the applicant requested an interruption of her sentence, citing the need to undergo kidney surgery and to have a mole removed. By a decision of 12 December 2005 the Sliven Regional Prosecutor’s Office refused the request, noting that, according to the opinion of the medical committee at Sliven Prison, the applicant could be treated in the Sofia Prison hospital, which obviated the need for such an interruption.
On 5 January 2006 the Sliven Regional Prosecutor’s Office turned down a further request for an interruption of the applicant’s sentence on medical grounds. It reasoned that the applicant had on numerous occasions been treated at prison hospitals in Sliven and in Sofia and that the necessary medical tests and treatment could be carried out at the Sofia Prison hospital. According to the opinion of the medical committee at Sliven Prison, there was no need to interrupt her sentence on medical grounds.
On 18 January 2006 the applicant was taken out of prison to be examined by a cardiologist in Sliven and undergo a electrocardiogram. The doctor who examined the applicant was of the opinion that she had to remain as an inpatient because of a worsening of her bronchitis. A hospital bed was made available, but the applicant refused to submit to treatment. However, she underwent an X-ray and laboratory tests.
On 2 March 2006 the Sliven Regional Military Prosecutor’s Office, after interviewing the applicant and taking note of a number of relevant medical documents, refused to open criminal proceedings pursuant to her allegations that the warden and medical staff of Sliven Prison were not doing what was necessary to preserve her health while she was in custody, and were understating her health problems in their letters to the competent prosecutor’s offices.
On 30 June 2006 the applicant was taken out of prison and examined by a cardiologist. She underwent a cardiogram and an echocardiography. It was found that she was suffering from arterial hypertonia. She was prescribed drug treatment whose costs were borne by the prison’s medical centre.
On 1 August 2006 the applicant was examined by a pulmonologist, as she had had a bronchial attack. She was prescribed medication, but refused to take it.
On 13 August 2006 a medical committee of the Sofia Prison hospital expressed the opinion that the applicant’s conditions were all chronic and could be treated with medication. None of them required urgent admission to a hospital. In particular, the problem with her right kidney had been stable for five years and there was no obvious need to remove the kidney. The commission further noted that on previous occasions the applicant had abused the interruptions of her sentence, and recommended that her request for a further interruption be turned down. She could be treated in the Sofia Prison hospital or as an outpatient in Sliven Prison.
In reply to a request for an interruption of the applicant’s sentence on medical grounds, on 25 September 2006 the head of the medical centre of the Sliven Prison expressed the opinion that it was possible to treat her in the prison hospital system or in the Sliven Regional hospital, if she expressed such a wish.
Between 15 December 2006 and 1 January 2007 the applicant was granted an interruption of her sentence for the purpose of medical treatment. It is unclear whether she in fact submitted to such treatment.
On 29 November 2007 the applicant was apparently examined by three urologists.
On 22 and 30 January 2008 the applicant was seen by a doctor in Sliven. He examined her lungs, found that she suffered from asthma, with attendant chronic obstructive pulmonary disease, and prescribed treatment with pills and inhalers.
It seems that during most of her stay in Sliven Prison after 2004, the applicant visited its medical centre at least once a week. The journal of the centre recorded fiftyfour such visits in 2005.
During 2004 and 2005 the applicant received disciplinary measures eight times and was cautioned more than twenty times, most often for rude and aggressive behaviour towards other inmates and prison staff.
Throughout the years the prosecution authorities opened a number of inquiries pursuant to complaints by the applicant against prison guards and other officials. However, each time they decided not to open criminal proceedings. Apparently the applicant did not appeal against these decisions.
From 2004 to 2006 the applicant apparently made several requests to have the 199396 criminal proceedings against her reopened, which were all turned down.
Under Article 425 § 3 of the 1974 Code of Criminal Procedure, a prison sentence can be interrupted if the inmate is suffering from a serious medical condition, until recovery. There is no reported caselaw clarifying what may be considered a “serious medical condition”.
Under Article 426 § 1 of the Code, in force until 1 January 2000, the authority competent to interrupt a sentence in all cases was the regional prosecutor. From that date until the end of April 2001 the regional prosecutor could only order an interruption of up to seven days. If the interruption was for a longer period, it could be ordered by the chairperson or a specifically authorised deputy chairperson of the appropriate regional court (Article 426 § 1 of the Code, as in force between 1 January 2000 and the end of April 2001). In April 2001 the Code was amended to provide that interruptions for periods longer than seven days could only be ordered by a panel of the appropriate regional court (Article 426 § 1 of the Code, as amended in April 2001). In May 2003 competence to order an interruption was again vested in the regional prosecutor, irrespective of the period of the interruption.
Under Article 447 § 3 of the 2005 Code of Criminal Procedure, which entered into force on 29 April 2006, a prison sentence may likewise be interrupted if the inmate is suffering from a serious medical condition, until he or she recovers.
The authority competent to interrupt a sentence is the regional prosecutor (Article 448 § 1 of the Code). This Code makes no provision for appeal to a court, which means that the prosecutor’s decision is subject to appeal before the higher prosecutor, whose decision is not subject to further appeal (Article 200 of the Code).
Under section 22(1) of this Act, as amended in 2002, medical treatment for inmates is provided, as a rule, by medical establishments attached to the Ministry of Justice (that is, the prison hospitals). Section 22(2) of the Act provides that if these medical establishments are not suitably equipped to provide certain kinds of treatment, prisoners are to be sent to other hospitals, but are to remain under the same regime, isolation or escort.
Recommendation No. R (98) 71 of the Committee of Ministers of 8 April 1998 concerning the ethical and organisational aspects of health care in prison, provides, in so far as relevant:
“A. Access to a doctor
1. When entering prison and later on while in custody, prisoners should be able at any time to have access to a doctor or a fully qualified nurse, irrespective of their detention regime and without undue delay, if required by their state of health. All detainees should benefit from appropriate medical examinations on admission. ...
2. In order to satisfy the health requirements of the inmates, doctors and qualified nurses should be available on a full-time basis in the large penal institutions, depending on the number and the turnover of inmates and their average state of health.
3. A prison’s health care service should at least be able to provide out-patient consultations and emergency treatment. When the state of health of the inmates requires treatment which cannot be guaranteed in prison, everything possible should be done to ensure that treatment is given, in all security, in health establishments outside the prison.
4. Prisoners should have access to a doctor, when necessary, at any time during the day and the night. Someone competent to provide first aid should always be present on the prison premises. In case of serious emergencies, the doctor, a member of the nursing staff and the prison management should be warned; active participation and commitment of the custodial staff is essential.
...
8. Where appropriate, specific services should be provided to female prisoners. ...
...
B. Equivalence of care
10. Health policy in custody should be integrated into, and compatible with, national health policy. A prison health care service should be able to provide medical, psychiatric and dental treatment and to implement programmes of hygiene and preventive medicine in conditions comparable to those enjoyed by the general public. Prison doctors should be able to call upon specialists. If a second opinion is required, it is the duty of the service to arrange it.
11. The prison health care service should have a sufficient number of qualified medical, nursing and technical staff, as well as appropriate premises, installations and equipment of a quality comparable, if not identical, to those which exist in the outside environment.
...
C. Persons unsuited to continued detention: serious physical handicap, advanced age, short term fatal prognosis
50. Prisoners with serious physical handicaps and those of advanced age should be accommodated in such a way as to allow as normal a life as possible and should not be segregated from the general prison population. Structural alterations should be effected to assist the wheelchair-bound and handicapped on lines similar to those in the outside environment.
51. The decision as to when patients subject to short term fatal prognosis should be transferred to outside hospital units should be taken on medical grounds. While awaiting such transfer, these patients should receive optimum nursing care during the terminal phase of their illness within the prison health care centre. In such cases provision should be made for periodic respite care in an outside hospice. The possibility of a pardon for medical reasons or early release should be examined.
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E. Refusal of treatment, hunger strike
60. In the case of refusal of treatment, the doctor should request a written statement signed by the patient in the presence of a witness. The doctor should give the patient full information as to the likely benefits of medication, possible therapeutic alternatives, and warn him/her about risks associated with his/her refusal. It should be ensured that the patient has a full understanding of his/her situation. ...”
In this report (CPT/Inf (2004) 21) the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“the CPT”) described in detail their findings from visits carried out by them in a number of detention facilities, including the facility where the applicant was brought on three occasions in February, March and April 2004.. The CPT’s findings in respect of this facility were as follows:
“...50. Material conditions at the investigation detention facility at “Major Vekilski” Street in Sofia were distinctly superior to those found elsewhere, and in many respects could serve as a model for the rest of the country. With an official capacity of 112, the facility was holding 82 detained persons (including 3 women). There were twenty-eight cells (measuring some 16 m²) designed to hold up to 4 persons each. Access to natural light, artificial lighting and ventilation were adequate. The cells were furnished with beds with full bedding and personal cupboards, and were neat and clean. All cells were equipped with a sanitary annexe (toilet and sink), screened by a waist-high wall. The corridor areas were monitored by closed circuit television cameras. ...”
In this report (CPT/Inf (2008) 11) the CPT described in detail their findings from visits carried out by them in a number of penitentiary establishments, including Sliven Prison and the Sofia Prison hospital, in September 2006. The CPT’s findings in respect of them, in so far as relevant, were as follows:
“... 83. Sliven Prison is the only penitentiary establishment for women in Bulgaria. It comprises a closed prison, set up in 1962 on the outskirts on the town of Sliven, a reformatory hostel for girls and a transitory-type prison hostel at the same location, and an open-type prison hostel “Ramanusha” some 10 km from Sliven (not visited by the delegation). With an official capacity of 320, on the first day of the visit the establishment was holding 373 prisoners, of whom 69 were women on remand, 243 were sentenced women held in the closed prison and the transitory facility, 48 were sentenced women accommodated in the opentype hostel, and 13 were sentenced men employed on maintenance jobs in the closed prison. The female prisoner population included 7 juveniles, 3 life-sentenced prisoners and 6 foreign prisoners.
84. Prisoners were distributed into 10 groups [including Group 7: lifers and other prisoners under special regime] in accordance with their legal status and regime. Prisoner accommodation was provided in the original three-storey building to which two wings had been added over the years, holding, inter alia, the reformatory hostel for girls (...) and the transitory-type hostel (...). Due to ongoing refurbishment works on one of the floors of the main building, there had been some reshuffling of prisoners which had resulted in overcrowding in certain of the cells. For example, in Group 4, five women were being held in a cell of some 14 m², and eight women in a cell of 19 m². In the unit for remand prisoners (Group 2), all the cells were overcrowded (e.g. cells of some 16 m² were accommodating five or six women). In Group 6, cells measuring some 7.5 m² were holding two prisoners each.
Access to natural light and ventilation were not a problem, due to the fact that all cells had large, unscreened windows. Artificial lighting was also adequate; however, the electricity supply was reportedly intermittent. The cell equipment (single beds and/or bunks, individual lockers, a table and stools) was generally in a good state, and the cells had a personal touch (curtains, small carpets on the wooden floors, plants, some decoration on the walls). Further, general hygiene was very good. However, the top floor of the main building (Groups 5 and 6) showed signs of disrepair (because of a leaking roof, there was mould on the walls).
85. There was no integral sanitation in any of the cells. During the day, prisoners could circulate around their units and access to a toilet was not a problem (each unit had a common sanitary facility). However, at night, low staffing levels resulted in delays or failure to provide access to toilets, and prisoners relied on buckets inside their cells. This is not acceptable; as already stressed (...), all prisoners should have access to toilets at all times. Given the special needs of women for ready access to sanitation during menstrual periods, this situation must be addressed as a matter of urgency.
86. As regards possibilities to maintain personal hygiene, the unit sanitary facilities (with showers, sinks and floor-level toilets) were somewhat dilapidated but clean. Some complaints were heard about the fact that all prisoners in a group had to use the washing facilities during the same limited period of time in the morning and evening, which resulted in conflicts. Hot water was provided for some 20 minutes in the evenings, during which time prisoners also washed their clothes and bed linen. Further, there was hot water for showering for one hour at the weekend. The lack of supply of personal hygiene products was reportedly a problem for some inmates (only the most destitute prisoners received help from donations); apparently, only washing powder and basic materials for women’s monthly needs were provided by the prison.
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89. The food appeared to be well prepared and very few complaints were heard about it. Meals were eaten in two dining rooms, with large windows providing a sense of space and light. The delegation was told of plans to refurbish the dining rooms in 2007.
The kitchen was scrupulously clean and well organised, despite the ageing equipment. Quantity, quality and hygiene control appeared to be functioning well.
90. The CPT recommends that steps be taken at Sliven Prison to:
– reduce cell occupancy rates to an acceptable level (a minimum of 4 m² per prisoner); cells measuring 7 m² should not accommodate more than one prisoner (save in exceptional circumstances when it would be inadvisable for a prisoner to be left alone);
– provide sufficient staffing levels at night to enable all prisoners to have ready access to a toilet around the clock;
– provide all inmates with basic hygiene products and seek ways to increase the time during which prisoners have access to hot water during the week;
– pursue the refurbishment programme, in particular on the top floor of the main prison building.
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92. Outdoor exercise of one hour per day was provided in various yards in the grounds of the prison. The large central garden and courtyard around which the main prisoner accommodation and educational facilities were situated provided generous space for exercise and recreation, although it appeared to lack shelter from inclement weather. The yard for juveniles and women from the transitory-type hostel had benches, trees and plants. However, the delegation observed that the time taken to escort prisoners to and from the workshops was counted as part of the outdoor exercise time. Whereas the escort time was undoubtedly spent in the open air, this should not be counted as part of the daily hour of exercise.
93. Some 45% of inmates in the closed prison had work at the time of the visit. Jobs were provided in a sewing workshop (49 prisoners), a workshop for cleaning household goods (34 prisoners) and a workshop for machine parts (21 prisoners), as well as on various tasks related to the upkeep of the prison (23 female prisoners and 13 male prisoners). Complaints regarding work mainly centred on the difficulty of filling the production quota; if the required total was not completed, the day did not count towards reduction of time served or there was a reduction in pay.
94. The prison had a wellequipped school with a good range of educational facilities and courses. This was important given the estimated need for education, including the 40% illiteracy of the female sentenced population. 82 prisoners were enrolled at the beginning of the new school year. The school also had a computer room and offered vocational training classes as preparation for work in the sewing workshop. Additional vocational training courses (for hairdressers, chefs, pastry-cooks, beekeepers) were organised periodically, when there were sponsors.
The prerelease programme included a job club providing individual and group preparation for life after release, using outside trainers.
95. As regards other activities, the prison had a library with some 16,000 books. The selection of books appeared to be varied; each group had a day for visiting the library for about one hour and prisoners could take out as many books as they wanted. Further, there was a large multi-functional hall where concerts and cinema projections took place, a video club, and a room on each unit where prisoners could watch TV in the evenings. An attractive chapel had been set up, using profits from the prison production and donations, and a part-time post for a priest was being funded from the Ministry of Justice budget.
The gym appeared to be the least used facility. It was sufficiently large for basketball games, but was in need of repair. The delegation was told that adult prisoners had access to the gym for one hour per week; however, this was not confirmed by many prisoners with whom the delegation spoke.
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97. To sum up, the management team was making strenuous efforts to involve as many prisoners as possible in a variety of activities. The CPT welcomes these efforts and encourages the management of Sliven Prison to continue its efforts to engage more prisoners in work and other purposeful activities. The Committee also invites the prison management to increase the use of the gym and to provide the exercise yards with shelters from inclement weather.
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At the time of the visit, health care at Sliven Prison was provided by a feldsher, a dentist and a parttime gynaecologist; further, a paediatrician periodically visited the creche. The post of director of the prison’s medical centre had been vacant for several months, following the retirement of the GP who used to fill that post. The delegation was informed that the recruitment of a new medical director was being blocked pending the adoption of legislative amendments. There was also a psychiatrist’s post which had been vacant since 2004; as a result, psychiatric care was provided by outside specialists. No qualified healthcare staff were present at night and during weekends.
107. The above-mentioned staff resources were clearly insufficient and had resulted in major failings in the health-care provision at both prisons. Health-care staff were overburdened and failed to provide the requisite food and general hygiene control. Further, the absence of nursing staff led to unacceptable situations, such as the use of prison officers or prisoners working as orderlies for the distribution of medication. At Sliven Prison in particular, the lack of a doctor placed an overwhelming burden on the feldsher (who was doing her best in very difficult circumstances) and resulted, inter alia, in an increased number of referrals to outside consultations.
As mentioned in paragraph 7, at the end of the visit the delegation made an immediate observation under Article 8, paragraph 5, of the Convention, requesting the Bulgarian authorities to take urgent action to ensure that a doctor was employed full time at Sliven Prison. In their letter of 13 December 2006, the Bulgarian authorities indicated that the procedure for the selection of candidates for the vacant post was ongoing.
The CPT recommends that urgent steps be taken to reinforce the health-care resources at Sofia and Sliven Prisons, and in particular to:
– immediately fill the post of doctor at Sliven Prison;
– fill the post of psychiatrist at Sliven Prison;
– appoint one more general practitioner as well as a psychiatrist at Sofia Prison;
– ensure that both establishments have a sufficient number of nursing staff - as a first measure, immediate action is required to appoint at least two full-time qualified nurses at Sofia Prison and at least one at Sliven Prison;
– ensure that someone qualified to provide first aid, preferably with a recognised nursing qualification, is always present on the premises on Sliven Prison, including at night and weekends;
...
108. There appeared to be delays as regards transferring inmates for treatment to hospital facilities and access to medical specialists outside the penitentiary system. The procedure for transferring inmates from prisons other than Sofia and Lovech to the two prison hospitals involved a recommendation by the prison doctor which had to be approved first by the prison director and then by the medical division of the General Directorate for the Execution of Sentences, following which the prison had to organise transportation. A random examination of medical files revealed that this chain of administrative decisions could take quite a long time (up to 3 months). The CPT would like to receive the comments of the Bulgarian authorities on this question.
...
109. Medical examination on admission generally took place on the day of arrival or the following day, but there were a few isolated cases of delays of several days, undoubtedly a reflection of the meagre staff resources. Further, during the month spent in the reception unit, newly arrived prisoners underwent a number of examinations (including of suicidal risk).
As regards screening for transmissible diseases, it varied from one prison to another. At Sliven Prison, newly arrived prisoners were screened on admission for syphilis and HIV; the delegation was told that prisoners verbally gave consent to HIV testing. At Sofia Prison, screening for HIV was carried out by an NGO on a voluntary basis. As regards screening for tuberculosis, a mobile X-ray unit visited the prisons once a year and all prisoners were screened. There was no screening for hepatitis at either prison.
The CPT recommends that measures be taken to ensure that all newly arrived prisoners are seen by a healthcare staff member within 24 hours of their arrival. The medical examination on admission should be comprehensive, including appropriate screening for transmissible diseases. Further, prisoners should be provided with counselling before (and, in the case of a positive result, after) any screening test as well as with information concerning the prevention of transmissible diseases.
...
111. The CPT remains concerned about the handling of medical data. All inmates had individual medical files; however, the delegation observed that the medical information contained in them was far from being comprehensive. Further, the confidentiality of medical examinations was not always observed, nonmedical prison staff often being present during such examinations.
The CPT recommends that steps be taken to ensure that:
– prisoners’ individual medical files are properly kept and prisoners are entitled to receive copies of medical documents;
– all medical examinations are conducted out of the hearing and – unless the doctor concerned expressly requests otherwise in a particular case – out of the sight of non-medical prison staff and law enforcement officials;
...
113. More generally, it would appear that the difficulties in recruiting medical specialists to work in prisons and the other related failings referred to above are part of the wider problem that prison health care is not integrated into the national health-care system. This results in a failure to comply with the principle of “equivalence of care”, according to which prisoners should benefit from the same level of medical care as persons living in the community at large.
During the visit, the delegation received a copy of a draft Ordinance on prison healthcare prepared by a joint working group from the Ministries of Justice and Health, which addresses many of the problematic areas mentioned above. In particular, it establishes the principles of equivalence of care and doctors’ professional independence. Other provisions concern the supply of free-of-charge medication to prisoners and the Ministry of Health’s responsibility for providing methodological guidance to and control of health care in prisons. As regards screening for HIV, the WHO recommendations concerning confidentiality, informed consent and pre- and post-test counselling are to be observed. The Ordinance also stipulates that whenever signs of violence are observed, health-care staff should immediately notify the prison director and issue a medical certificate; however, as regards the contents of the latter, reference is only made to a detailed description of the injuries observed (in this context, see the recommendations [made earlier in the report]).
Pursuant to Section 7 of the Ordinance, prisoners with medical training who have not been deprived of the right to practise can be employed in their speciality under the supervision of a medical member of staff. The CPT has already expressed in the past its concern about the employment of inmates as orderlies (see paragraph 102 of CPT/Inf (2004) 21); the same goes for the employment of prisoners on other health-care related jobs. As a matter of principle, prisoners should not be put in a position to exercise control over other prisoners.
The CPT recommends that the Bulgarian authorities take into consideration the comments and recommendations made in this report in the new regulations on the provision of health care to prisoners. More generally, the Committee invites the Bulgarian authorities to review their strategy for implementing healthcare policy in prisons with a view to ensuring harmonisation with the national health-care system and respect of the principles of equivalence of care and professional independence.
114. The prison hospital at Sofia Prison had three wards: surgery, internal medicine and neuropsychiatry; in addition, there was a section for female prisoners and an area for infectious diseases. At the time of the visit, 40 prisoners were being treated at the hospital; the delegation was informed that, on average, 60 to 70 prisoners were hospitalised on any given day. The hospital also performed outpatient consultations of prisoners from Sofia Prison.
115. Living space in the patients’ rooms was satisfactory (e.g. five prisoners in a room measuring some 30 m², including a sanitary annexe). The rooms had good access to natural light, artificial lighting and ventilation; however, they were in a rather poor state of repair and cleanliness.
As for the medical equipment, it was antiquated. The hospital urgently needed new equipment, in particular for Xrays, Doppler ultrasound scans and endoscopy, as well as surgical instruments.
The CPT recommends that steps be taken at Sofia Prison Hospital to:
– substantially upgrade the medical equipment;
– improve the state of repair and the level of hygiene in patients’ rooms.
116. Although there were practically no unfilled posts, the delegation was informed that the hospital needed an additional 6 nurses, 4 GPs and an urologist; however, there was no budget for hiring more staff. The CPT would like to receive the comments on the Bulgarian authorities on this issue. ...”


ITEMID: 001-105326
LANGUAGEISOCODE: ENG
RESPONDENT: ITA
BRANCH: ADMISSIBILITY
DATE: 2011
DOCNAME: CELANO AND OTHERS v. ITALY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: András Sajó;David Thór Björgvinsson;Françoise Tulkens;Guido Raimondi
TEXT: The applicants (see attached table) are Italian nationals. They are represented before the Court by Mr M. de Stefano, a lawyer practising in Rome. The Italian Government (“the Government”) were represented by their Agent Ms E. Spatafora, and their Co-Agent, Ms P. Accardo.
The applicants are all graduates in medicine and surgery. They have been undergoing a specialisation course “medici in formazione specialistica/ medici specializzandi”, on a scholarship for a number of years at the University of La Sapienza in Rome.
The details about the applicants’ registration dates and the length of their courses can be found in the attached table.
In accordance with section 39 of legislative decree no. 368 of 17 August 1999 (“Law no. 368”), they have been receiving remuneration of approximately 11,000 euros (EUR) per year for their academic work and practical work in hospitals. This amount remained the same throughout their years of service until 2006, notwithstanding that originally the law provided for adjustment according to inflation and a tri-annual revision. The latter had to be in accordance with a yet-to-be-enacted law on budget allocation (section 46 of Law no. 368) which was never enacted. Moreover, pay rises provided by the ordinary law had been blocked by the Government by means of various legal provisions. It was only through the “legge finanziaria” of 2006 that these pay rises were provided for, but only to take effect from the year 2006-2007. As a consequence the applicants, up to the year 2006, allegedly lost approximately 40-50% of what their salaries would have been if adjusted.
During their service the applicants were not covered by an obligatory insurance and were not registered with the Istituto Nazionale della Previdenza Sociale (“INPS”), an Italian welfare entity, the latter notwithstanding that they claimed that their right to registration and cover by INPS had been provided for by Law no. 368 and was to be managed by the University. The provisions applicable to a contract of work-training (formazione-lavoro) (see section 37 (1) of Law no. 368) were section 3 (6) of Law no. 726 of 1984 as amended by Law no. 863 of the same year and section 41 of Law no. 368, which expressly provided for the payment of contributions. Social security cover was also due to medici specializzandi as transpired from section 37 (6) of Law no. 368 (see Relevant domestic law for legal texts).
According to section 46 of Law no. 368, such social security cover would enter into force upon the enactment of the apposite legal provisions on budget allocation. However, for several years after the applicants took up their functions the relevant provisions were not enacted. Thus, they remained without social security cover for the entire period of service or up to 2006.
In 2006 by means of the “legge finanziaria”, Law no. 368 was amended, in that medici specializzandi were to be governed by contracts of specialist training “di formazione specialistica” and no longer contracts of work-training. This law expressly provided for the registration with the INPS of medici specializzandi, under the provisions applicable to all categories of self-employed. Section 41 of Law no. 368 was amended accordingly (see Relevant domestic law). However, social security cover for the medici specializzandi was provided for only with effect from the year 2006-2007. Thus, the applicants remained excluded from such benefits entirely or up to the said year, respectively.
On 11 April 2005 the first three applicants (application no. 14830/07) and another seventy-three individuals in their position instituted proceedings before the Rome Labour Court claiming that they had been denied social security cover and “salary” adjustments as a result of the failure to enact the law containing the relevant budgetary provisions. Such an omission was also contrary to EU regulations on the matter.
By a judgment of 27 September 2006 filed with the relevant registry on 2 October 2006 their claims were rejected. The Rome Labour Court considered of relevance only the legislation in force at the time and not subsequent legislation. Distinguishing between medici in formazione specialistica and “medico strutturato”, it held that the relevant EU directive (Council Directive 93/16/EEC of 5 April 1993 to facilitate the free movement of doctors and the mutual recognition of their diplomas, certificates and other evidence of formal qualifications) left issues related to medici in formazione specialistica in a lacuna, the directive concentrating on reciprocal recognition of qualifications, freedom of movement of the profession and the coordination between States of the exercise of the medical profession. In particular, it did not provide specific criteria in relation to the principle of “appropriate remuneration”. In consequence it could not be said that the EU directive created a right in respect of specific salaries for medici in formazione specialistica. Neither was it possible to derive that right from sections 37 and 38 of Law no. 368, which aimed to transpose the said directive into national law. The limited time during which these provisions were in force before they were suspended by the same measures also suspending sections 39 and 41 did not allow for the creation of a substantive and actionable right on the part of the applicants. The stipulation of a contract of “annual training” could not allow medici specializzandi to acquire a right to remuneration adjustment and social security cover as provided in sections 39 and 41 of the said law which was suspended by express statutory norms, until the enactment of budgetary provisions. Neither did it appear that in the short time (a bit more than two months) before the latter suspension, the relevant decree “Decreto del Presidente del Consiglio dei Ministri” (DPCM), which would have defined the work-training contract’s scheme, had been adopted. Without this there could not be any activation of the norm. It follows that in the absence of the DPCM and relevant budgetary provisions, the failure of universities to stipulate “work-training” contracts could not give rise to any consequences, since Articles 37, 39 and 41 of the said law never became operational.
An appeal is still pending. However, the first, second and third applicants claim that in view of current jurisprudence (see relevant domestic law) it is unlikely that such proceedings will be successful. Similarly, all the remaining applicants have not undertaken any domestic proceedings for the same reasons.
In so far as relevant, the sections at issue read as follows:
Section 37
“1) On registration at the universities specialising in medicine and surgery, a doctor enters into a specific annual contract of work-training (formazione-lavoro), as provided for by this decree and the norms in force in this respect, in so far as there may be lacunae and in so far as compatible with the provisions of the present decree. A contract becomes binding exclusively on the achievement of the professional competencies inherent for the title of specialist, by the carrying out of formal didactic and assisting activities relevant to the achievement of the competencies provided by the academic regulations of the relevant schools in accordance with European Union guidelines. This contract does not guarantee access to roles in the National Health Service or the University or to any employment relations with such entities.
(2) The scheme type of the contract is defined by a decree “Decreto del Presidente del Consiglio dei Ministri” (“DPCM”) [...]
(4) The annual contract is renewable each year for a total of years equal to the duration of the specialisation course.
(6) In the event of early cancellation of a contract, the doctor has the right to receive the remuneration accumulated to the date of the cancellation and to benefit from the contributions relevant to the working period.”
Section 39 (2)
“The remuneration is determined, every three years, according to the decree mentioned in Article 35 (1), in so far as may be permitted by the funds provided for by section 6 (2) of Law no. 428 of 29 December 1990 (re funds allocated for the implementation of EU directives) and the quotas of the national health fund intended for this purpose.”
Section 41
“(1) The remuneration is subject to the provisions of Article 4 of Law no. 476 of 13 August 1984 (scholarships are exempt from income tax).
(2) For welfare purposes, the employers’ contribution is 75% of the ordinary contribution for the health sector, which may be re-determined by ministerial decree [...], in accordance with the evolution of the welfare treatment of work-training contracts.”
Section 41 (2) as amended by the “legge finanziaria” 2005
“With effect from the academic year 2006-2007, contracts of specialist training are to be governed by ... [relevant provisions].”
Section 46
“(1) Any financial burdens arising from Title V of the said decree are to be covered by the resources provided for in .... [relevant law], the quotas of the national health fund due for the training of specialised doctors and any other resources made available by the apposite legislative provisions.
(2) Sections 39 and 41 will apply on the entry into force of the provisions mentioned in sub article 1; till then sections 6 of Law no. 257 of 8 August 1991 remains applicable.”
Sub-section (2) is a result of an amendment by section 8 (3) of Law no. 517 of 1999. In so far as relevant, section 6 of Law no. 257 of 8 August 1991, regarding scholarships, reads as follows:
“(1) Persons admitted to specialised schools as defined by the programme referred to in section 2 (2) in relation to full-time service, are entitled, for the entire duration of their course save any suspension periods, to a scholarship amounting to 21,500,000 Italian lire as determined for the year 1991. This amount is to be, as from 1 January 1992, annually increased by the rate of inflation and must be re-determined every three years by ministerial decree, in accordance with the minimum established salary improvements provided for by collective bargaining in respect of the medical staff employed by the National Health Service.
(2) The scholarship is to be paid by rate every two months, by the relevant specialised school as recognised in terms of section 7. In respect of persons who have not successfully passed their annual examination by the end of the autumn session, the payment of the scholarship shall cease from the start of the month following their definite failure to succeed the examination.
(3) Division and allocation of funds as established by Law no. 428 of 29 December 1990 is to be provided for by ministerial decree on the basis of the decree referred to in section 2 (2).
(4) (Provision related to foreign students)
(5) Section 6 (2) of Law no. 428 of 29 December 1990 (re funds allocated for the implementation of EU directives) shall apply.”
However, the increments provided for by section 6 of Law no. 257 of 8 August 1991 were blocked by a series of legislative decrees and by-laws, dated 1992, 1995 and 2002.
At the relevant time a work-training contract was governed by the provisions of section 3 (6) of legislative decree no. 726 of 1984, as amended by Law no. 863 of 1984, which read as follows:
“For persons employed under a work-training contract, the employers’ contribution is a fixed rate corresponding to that for apprentices according to Law no. 25 of 19 January 1955 and its successive amendments, bearing in mind the employees’ contribution as provided for the majority of employees.”
The relevant amendment provided for a reduction in the welfare contributions vis-à-vis that of normal subordinate employees, equating it to that of apprentices.
In the judgment Commission v. Italy, case 49/86 of 7 July 1987, the European Court of Justice (“the ECJ”) held that Italy had failed to transpose the relevant directives in so far as it had failed to provide for “appropriate remuneration” of medici in formazione specialistica.
Subsequently, in 1990 the relevant directives were transposed into Italian law, namely Law no. 428 of 1990 (see above), which provided for the detailed conditions relevant to funding in the sector. Its section 6 (2) provided that adjustments should be integrated annually.
According to section 6 of Law no. 257 of August 1991 (see above) the scholarship amounted to EUR 11,000 per year, it was to be annually increased by the inflation rate and re-determined triennially, by ministerial decree, in accordance with the minimum established salary increases provided by the collective bargaining of the National Health Service’s medical staff. Subsequently, this was amended by Law no. 368 of 17 August 1999, sections 37-38 (see above). By Law no. 266 of 23 December 2005 (“legge finanziaria”) scholarship awards were raised and social security cover was introduced as from 1 November 2006.
Up to the enactment of the relevant budgetary provisions in accordance with Law no. 368, the law applicable in relation to budgetary adjustments was section 6 of Law no. 257 of 8 August 1991. However, by means of a series of legislative measures, the possibility of such pay rises had been blocked.
In this respect the Constitutional Court judgment of 23 December 1997 – Bartolomei c. Univ. studi Genova e altri – held that the legislative blocking of automatic adjustment of scholarships for medici specializzandi had been legitimate. The measures adapted the plaintiff’s situation to a common principle present in the public and private sector, namely the counteraction of the increase in the cost of living by contractual flexibility. Thus, the exceptional exclusion of scholarships from adjustments according to the rate of inflation, for a limited period of time, was not unreasonable or discriminatory. It was part and parcel of a complex group of norms in the health sector aiming to impede, for the same period of time, all pay rises arising from automatic salary increments.
The Council Directive 93/16/EEC of 5 April 1993 to facilitate the free movement of doctors and the mutual recognition of their diplomas, certificates and other evidence of formal qualifications, in so far as relevant, reads as follows:
Article 24
1. Member States shall ensure that the training leading to a diploma, certificate or other evidence of formal qualifications in specialised medicine, meets the following requirements at least:
(a) it shall entail the successful completion of six years’ study within the framework of the training course referred to in Article 23, (...)
(b) it shall comprise theoretical and practical instruction;
(c) it shall be a full-time course supervised by the competent authorities or bodies pursuant to point 1 of Annex I;
(d) it shall be in a university centre, in a teaching hospital or, where appropriate, in a health establishment approved for this purpose by the competent authorities or bodies;
(e) it shall involve the personal participation of the doctor training to be a specialist in the activity and in the responsibilities of the establishments concerned.
ANNEX I - Characteristics of the full-time and part-time training of specialists as referred to in Articles 24 (1) (c) and 25
1. Full-time training of specialists
Such training shall be carried out in specific posts recognized by the competent authority.
It shall involve participation in all the medical activities of the department where the training is carried out, including on-call duties, so that the trainee specialist devotes to this practical and theoretical training all his professional activity throughout the duration of the standard working week and throughout the year according to provisions agreed by the competent authorities. Accordingly these posts shall be subject to appropriate remuneration.
2. Part-time training of specialists
(...) Appropriate remuneration shall consequently be attached to such part-time training.
In relation to the matter at issue in the present applications, the Milan Labour Court held that Law no. 368, in so far as it stipulated an annual contract of training, was not operative at the relevant time, it having become so only in 2006/2007 by means of the legge finanziaria. The application of section 37 of the said law had been suspended by means of section 8 (3) of Law no. 517 of 1999. The latter provision amended section 46 of Law no. 368, establishing that its provisions will apply only on the entry into force of legislative budgetary measures (which before 2005 had not been introduced). Up to that future date, Law no. 257 of 1991 was applicable, which provided for the payment of a scholarship for medici specializzandi. It held that, as acknowledged by the ECJ, the relevant EU Directive did not indicate a definition of appropriate remuneration, nor did it establish criteria for the calculation of such remuneration. Thus, there was no unconditional obligation on the State in this respect. Moreover, the said directive did not oblige member States to stipulate contracts of subordinate work with specialising doctors, as the same objective could be achieved by means of other forms of contract and the relevant remuneration through different methods. In consequence, national law was not in contradiction with the EU directive.
The plaintiffs were covered by Law no. 257 and as previously stated by the Constitutional Court the functions undertaken by medici specializzandi did not constitute subordinate labour.
As to the adjustments of the scholarship award (section 6 of Law no. 257) Law no. 384 of 1992 and successive laws blocked any adjustments. This matter had been examined by the Constitutional Court - judgment of 23 December 1997 – Bartolomei c. Univ. studi Genova e altri, which found it to be legitimate (see above).
In relation to the same subject matter at issue in the present applications, the Messina Labour Court rejected the complaints on the basis that the EU directive was generic as to what constituted appropriate remuneration. Moreover, such rights could not have arisen from domestic constitutional criteria, as the function at issue did not equate to subordinate labour, it being a different relationship connected to training.
In relation to the same subject matter at issue in the present applications, the Court of Cassation rejected the claims of the medici specializzandi for adjustment of their remuneration for the period between 1998 and 2002.
In relation to the same subject matter at issue in the present applications, the Perugia Tribunal found in favour of the plaintiffs in the applicants’ position.
In relation to the same subject matter at issue in the present applications, the Turin Tribunal found in favour of the plaintiffs in the applicants’ position. It noted that the Constitutional Court judgment of 23 December 1997 had held that the exceptional exclusion of scholarships from adjustments according to the rate of inflation was not unreasonable or discriminatory, only on the basis that it had been in place for a limited period of time. This was not so in the present case.


ITEMID: 001-57963
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: CHAMBER
DATE: 1995
DOCNAME: CASE OF PRAMSTALLER v. AUSTRIA
IMPORTANCE: 2
CONCLUSION: Violation of Art. 6-1 (access);Not necessary to examine Art. 6-1 (publicly);Damage - finding of violation sufficient;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings
JUDGES: John Freeland
TEXT: 8. Mr Johann Pramstaller lives at Debant, near Lienz.
9. On 17 March 1987 Nußdorf-Debant municipal council granted Mr Pramstaller planning permission for the construction of new commercial premises, subject to various detailed conditions: two groceries should be built, each with appropriate commercial and sanitary amenities and separate entrances; and a dividing wall was to be erected between the two shops.
At a later stage the applicant informed the council that he was envisaging opening a supermarket on the premises, whereupon the council drew his attention to the specifications in the planning permission, which allowed only for two different smaller shops to be built, with separate entrances and divided by a party wall. They further warned the applicant that failure to comply with these specifications would result in the works being immediately halted.
10. On 23 July 1987 the council ordered the applicant to suspend the works. An inspection of the site had shown that, contrary to the terms of the planning permission, only one larger shop was being built instead of the two smaller ones. The applicant had thus disregarded several conditions of the planning permission.
11. On 10 November 1987 the Lienz district authority (Bezirkshauptmannschaft) served a "sentence order" (Straferkenntnis) on the applicant pursuant to sections 53(1)(a) and 53(2) of the Tyrol Building Regulations Act (Tiroler Bauordnung - see paragraph 15 below). According to the order, it had been established that the applicant had not only failed to erect the party wall as well as certain amenities, but had also opened an additional entrance, considerably enlarged the premises, built an additional wall and created one large shop instead of the two smaller ones originally planned. In so doing, the applicant had carried out works without planning permission.
Mr Pramstaller was ordered to pay a fine of 50,000 Austrian schillings (ATS) with fifty days' imprisonment in default of payment, plus costs. An appeal by him to the Tyrol regional government (Amt der Landesregierung) was dismissed on 22 March 1988 on the ground, among others, that the works carried out by the applicant not only failed to comply with the permission granted but were in part illegal.
12. Mr Pramstaller then applied to the Constitutional Court (Verfassungsgerichtshof), alleging, inter alia, a violation of Article 6 (art. 6) of the Convention in that he had not been able to bring his case, or have an oral hearing held, before a tribunal which conformed with that provision (art. 6). On 16 September 1988 the Constitutional Court declined to accept the case for adjudication under Article 144 para. 2 of the Federal Constitution (Bundes- Verfassungsgesetz - see paragraph 18 below) as raising questions concerning the application of ordinary law (einfaches Gesetz); in so far as the complaint did raise issues of constitutional law, the Constitutional Court found that the application did not have sufficient prospects of success.
13. The applicant then requested to have his case transferred to the Administrative Court (Verwaltungsgerichtshof), with which grounds of appeal against the administrative authorities' decision were subsequently lodged.
14. On 14 September 1989 the applicant's appeal was dismissed by the Administrative Court pursuant to section 42(1) of the Administrative Court Act (Verwaltungsgerichtshofsgesetz - see paragraph 22 below). With regard to the complaints concerning Article 6 (art. 6) of the Convention, the court pointed out that the Administrative Criminal Justice Act (Verwaltungsstrafgesetz) did not confer a general right to a hearing before the administrative authorities. Only in special circumstances was a hearing to be held.
The Administrative Court then dealt with the remaining complaints as follows:
"The applicant further submitted that the impugned decision dealt only with the obligation, noted in the decision at first instance, to obtain permission not to erect the dividing wall, and not with the obligation to obtain permission for the other - in his view minimal - failures to comply with the plan. But as, he maintained, the question whether these other failures to comply with the plan might lead to the applicant's being punished was of importance if the failure to erect the wall was not punishable, the reasoning was inadequate. This submission is inaccurate, because the respondent authority did in fact, as it was entitled to do, take it for granted that planning permission was necessary for all the measures mentioned in the original decision. The major building works undertaken by the applicant were, as the file shows, not covered by permission from the planning authorities. There was also clearly a consistent intention to go ahead and build in disregard of the planning regulations. The applicant further overlooks that, quite apart from the principle that planning permission was necessary for such a building project, permission could never have been given for a shopping centre such as was built in the instant case, having regard to the provision in section 16(b) of the Tyrol Town and Country Planning Act, which was declared constitutional by the Constitutional Court in a decision (B 816/86) of 2 March 1988.
During the planning-application proceedings Mr Pramstaller acted as the applicant for planning permission and as the owner of the land and the building on it. The [Z.] firm put itself forward as the future user of the building. The applicant never disputed during the administrative criminal proceedings that he was the person for whom the building was being constructed and that he was thus liable in administrative criminal law. His submission that the dividing wall was not built not on his orders but on those of the [Z.] firm that was using the commercial premises can therefore not exonerate him as he bore the responsibility for accepting and carrying out the orders of the future occupier. The suggestion set out for the first time in the statement of facts in the supplementary application that the building was being constructed for another firm is a new submission that is inadmissible in administrative proceedings by virtue of section 41(1) of the Administrative Court Act.
It was further submitted that the suspension of the building works that had been ordered had made it impossible to erect the dividing wall, although this could have been done without substantial expenditure even after the building work had stopped, so that there had been no negligence.
This submission likewise cannot assist the applicant. As the evidence and the applicant's submission clearly show, there had been no intention to build the dividing wall even before building work was suspended; on the contrary, the applicant deliberately refrained from doing so in order to secure a review of section 16(b) of the Tyrol Town and Country Planning Act by the Constitutional Court. Furthermore, at the time when the building works were suspended, there were other important failures to comply with the planning permission for which approval would have been needed (see in the statement of facts the details of the findings made by the authority on 6 July 1987 during an inspection of the works). The subsequent suspension of building work is accordingly of no legal significance in the present context.
The respondent authority also rightly noted that the very fact of the repeatedly expressed intention not to erect the dividing wall and to maintain the building in issue in a state that did not comply with the planning permission and for which no approval had been given showed that there had been culpable intent. Similarly, as the respondent authority rightly recognised, the theoretical possibility that the Constitutional Court might declare section 16(b) of the Tyrol Town and Country Planning Act unconstitutional cannot be prayed in aid as a mitigating circumstance. Contrary to the applicant's submissions, this purpose could have been achieved other than through failing to comply with the planning permission by not erecting the dividing wall and carrying out unauthorised works. It was open to the applicant at the outset to make an application for planning permission to build large-scale commercial premises, a shopping centre, and in this way challenge section 16(b) of the Tyrol Town and Country Planning Act in the Constitutional Court. The submission on this point therefore fails.
As to the submission that, contrary to what was stated in the impugned decision, the authority (municipal council) had agreed to the dividing wall not being built after a report had been made by a fire-safety expert, the applicant is referred to the evidence given by the chairman of the municipal council and to the note for the file made by him on the day of the meeting, from which it is quite clear that there was disagreement between the participants over the question whether authorisation was needed not to build the dividing wall and that the applicant was expressly warned by the municipal council that under section 31 of the Tyrol Building Regulations Act read together with section 16(b) of the Tyrol Town and Country Planning Act, a building scheme that was altered in this way could not be authorised. The applicant is mistaken in suggesting that the statement made by the legal representative of the [Z.] firm, who was also present at the meeting, constitutes a ground for excluding his guilt. From the observations filed by counsel for the applicant on the evidence given by the chairman of the municipal council it appears that the whole question of suspending the building works and the issue of the constitutionality of section 16(b) of the Tyrol Town and Country Planning Act were discussed and the possibility of challenging that provision in the Constitutional Court envisaged. The municipal council was allegedly made aware of this 'outcome of the negotiations'. The applicant himself, however, states in his application that there was disagreement among those taking part in the discussions as to the question of the need for authorisation not to build the dividing wall, with the municipal council assuming that such authorisation was necessary whereas the representative of the [Z.] firm assumed it was sufficient merely to report the fact. The applicant thus himself admits that, contrary to later statements in the application and in the observations on the evidence given by the chairman of the municipal council, no agreement was reached between the municipal council and the applicant, so that the assumption that there was a ground here for excluding the applicant's guilt is invalid on this ground alone. Nor can the Administrative Court find that the respondent authority committed any significant procedural irregularities in this respect in the reasons given for the impugned decision. The submission on this point is accordingly unfounded.
The respondent authority dealt at length and accurately with the grounds for the assessment of punishment and with the assessment of punishment in general, so that it cannot be criticised in this respect either.
..."
15. Section 53(1)(a) of the Tyrol Building Regulations Act (Tiroler Landesbauordnung) 1978 provides:
"It shall be an administrative offence (Verwaltungsübertretung)
(a) to carry out without planning permission a building project that requires planning permission ..."
Section 53(2) provides:
"The administrative offences set out in paragraph 1 shall be punishable with a fine not exceeding ATS 100,000 or with imprisonment for up to three months ..."
16. Section 25 of the same Act provides:
"The authorities' permission is required in the following cases:
(a) new building, extensions and conversions; and
(b) alterations to buildings or parts of buildings in so far as they affect the building's structural soundness, its safety in the event of fire, its plumbing or its external aspect ..."
17. Article 90 para. 1 of the Federal Constitution (Bundes-Verfassungsgesetz) provides:
"Hearings by trial courts in civil and criminal cases shall be oral and public. Exceptions may be prescribed by law."
18. By Article 144 para. 1 of the Federal Constitution, the Constitutional Court, when an application (Beschwerde) is made to it, has to determine whether an administrative decision (Bescheid) has infringed a right guaranteed by the Constitution or has applied regulations (Verordnung) contrary to the law, a law contrary to the Constitution or an international treaty incompatible with Austrian law.
Article 144 para. 2 provides:
"Up to the time of the hearing the Constitutional Court may by means of a decision (Beschluß) decline to accept a case for adjudication if it does not have sufficient prospects of success or if it cannot be expected that the judgment will clarify an issue of constitutional law. The court may not decline to accept for adjudication a case excluded from the jurisdiction of the Administrative Court by Article 133."
19. By Article 130 para. 1 of the Federal Constitution, the Administrative Court has jurisdiction to hear, inter alia, applications alleging that an administrative decision is unlawful.
20. Section 39(1) of the Administrative Court Act provides that at the end of the preliminary proceedings (Vorverfahren) the Administrative Court must hold a hearing where the applicant makes a request to that effect.
Section 39(2) reads as follows:
"Notwithstanding a party's application under subsection (1), the Administrative Court may decide not to hold a hearing where
1. the proceedings must be stayed (section 33) or the application dismissed (section 34);
2. the impugned decision must be quashed as unlawful because the respondent authority lacked jurisdiction (section 42(2)(2));
3. the impugned decision must be quashed as unlawful on account of a breach of procedural rules (section 42(2)(3));
4. the impugned decision must be quashed because its content is unlawful according to the established case-law of the Administrative Court;
5. neither the respondent authority nor any other party before the court has filed pleadings in reply and the impugned decision is to be quashed;
6. it is apparent to the court from the pleadings of the parties to the proceedings before it and from the files relating to the earlier administrative proceedings that a hearing is not likely to clarify the case further."
Sub-paragraphs 1 to 3 of section 39(2) were in force in 1958; sub-paragraphs 4 and 5 were inserted in 1964 and sub-paragraph 6 in 1982.
21. Section 41(1) of the Administrative Court Act provides:
"In so far as the Administrative Court does not find any unlawfulness deriving from the respondent authority's lack of jurisdiction or from breaches of procedural rules (section 42(2)(2) and (3)) ..., it must examine the impugned decision on the basis of the facts found by the respondent authority and with reference to the complaints put forward ... If it considers that reasons which have not yet been notified to one of the parties might be decisive for ruling on [one of these complaints] ..., it must hear the parties on this point and adjourn the proceedings if necessary."
22. Section 42(1) of the same Act states that, save as otherwise provided, the Administrative Court must either dismiss an application as ill-founded or quash the impugned decision.
By section 42(2):
"The Administrative Court shall quash the impugned decision if it is unlawful
1. by reason of its content, [or]
2. because the respondent authority lacked jurisdiction, [or]
3. on account of a breach of procedural rules, in that
(a) the respondent authority has made findings of fact which are, in an important respect, contradicted by the case file, or
(b) the facts require further investigation on an important point, or
(c) procedural rules have been disregarded, compliance with which could have led to a different decision by the respondent authority."
23. If the Administrative Court quashes the impugned decision, "the administrative authorities [are] under a duty ... to take immediate steps, using the legal means available to them, to bring about in the specific case the legal situation which corresponds to the Administrative Court's view of the law (Rechtsanschauung)" (section 63(1)).
24. In a judgment of 14 October 1987 (G 181/86) the Constitutional Court held:
"From the fact that it has been necessary to extend the reservation in respect of Article 5 (art. 5) of the Convention to cover the procedural safeguards of Article 6 (art. 6) of the Convention, because of the connection between those two provisions (art. 5, art. 6), it follows that, conversely, the limited review (die (bloß) nachprüfende Kontrolle) carried out by the Administrative Court or the Constitutional Court is insufficient in respect of criminal penalties within the meaning of the Convention that are not covered by the reservation."
25. Pursuant to Article 129 of the Federal Constitution, administrative courts called "independent administrative tribunals" (Unabhängige Verwaltungssenate) were set up in the Länder with effect from 1 January 1991. The functions of these tribunals include determining both the factual and the legal issues arising in cases concerning administrative offences (Verwaltungsübertretungen).
26. The instrument of ratification of the Convention deposited by the Austrian Government on 3 September 1958 contains, inter alia, a reservation worded as follows:
"The provisions of Article 5 (art. 5) of the Convention shall be so applied that there shall be no interference with the measures for the deprivation of liberty prescribed in the laws on administrative procedure, BGBl [Federal Official Gazette] No. 172/1950, subject to review by the Administrative Court or the Constitutional Court as provided for in the Austrian Federal Constitution."
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1