ITEMID: 001-58209
LANGUAGEISOCODE: ENG
RESPONDENT: BEL
BRANCH: CHAMBER
DATE: 1998
DOCNAME: CASE OF AERTS v. BELGIUM
IMPORTANCE: 2
CONCLUSION: Preliminary objections rejected (victims - out of time);Violation of Art. 5-1;No violation of Art. 5-4;Violation of Art. 6-1;No violation of Art. 3;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings
JUDGES: R. Pekkanen
TEXT: 7. The applicant, a Belgian national born in 1964, was arrested on 14 November 1992 for an assault causing its victim to be certified unfit for work, having attacked his ex-wife with a hammer. He was placed in detention pending trial, first in a two-person cell (see paragraph 23 below) and then on a ward in the psychiatric wing of Lantin Prison.
8. On 15 January 1993 the Committals Chamber (chambre du conseil) of the Liège Court of First Instance imposed a detention order on the applicant pursuant to section 7 of the “Social Protection” Act of 1 July 1964 (see paragraph 21 below). It decided that, pending his detention in an institution to be designated by the competent mental health board (see paragraph 21 below), Mr Aerts would be held provisionally in the psychiatric wing of Lantin Prison. The order was worded as follows:
“The Committals Chamber of the Liège Court of First Instance,
…
Adopting the reasons set out in the public prosecutor’s written submissions;
…
Finds that the accused committed the acts referred to in the prosecution submissions…;
Notes that at the material time the accused was suffering from a severe mental disturbance which made him incapable of controlling his actions and that he is still suffering from the same condition;
Orders the accused to be detained;
Orders that, pending the detention of the accused, who is at present in prison, in an institution to be designated by the Mental Health Board, he shall be detained provisionally in the psychiatric wing of Lantin Prison.”
9. On 10 March 1993 a psychiatrist sent the mental health board for the psychiatric wing of Lantin Prison the following report:
“Aerts, a detainee who is at present being held in the psychiatric wing of Lantin Prison, is a subject with a very fragile, badly organised personality and is at best what could be described as a borderline case. He is a severely addicted drug user who has been involved for many years in a sado-masochistic relationship with a young woman. He is extremely anxious in the common room of the wing, continually asks for his medication to be changed and is perpetually plunged in ruminations about how the relationship with his girlfriend on the outside is working out. His mental masochism is patently obvious to anyone listening to him and it would seem that he urgently requires the full benefits of an institution better equipped to calm the constant anxiety he feels at the moment. It is therefore an urgent matter for him to be able to leave the psychiatric wing of Lantin Prison.”
10. On 22 March 1993 the Mental Health Board designated the Paifve Social Protection Centre as the place where the applicant should be detained.
11. On 27 July 1993 the applicant requested leave in order to go back to live with his grandfather. In support of this application his family doctor, who had consulted the psychiatrist attached to the psychiatric wing, had on the previous day sent the Mental Health Board the following note:
“I am writing to you concerning Mr Michel Aerts, who seems to have been making satisfactory progress recently. That applies to both his behaviour and his short and medium-term projects.
Renewable leave would provide just the right opportunity to observe his behaviour and the way he sets about his projects outside the prison environment.”
12. In a decision of 2 August 1993 the Mental Health Board rejected the application in the following terms:
“It is not acceptable that our decision of 22 March 1993 placing [the applicant] in the Paifve Social Protection Centre has still not been executed.
That failure of administration on the part of the responsible authorities is harmful to the person concerned, who is not getting the treatment required by the condition which led to his detention.
However, the Mental Health Board cannot countenance any form of release which would make the person concerned a danger to himself and others.”
13. On 27 October 1993, five days after the judgment given by the Liège Court of Appeal (see paragraph 19 below), the applicant was transferred to the Paifve Social Protection Centre.
14. On 19 November 1993 the Mental Health Board, at the applicant’s request, decided to release him on probation on the grounds that “the detainee’s mental state [seemed] to have improved sufficiently” and that “the conditions of his social rehabilitation [were] such as to permit the belief that he [was] no longer a danger to society”. It made its decision subject to a number of conditions, which included the obligation to accept medical and social supervision and the obligation to live at the La Volière Hospital.
15. On 24 November 1993 Mr Aerts was released.
16. On 23 December 1996, having regard to the deterioration of the applicant’s behaviour and the breach of the conditions for his release, particularly abstention from heroin and alcohol, the Lantin Mental Health Board again ordered his detention and designated the Paifve Social Protection Centre for that purpose.
17. On 14 April 1993, being still detained in the psychiatric wing of Lantin Prison, Mr Aerts, together with three other prisoners in the same situation, applied to the President of the Liège Court of First Instance for an injunction ordering his immediate transfer, with a penalty of 10,000 Belgian francs (BEF) per day of delay. Among other allegations, he submitted that the conditions of his detention constituted inhuman and degrading treatment within the meaning of Article 3 of the Convention.
18. On 10 May 1993 the President of the Court of First Instance ruled that the applicant’s continued detention at Lantin was unlawful and constituted a trespass to the person which should be terminated as quickly as possible. He ordered the State to transfer Mr Aerts to Paifve and ruled that if the State did not comply with the injunction within a week of its being served, it would have to pay the applicant a penalty of BEF 10,000 per day of delay.
19. The State appealed on 28 June 1993. On 22 October 1993 the Liège Court of Appeal set aside the injunction of 10 May 1993 and ruled that there were no grounds for using the summary procedure. It held in particular that implementation of a mental health board’s decisions was an administrative act which fell outside the jurisdiction of the ordinary courts and that in the present case the administrative authorities had not committed a trespass to the person which was actionable in the civil courts. It gave the following reasons for its judgment:
“The respondents are subject to a detention order and Paifve Social Protection Centre was designated, by the Mental Health Board’s decisions of ... and … respectively, as the place where they were to be detained. They have not been transferred there and are still being held in Lantin Prison psychiatric wing. The appellant submits that, because of a shortage of places in the Paifve Social Protection Centre, it has been obliged to draw up a waiting-list, on a ‘first come, first served’ basis, and that the person at the top of the list is transferred to Paifve as soon as a place becomes available as a result of the release of another inmate whose condition has improved. The appellant adds that extensive work has been carried out in order to increase the capacity of Paifve Social Protection Centre and that the opening of a new building there on 1 October 1993 has already enabled several detainees on the waiting-list to be transferred; that the others will be admitted there gradually, for security reasons and to allow the supervisory personnel time to familiarise themselves with their duties (see the director’s report of 1 October 1993); and that it is possible that the respondents will very shortly benefit from the opening of this new building.
Although the respondents clearly have a right to be transferred to an institution where they will receive a scientifically organised course of treatment devised by psychiatric staff, it has to be recognised that in Paifve the chronic overcrowding, resulting in a deplorable lack of privacy not conducive to successful treatment, is now coupled with a marked lack of security and premises that are close to being unhygienic, so that treatment there is failing (see the descriptions in two cases in Liège Court of First Instance (Injunction Proceedings), one of 27.2.1990, reported in JLMB [Revue de Jurisprudence de Liège, Mons et Bruxelles] 1990, 435 and one of 4.6.1993 (Belgium v. B., C. and T., complaint no. R.F. 8349/93). The appellant has had to postpone transferring inmates subject to detention orders to this centre lest this worsen the situation, and has introduced the waiting-list system, which has been severely disrupted by a number of injunctions – accompanied by high penalties – giving certain inmates priority for reasons difficult to justify. The fact that the appellant has complied with these decisions – essentially because of the burden represented by the penalties – cannot be interpreted as meaning that it has decided once and for all to waive any challenge to the ordinary courts’ power to intervene in this area; circumstances which suggest that a right has been waived must be interpreted narrowly and such a waiver can be deduced only where those circumstances are not open to any other interpretation (Cass. [Court of Cassation] 20.4.1989, reported in Pas. [Pasicrisie] 1989, I, 861).
Unlike decisions on the release of an inmate subject to a detention order, which count as judgments (jugements) by virtue of their subject matter (see Cass. 17.6.1968 in Pas. 1968, I, 1183, and the opinion of Advocate-General Mahaux), mental health board decisions designating the institution in which a person subject to such an order is to be detained do not concern liberty of person, but only the manner in which a detention order is to be executed (see O. Vandemeulebroeke, ‘Les commissions de défense sociale’, RDP [Revue de droit pénal et de criminologie], 1986, p. 178, § 80). By their very nature, they are not covered by Article 30 of the Constitution.
The execution of these decisions is an administrative act, not a regulation (règlement) governed by Article 107 of the Constitution.
The appellant does not deny the respondents’ right to be transferred to Paifve, but argues that they should not be transferred immediately because of the overcrowding there, the resulting disorder and the potential security problems both for staff and other citizens. The decision to continue to hold the surplus numbers of mentally disturbed offenders in prison psychiatric wings is therefore a choice which the authorities have made after weighing the detainees’ right to the most appropriate medical treatment against general security requirements.
That choice is an administrative act of exactly the sort not subject to review by the ordinary courts.
Although the ordinary courts have jurisdiction to order the measures necessary to end or prevent any wrongful infringement of an individual right, they are prohibited from examining the appropriateness of a measure taken by an administrative authority, and from acting as an administrative authority (see the conclusions of Mr Velu, now Principal State Counsel but at that time Advocate-General, in Cass. 27.6.1980, Pas. 1980, I, p. 1357, and in particular p. 1349; and Cass. 27.11.1992, RG 7972, Belgium v. V.D.E. (in liquidation)). A judge dealing with applications for injunctions cannot, without interfering with the administration’s general policy, question the expediency of a decision to draw up a waiting-list and disrupt the order of that list by ruling, under threat of a penalty, that a mentally-disturbed offender cared for in less favourable conditions in a psychiatric wing must be transferred immediately. There must, in any event, be other possibilities for transfer, since a mental health board – and in cases of emergency, the chairman alone – can, even of its own motion, send an inmate to another State-run – or, in exceptional cases, private – institution.
The only court which has considered this issue on the merits found (see Liège Court of First Instance (Civil Proceedings), case of H. and V. v. Belgium, 16.2.1993) that the detention was nevertheless still legal, thus ruling out the existence of an arbitrary trespass to the person. The shortage of places in prisons no doubt justifies the building of additional accommodation, but this work – besides being impossible to complete overnight – entails financial commitments which are a matter of general policy not subject to review by the courts. The opening of the new building at Paifve is an illustration of the appellant’s concern about the problem of dealing with persons subject to detention orders.
The observations made in 1990 by the President of the Liège Court of First Instance, on the basis of an inspection of the premises and a judicial investigation, provide a clear comparison between the regimes and types of treatment provided for the inmates at Paifve and in the Lantin psychiatric wing; this comparison excludes any need for a new inspection and enables this court to draw the conclusion that, although the situation of mentally disturbed offenders in Lantin is not ideal, and may jeopardise their recovery, the regime under which they – including the respondents – live there cannot be likened to inhuman or degrading treatment as prohibited by the Convention for the Protection of Human Rights and Fundamental Freedoms.”
20. On 13 January 1994 the applicant applied for legal aid in order to appeal on points of law against the judgment of 22 October 1993. In support of his application, he put forward the following arguments:
“It appears from the judgment that the Court of Appeal left unanswered the appellant’s argument alleging a violation of Article 3 of the above-mentioned European Convention.
In its judgment of 22 October 1993 the Court of Appeal did not reply to this argument, although the provision concerned was cited by the appellant, although the court of first instance did implicitly but undeniably reply to it and although it was implicitly but undeniably reproduced by the appellant in his submissions to the Court of Appeal, which essentially asked the court to uphold the order appealed from.
It therefore appears that the above-mentioned judgment of 22 October 1993 breached, inter alia, Article 97 of the Constitution.
Moreover, the Court of Appeal’s judgment of 22 October 1993 is in total contradiction with a judgment given by the First Civil Division of the Liège Court of Appeal on 18 January 1993, in which it upheld an injunction made in a similar case, ruling that the detention was unlawful and constituted a trespass to the person.”
In a decision of 10 February 1994 the Legal Aid Board of the Court of Cassation refused the application in the following terms:
“Whereas the appellant has supplied evidence of insufficient means;
Whereas the appeal does not at the present time appear to be well-founded;
The application is rejected.”
21. The relevant provisions of the Law of 1 July 1964 “for the protection of society against mental defectives and incorrigible offenders” (“the 1964 Act”) read as follows:
“Where there are reasons to believe that the accused is suffering from a mental disorder or from a severe mental disturbance or defect making him incapable of controlling his actions, the investigating judicial authorities may, in those cases where pre-trial detention is provided for by law, issue an arrest warrant with a view to placing him under observation…”
“Except in cases of serious crimes committed for political motives or through the medium of the press, the investigating judicial authorities and the trial courts may order the detention of an accused who has committed a serious crime and is suffering from one of the conditions set out in section 1.
…”
“For each psychiatric wing there shall be a Mental Health Board.
The Mental Health Boards shall be composed of three members: a serving or retired judicial officer, who shall preside, a lawyer and a doctor.
The members of the Board shall be appointed for three years; they shall each have one or more substitutes.
The chairman and his substitutes shall be appointed by the President of the Court of Appeal. The lawyer and his substitutes shall be chosen by the Minister of Justice from two lists of three names, one submitted by the public prosecutor and one by the President of the Bar Association. The doctor and his substitutes shall be appointed by the Minister of Justice.
…”
“Detention shall take place in the institution designated by the Mental Health Board.
This shall be chosen from the institutions organised by the Government. The Board may, however, for therapeutic reasons and by means of a decision mentioning the precise reasons, order the person concerned to be placed and held in another institution able to provide an appropriate level of security and treatment.
…
If, at the time when the detention order is made, the accused is in prison, he shall be detained provisionally in the prison’s psychiatric wing or, where there is no psychiatric wing, in the wing designated by the court which has ordered his detention.”
“The Board may, of its own motion or at the request of the Minister of Justice, the public prosecutor, the detainee or the latter’s lawyer, order the detainee to be transferred to another institution.
An application by the detainee or his lawyer may not be resubmitted within the following six months.
The Board may allow the detainee to alternate detention with short periods of leave in accordance with conditions and rules to be laid down by the Minister of Justice.”
“In an emergency the chairman of the Board may provisionally order transfer to another institution. His decision shall be referred to the Board, which shall determine the issue at its next meeting.
In a like case, on grounds of security, the Minister of Justice may also provisionally order the transfer of the person concerned to another institution and shall inform the Board immediately.”
“The Board shall monitor the detainee’s condition and may for that purpose visit his place of detention or delegate one of its members to do so. It may, of its own motion or at the request of the public prosecutor, the detainee or the latter’s lawyer, order the detainee’s release, without conditions or on probation, where his mental condition has improved sufficiently and the appropriate conditions for his social rehabilitation have been established. If an application from the detainee or his lawyer is rejected, it may not be resubmitted within six months of the date of rejection.
…”
“Where release on probation is ordered, the detainee shall be subject to medical and social supervision whose duration and conditions shall be specified in the order.
Where his conduct or mental condition reveals a danger to society, particularly if he does not comply with the conditions imposed on him, the released detainee may, on an application from the public prosecutor of the district where he is found, be returned to detention in a psychiatric wing. The subsequent procedure shall be as laid down in sections 14 and 16.”
22. In 1989 the President of the Liège Court of First Instance, as the judge responsible for hearing urgent applications, was for the first time asked to deal with problems arising from the continued detention in the psychiatric wing of Lantin Prison of persons who the Mental Health Board had decided should be detained at the Paifve Social Protection Centre. This first application, lodged by a Mr H. and a Mr V., gave rise to an inquiry which included a visit to the psychiatric wing of Lantin Prison and interviews with the two complainants and the doctors working at the Centre.
23. The report on the visit to the premises and the interviews with Mr H. and Mr V., drawn up on 10 January 1990, is worded as follows:
“At 2 p.m. the Chairman declared the hearing open.
We went into the psychiatric wing, which is separated off from the rest of the prison, and consists of:
– one central office, with three or four supervisors, but no nurse;
– one dormitory with 26 beds in all, arranged along the two sides of the room, with a bedside table next to each bed. Two of these beds are reserved for prisoner-helpers (i.e. prisoners who are not mentally ill who have volunteered for this duty. They are considered trustworthy but have no special qualifications and are there to help the warders in the event of an incident). There are two warders: one on the ward and one in the cell area;
– one day-room with a television, a table-tennis table, two tables and nine chairs, and a surveillance camera covering the whole room. This room is immediately opposite the dormitory, and was initially supposed to be a dormitory as well. The medical authorities decided it was better to designate one as a sleeping area and the other as a day area (where smoking is allowed);
– near the day-room, the washroom, containing two toilets and a washbasin;
– near the dormitory, a separate bathroom with three showers, a bath and five washbasins;
– between the dormitory and the day-room, a corridor in which meals are served;
– a small room where, every week, drawing and French classes are held for an hour;
– a cell area currently housing twenty people, including eight people in twin cells (4 x 2). A central corridor separates the cells, in which the occupants can watch television and play cards between 6 and 9 p.m. In the morning and afternoon, they are allowed to go out into the exercise yard for one or two hours, depending on the weather. In the twin cells, one foam mattress has been placed directly on the floor;
– a fairly spacious exercise yard reserved for the inmates of the wing (of the ward and cell area alike).
When we visited the common room the occupants stated that:
– there were too many of them;
– they had nothing to do;
– they spent all day in the day-room, which seemed a very long time to them;
– it was very hot;
– they did not have enough air because the windows were never opened;
– they were entitled to only one visit per week for an hour and a half;
– they were not allowed to use the telephone;
– they could change their clothes only very rarely;
– they were sent all the misfits from other places;
– there were not enough supervisors (three during the week, and often fewer at the weekend);
– they had regular contact with the psychiatrist and were on very good terms with him.
When we visited the cell area,
Mr H. told us that:
– he had no work to do, so time passed very slowly for him;
– he spent the whole day resting;
– he saw the doctor when he asked to but the doctor did not examine them of his own accord;
– there was no psychologist;
– from time to time he saw a social worker, but she was overworked as she had other duties in the prison and was not there every day; he therefore saw her only once a week at most;
– there were never any trips outside and no leave;
– relations with the doctor and the supervisors were very good.
Mr V. told us that:
– he had no work, and could not do any sport;
– he was not allowed coffee or a lighter;
– there was no psychologist;
– he saw the social worker when he asked to, if she was there;
– the warders were good, but there were not enough of them.”
24. On 15 January 1990 the President of the Court of First Instance interviewed the psychiatrist assigned to the psychiatric wing of Lantin Prison. His statement reads as follows:
“…
I am neither a relative nor an associate of the complainants. I am the only neuropsychiatrist (or doctor specialising in psychology) in Lantin Prison. I work there for ten hours a week: two hours on Mondays, three hours on Tuesdays and Thursdays, and one hour on Fridays and Saturdays. The scope of my work is vast, as I am in theory responsible for looking after all the prisoners in Lantin (about 700 of them), not just the inmates of the psychiatric wing. It is the only prison in Belgium where there is only one neuropsychiatrist for so many prisoners and people subject to detention orders. I spend three-fifths of my time in the psychiatric wing. There are many different types of inmate: people under detention orders; drug addicts who are sent to the wing when they first arrive in Lantin (new ones arrive almost every day); prisoners – on remand or convicted – with a wide range of mental disorders; and finally, people undergoing psychiatric observation, particularly at the request of an investigating judge. The wing has 42 beds, including three for prisoner-helpers, but in fact there are between 35 and 55 inmates. During the holidays there are about 47 to 49. The dormitory has 23 beds and there are 13 cells, currently housing 17 people under detention orders. The figure 40 is much too high, as these people need a lot of psychiatric and neurological care, and occupational therapy. They require treatment for acute problems, which is given. They should also be treated on an ongoing basis with a view to their social rehabilitation. They should have regular consultations with psychologists and social workers. I also think it is essential for them to be given work. And yet this ongoing treatment is non-existent.
As for the people looking after them, there is only one part-time psychiatrist (myself). There are no qualified nurses, only supervisors with no special training. There should be five supervisors per shift, but there are often only four and sometimes even three. The presence of these supervisors is very important for the inmates: they are there to listen to them, talk to them, stay on the ward and play games with those who want to, which is practically impossible given the high number of inmates and the low number of supervisors. They are also supposed to supervise the inmates’ visits and the exercise yard. One of these supervisors, who is not a nurse, has to prepare the medication. There is no psychologist, and no occupational therapist, although one is needed to make work part of therapy. There is no tutor. There is only one social worker, who also works in other parts of Lantin (particularly with the women prisoners). The inmates under detention orders are also given a few music, English and French lessons by volunteer teachers, but much more could be done...
Inmates under detention orders may see me on request. I do not examine them systematically every day. It would be better for me to see them regularly and talk with them, but this is quite impossible given their number and the few hours I have at my disposal.
[After the above statement was read back to him, the witness added:]
Ongoing treatment is becoming increasingly necessary, given that the inmates under detention orders are spending longer and longer in the psychiatric wing, whereas they should be in a Social Protection Centre.
[In reply to a question from Mr Berwart:]
The detainees cannot be given intravenous injections, as these must be given by a doctor. They can be given only intramuscular injections, which should be given by a nurse but are given by supervisors whom I have shown how to do it. This cannot cause any serious problems, however. I only see inmates at their request. Often, what they want is very specific, so that I need to spend only a short time with them. However, when they want to ‘get things off their chest’, I usually spend fifteen minutes or half an hour with them, which I consider too little.
[In reply to a question from Mr Dewez:]
Generally speaking, intravenous injections may be required, particularly for acute depression. These injections cannot possibly be given in the psychiatric wing, owing to the lack of qualified staff.
…”
25. In an injunction of 27 February 1990 issued on the application of Mr H. and Mr V., the judge responsible for urgent applications held that, where it had been decided that a person was to be detained at Paifve, his continued detention in the psychiatric wing was in breach of “both sections 6 and 14 of the Social Protection Act of 1 July 1964 and Article 3 of the Convention”. He took the view that the situation at Lantin was much less favourable than at Paifve, noting that those detained there did not have the social, psychological and psychiatric care the Act required, or regular medical attention from a psychiatrist, or an environment suitable for the treatment of psychiatric patients. He accordingly ordered the State to provide the complainants with a detention regime that complied with the Act. When the Liège Court of First Instance came to consider the merits of the case, it held that the detention had remained lawful in spite of the long delay that had occurred before the transfer from Lantin to Paifve.
26. The President of the Liège Court of First Instance, sitting as the judge responsible for urgent applications, subsequently issued a number of injunctions along the same lines as that of 27 February 1990; in each case the State complied.
27. Hearing for the first time an appeal by the State against such an injunction, the Liège Court of Appeal, in a judgment of 18 January 1993 (M. v. Belgium judgment) upheld a decision that it was unlawful to continue to hold a detainee at Lantin despite the Mental Health Board’s decision, in the following terms:
“Whereas the Mental Health Board noted on 26 February 1991 that the doctor responsible for the wing had written in his report of 22 February 1991 that:
– the inmates’ mental health was deteriorating on account of the conditions they found themselves in on the wing, where they were obliged to mix with a constant stream of drug addicts, who revived a craving for drugs among some of them;
– there was a serious risk of an irreversible deterioration of the patient’s mental condition if he was left any longer on the wing, where it was obvious that he could not receive appropriate treatment;
– the failure to execute the detention order within a reasonable time invalidated the detainee’s detention, which became unlawful, and a reasonable time had expired.
Whereas the judge responsible for urgent applications rightly ordered payment of a penalty in default of compliance with his decision;
Whereas, indeed, the attitude of the appellant, which had shown some reluctance to execute the earlier decisions, justified such a measure…”
28. On a visit to Belgium from 14 to 23 November 1993 the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“the CPT”) went to several places of detention, including Lantin Prison. In its report, made public on 14 October 1994, it noted in particular with regard to the psychiatric wing at Lantin:
“188. The psychiatrist mentioned of his own accord the problems and the inadequacies of the regime on the psychiatric wing. All the patients with whom the delegates spoke complained about their lack of contact with qualified staff, although they mentioned the positive attitude of the prison staff.
189. Contact with the psychiatrist was extremely basic. Some patients saw him once every ten days; others, less frequently – for example, one patient who had been on the wing since July 1992 had seen him six times; another, on the wing since March 1993, who was obviously depressed and suicidal, had seen him once; another, who had been transferred to the wing in May 1993, twice. It appears that the consultations are extremely brief. In addition, some patients have claimed that they had to stand up during consultations.
190. During our visit several patients under detention orders were waiting to be transferred to a Social Protection Centre. One had been designated for transfer to Tournai since 22 December 1992 and had been on the wing for over a year (since 22 September 1992), while others had been waiting for their transfer for several months. It is obvious that keeping mental patients detained for lengthy periods in the conditions described above carries an undeniable risk of causing their mental state to deteriorate.
The CPT delegation was informed that, at the time, there was one institution specifically designated as a Social Protection Centre, at Paifve, and six other institutions (either hospitals or prisons) with a section reserved for people subject to detention orders. However, it appears that there are more such people than there are places at these institutions.
191. The psychiatric wing admits patients needing psychiatric observation and/or care, but it has neither the facilities nor the staff appropriate to a psychiatric hospital. The standard of care of the patients on the psychiatric wing fell, in every respect, below the minimum acceptable from an ethical and humanitarian point of view.
192. Consequently, the CPT recommends that the Belgian authorities should take, without delay, the necessary measures to:
– significantly increase the medical staff of the wing, which should include at least the equivalent of a full-time psychiatrist;
– assign sufficient numbers of qualified, psychiatrically trained nursing staff to the wing;
– ensure that qualified nursing staff are on stand-by on the wing at night and end the system of night supervision by prisoner-helpers;
– put in place personalised programmes of therapeutic activities involving the full range of treatment approaches (psychological, social and occupational);
– create a personalised therapeutic environment where material conditions are concerned (personal effects, wardrobes, sitting-rooms, washrooms separated from living quarters, etc.);
– more generally, make significant improvements to the physical living conditions.
193. The CPT further recommends the Belgian authorities to explore the possibility of replacing the dormitory with bedrooms for one or two patients.
194. Lastly, the CPT recommends that the Belgian authorities should make it a high priority to find a solution to the above-mentioned problem of the transfer of patients subject to detention orders.”
29. In an interim report made public on 3 May 1995, in reply to the CPT’s report of 14 October 1994, the Belgian Government stated that it was incorrect to say that prisoners on the psychiatric wing at Lantin were left under the sole supervision of prisoner-helpers: two prison officers belonging to the staff of the wing were present at night.
30. The Belgian Government filed a follow-up report which was made public on 21 February 1996. This contained, inter alia, the following comments on the above-mentioned CPT report (see paragraph 28 above):
“[re paragraph 192 of the CPT’s report]
It is important to note that a guidance and treatment unit (UOT) was created at Lantin psychiatric wing in 1993. This unit, which has been operational since 9 December 1993, comprises a psychiatrist, a deputy director, two psychologists, a social worker and an administrative assistant.
The unit has organised a scheme involving co-operation with a social work college which trains prison tutors. As a result, trainee tutors from this college will be able to do the practical part of their course in Lantin Prison, under the supervision of the UOT staff.
These trainee tutors will be responsible for designing a work structure capable of being expanded to accommodate other contributions. They will focus essentially on the psychiatric wing and the women’s wing.
Their aim will be to introduce occupational activities on the psychiatric wing, such as an occupational therapy workshop, an oral expression workshop, sport, etc….
In addition to the creation of the UOT, referred to above, steps are being taken to recruit a psychiatric nurse and a psychiatrist, for thirty hours a week. These trained staff will be assigned exclusively to the psychiatric wing.
[re paragraph 193 of the CPT’s report]
Only dormitory accommodation permits continuous (24-hour) surveillance; checks on cells could be made, at most (where the rules require special surveillance) once every fifteen minutes.
The Prison Service considers that it is for the doctor in charge of the psychiatric wing to decide whether, in view of each inmate’s particular condition, he should be placed in the dormitory or in a cell. Therefore, both possibilities should exist side by side.
Moreover, it should be remembered that the wing does have a small number of cells (individual, twin or three-bed).
[re paragraph 194 of the CPT’s report]
It should be explained at the outset that, under section 14 of the Act of 1 July 1964 ‘for the protection of society against mental defectives and incorrigible offenders’, mental health boards have the power to decide, quite independently, where a person is to be detained.
These administrative authorities, one of which exists for each psychiatric wing, are totally autonomous and have judicial powers. Thus, for instance, they can decide to release someone without conditions or on probation.
A release order may be challenged by the public prosecutor. In this event, the case file is referred to a higher mental health board for a ruling. A decision not to release someone, on the other hand, may be challenged by way of an appeal to the Court of Cassation.
The boards place persons subject to detention orders in special institutions run by the Ministry of Justice (the Paifve Social Protection Centre (EDS) and the mental-health sections of Merksplas and Turnhout Prisons) or in institutions run by the Walloon Region (Mons EDS for women and Tournai EDS for men) or in private psychiatric hospitals which agree to admit them.
It appears that there are particular problems with implementing mental health board placement decisions in the French Community; problems of lack of money and of places.
Historically, the mental health boards in the south of the country have been able to send people subject to detention orders to Mons EDS (in the case of women) and Tournai EDS (in the case of men). These institutions, which were originally run by the national Ministry of Public Health, and are now run by the Walloon Region, bill the Ministry of Justice to defray the cost of looking after the detainees placed with them.
However, over a very short period and without prior notice, these charges, which are fixed by the National Institute of Sickness and Disability Insurance, have increased very sharply, so that the amount allocated in the budget to cover them has turned out to be insufficient. It was necessary to request a further allocation, but this is granted only for the following financial year.
As regards the problems of capacity, we must point out that the number of places in the Paifve and Tournai Social Protection Centres is such that, for several years now, detainees have spent several months on prison psychiatric wings before they can actually be transferred to the EDS designated by the relevant mental health board. They are therefore ‘placed’ on a waiting-list in chronological order.
The fact that it is impossible to admit them immediately to their designated institution has led some of their lawyers to apply, almost systematically, to the president of the relevant court of first instance for an injunction to force Belgium to implement the boards’ decisions.
While the Belgian State has had orders made against it at first instance in several of these cases – orders backed up by penalties – it is noteworthy that this has not been the case on appeal, where, for instance, it has been held (see Civ. Liège, 1 October 1993) that ‘it is not for the ordinary courts to substitute their decision for that of the administrative authority and to order a detainee to be transferred regardless of the problems which that will pose for the administration, such as the choice of another State institution or, exceptionally, a private one’ and that, ‘although the Social Protection Act is not being fully complied with, the fact that the respondent is forced to mix with persons imprisoned under the ordinary criminal law cannot be likened to inhuman or degrading treatment contrary to Article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms’. Similarly, an appeal decision of the same court of 16 February 1993 held that the Prison Service could rely on the defence of force majeure as it had neither the premises nor the staff to comply properly with the Social Protection Act.
Although no such case is currently pending before the Court of Cassation, it should be pointed out that on 8 August 1994 a person subject to a detention order lodged an application against Belgium with the European Commission of Human Rights. This case is still pending at the present time.
It should also be pointed out that, in theory, Paifve EDS could provide sixty more places. This extra capacity can be fully utilised only if considerable renovation work on the disused building is carried out and the staff is increased. The renovation project is planned for the medium term (1999–2000).
If the spare capacity did become available, the total number of places might attain the ‘proper’ level. However, this increased capacity would obviously not save the boards having to send people to Tournai EDS, which has specialised equipment and staff. It is important to retain that possibility since Ministry of Justice and private institutions alone are totally insufficient to meet the demand.
Finally, it must be pointed out that the various federal and regional authorities involved in the problem of placing and treating persons subject to detention orders will be liaising in an attempt to find solutions. These negotiations will be organised by a working party to be set up by the Ministry of Justice, which will include representatives of the different parties involved.”
VIOLATED_ARTICLES: 5
6
VIOLATED_PARAGRAPHS: 5-1
6-1
NON_VIOLATED_ARTICLES: 3
5
NON_VIOLATED_PARAGRAPHS: 5-4


ITEMID: 001-100954
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF ANDRUSHKO v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 10
JUDGES: Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens
TEXT: 6. The applicant was born in 1951 and lives in Omsk.
7. She stood as a candidate for the elections to the legislative assembly of the Omsk Region scheduled for 24 March 2002. One of her competitors was Mr K., a local businessman.
8. On 20 March 2002 thirty-nine minority shareholders and former employees of the local department store “Oktyabrskiy” asked the applicant to finance a campaign against Mr K., the majority shareholder of Oktyabrskiy and the chairman of its Board of Directors.
9. On the same day the applicant arranged for the printing of 1,500 copies of the following leaflet, drafted by the shareholders:
“The Truth about K[.]
We, shareholders of the Oktyabrskiy department store, have suffered from K[.] We are thirty-nine employees taken hostage by that voracious big wheel. K[.]:
– depreciated our stock;
– coerced us into selling the stock for a song, threatening us with dismissal;
– forced thirty-nine employees to resign by not letting them work;
– paid a miserable salary and often paid us with rotten groceries;
– having ousted the shareholders by unlawful means, he has become the department store owner.
For more than a year we have been fighting for our rights in courts and other instances. The law-enforcement agencies are still powerless. In Omsk and its region many people have suffered because of K[.]’s unlawful conduct; but everyone is silent and money does not smell.
We, as victims of K[.]’s conduct, propose to write a book entitled ‘The story of K[.]’s dark fortune’. Let it include the story of everyone who has met that terrible man on his or her way and become his victim. His fortune was made from our tears. Do not taint yourself by supporting this man. Whatever he undertakes is damned: every spring the renovated city hall is flooded with sewage, and the Patriarch did not come to bless the Church on the left bank which had been built in breach of Orthodox canons.
We have suffered much harassment, repression and many a misfortune because of this man. Do not trust his promises, they build on our sorrows and lack of rights.
Voters! Sign your fair judgment of K[.]! Say ‘no!’ to the fortune made from the woes and tears of simple people.
We are firmly convinced that a man who breaks the Law should not be a parliamentarian and lawmaker.
On behalf of the shareholders: G. F[.], L. K[.], V. A[.]” (emphasis added)”
10. On 26 March 2002 the applicant was elected a member of the legislative assembly of the Omsk Region.
11. Mr K. challenged the election results before the Omsk Regional Court. In particular, he claimed that by publishing the leaflet the applicant had resorted to unlawful electoral campaigning. The parties to the proceedings were Mr K. and the electoral commission. The applicant was cited as a third party.
12. On 4 June 2002 the Omsk Regional Court rejected Mr K.’s application. It found that the leaflet had called on electors to vote against Mr K., which was a permissible form of electoral agitation. The publication of that leaflet had not breached the electoral laws. If Mr K. believed that the leaflet contained untrue information damaging to his honour and reputation, it was open to him to bring defamation proceedings.
13. Mr K. sued the applicant and the three signatories of the leaflet for defamation. He submitted that the italicised extracts above were untrue and that the leaflet had damaged his reputation and gravely affected the voters’ freedom of choice. He claimed compensation in respect of non-pecuniary damage.
14. The applicant produced her evidence, including the original leaflet bearing thirty-nine signatures, the decision to issue additional shares taken by the Board of Directors of the Oktyabrskiy department store under the chairmanship of Mr K., and an official document showing that the flooding of the ground floor of the city hall had been due to a construction defect which had subsequently been corrected. Several of the minority shareholders had given oral testimony to the court, confirming the information contained in the leaflet.
15. On 11 April 2003 the Kirovskiy District Court of Omsk allowed Mr K.’s claims, finding that the defendants had failed to prove the truthfulness of the contested extracts.
16. Firstly, the court referred to the judgment of the Omsk Regional Court of 4 June 2002. It found that it was bound by the finding contained in that judgment that the applicant had failed to prove the truthfulness of the statements in the leaflet.
17. The court further found as follows.
(a) The decision approving the issue of 300,000 additional shares had been adopted by a general meeting of shareholders rather than by Mr K. personally. That decision had previously been found lawful by a court. Although Mr K. was a majority shareholder, the fact that he had a decisive vote in certain issues “did not imply the unlawfulness of the decisions taken. For that reason the accusation blaming Mr K. for the depreciation of the shares and the ousting of shareholders, as if it were unlawful conduct, was unsubstantiated. The defendants had failed to prove that Mr K. had acted unlawfully”.
(b) It had not been shown that the depreciation had been the result of Mr K.’s conduct rather than of another cause. Moreover, the defendants had sold their shares for 800 to 1,000 roubles each.
(c) That there had been compulsion to sell shares had not been established. Mr K., being the chairman of the Board of Directors, had suggested that shareholders should sell their shares at the price of 30 roubles each. There was no evidence that he had resorted to extortion, violence or threats of violence.
(d) The allegation that Mr K. had “forced thirty-nine employees to resign by not letting them work” was also unsubstantiated. Mr K. had not personally signed any dismissals. The employees had resigned of their own free will and the resignations had been countersigned by the director general, Mr B. There had therefore been no causal link between Mr K.’s actions and the dismissals of the employees.
(e) The defendants had failed to prove that Mr K. had been personally responsible for the payment of “a miserable salary”. The salary of the employees of the Oktyabrskiy department store had been comparable to the average salary in the region. Moreover, “the notion of a miserable salary [was] subjective and the fact that such a salary [had been] paid did not imply that it was a consequence of Mr K.’s conduct. The unlawfulness of his conduct had not been proved”.
(f) The defendants had not submitted any evidence proving that shareholders had been ousted by unlawful methods or that Mr K. had obtained the ownership of the Oktyabrskiy department store unlawfully.
(g) The allegation that “whatever [Mr K.] undertakes is damned” was a “violation”. The statement that the city hall was flooded every spring was untrue as additional construction works in the city hall had fixed the flooding problem. As to the statement about the church, the Prior of the church had confirmed that it had been built in compliance with Orthodox canons. Moreover, Mr K. had received a “letter of benediction” for its construction.
18. The District Court concluded as follows:
“The leaflet was clearly intended for [electoral] campaigning and essentially purported to induce, and has induced, voters to take part in the election and vote against the candidate Mr K[.], which is not prohibited under election law.
It has been established that [the applicant] was not the source of the information in the leaflet, or its author; she merely disseminated it. As to the words, expressions and statements about [Mr K.’s] property and fortune and the way it was made, they reflect the opinion and civic position of a micro-community of shareholders and former employees in respect of an existing dispute between them and the joint stock company of which Mr K[.] is one of the directors. A judicial dispute concerning these matters is pending before the Omsk Commercial Court ...
As the court considers it proven that the dissemination of statements by the defendants has damaged Mr K[.]’s honour, dignity and professional reputation, it awards him 500 roubles against [the applicant] in compensation for non-pecuniary damage... The court takes into account the nature of the statements disseminated and the fact that the leaflet was signed not only by the defendants, but also by thirty-nine other persons, which substantially reduced the defendants’ liability for the nonpecuniary damage incurred by the plaintiff.”
19. In the operative part of the judgment the court cited the italicised statements in the leaflet and pronounced them untrue and defamatory.
20. The applicant appealed against the judgment. She submitted that the District Court had incorrectly considered itself bound by the judgment of 4 June 2002, which had concerned a dispute involving a different cause of action and different parties. It had concerned a dispute over the election results between Mr K. and the electoral commission; the applicant had been a third party to that dispute. The issues relating to defamation or compensation for non-pecuniary damage had not been examined in the judgment of 4 June 2002. The applicant further maintained that the defendants had submitted evidence proving the truthfulness of the contested allegations. In particular, the witnesses had confirmed that all the statements contained in the leaflet were true. The District Court’s findings had been contradictory. In particular, although the District Court had found that Mr K., being the majority shareholder of the Okrtyabrskiy department store, had influenced its policy, it had also found, conflictingly, that Mr K. had not been personally responsible for the impugned omissions. In conclusion, the applicant submitted that the judgment of 11 April 2003 had violated her right to impart opinions.
21. On 11 June 2003 the Omsk Regional Court upheld the judgment of 11 April 2003 on appeal. It held as follows:
“The conclusions of the [District] Court are correct, as it can be seen from the contents of the entire contested text that the authors presented Mr K[.], a candidate for election to the legislative assembly of the Omsk Region and head of [the Oktyabrskiy department store] as disreputable, as someone who infringes the Law and moral principles, who builds his fortune unlawfully and who harasses the shareholders of the Oktyabrskiy department store in various ways ...
The [District] Court allowed the claims as the defendants had not submitted evidence showing that the allegations contained in the leaflet were true. Moreover, the assessment of Mr K[.]’s personality was formulated in clearly insulting terms. ...
... the [District] Court correctly considered the finding made in the judgment of the Omsk Regional Court of 4 June 2002 that [the defendants] had failed to prove the truthfulness of the statements contained in the leaflet ... as evidence established by the courts ...
[The applicant’s] arguments that the present case has a different cause of action and that the parties have different procedural status cannot warrant the re-establishment of a fact that has earlier been established by a court. As the Regional Court made an assessment of the truthfulness of the allegations contained in the leaflet, the courts are bound by that judgment ... in the determination of the present case.
[The applicant’s] argument that ... the judgment violates citizens’ constitutional right to freedom of thought, speech and information is unfounded. The views of a citizen or a group of citizens on a certain issue, if they are distributed in written form, must be formulated in proper language.
The expressions used in the leaflet, such as ‘voracious big wheel’, ‘that terrible man’, ‘his fortune was made from our tears’, ‘whatever he undertakes is damned’, ‘the story of K[.]’s dark fortune’ are clearly insulting, are formulated in cynical terms, give an assessment of the plaintiff’s personality and contradict the socially acceptable norms of conduct and religious principles ...
The appeal must be dismissed because the [District Court] correctly assessed the evidence, rightly concluded that the statements in the leaflet were untrue and gave judgment in accordance with the substantive and procedural rules.
However, the operative part of the judgment must be clarified. Since essentially the entire leaflet contains untrue statements damaging to Mr K[.]’s honour, dignity and professional reputation, the list of statements that were found to have been untrue must be deleted from the operative part.
d untrue statements damaging to Mr K[.]’s honour, dignity and professional reputation set out in a deliberately insulting form, the degree of anguish experienced by the victim, the [Regional Court] considers it appropriate to increase, in accordance with Article 151 of the Civil Code, the award in respect of non-pecuniary damage to 5,000 roubles against [the applicant] and to 2,000 roubles against [the other defendants].”
22. The Federal Law of 19 September 1997 on Basic Guarantees of Citizens’ Electoral Rights and the Right to Participate in Referenda (no. 124-FZ, in force at the material time, hereafter “the Electoral Rights Act”) provides that election candidates may distribute agitation materials (section 41 § 1).
23. It is prohibited to abuse the freedom of the mass media, in particular, by encouraging social, racial, ethnic or religious hatred or enmity, by calling for the usurpation of power or forcible change of the constitutional foundations of the Russian Federation or breach of the territorial integrity of the Russian Federation, by advocating war or by abusing the freedom of the mass media in any other way (section 43 § 2).
24. Article 152 of the Civil Code provides that an individual may apply to a court with a request for the rectification of “statements” (“сведения”) that are damaging to his or her honour, dignity or professional reputation if the person who disseminated such statements does not prove their truthfulness. The aggrieved person may also claim compensation for losses and non-pecuniary damage sustained as a result of the dissemination of such statements.
25. Resolution No. 11 of the Plenary Supreme Court of the Russian Federation of 18 August 1992 (amended on 25 April 1995 and in force at the material time) provided that in order to be considered damaging statements had to be untrue and contain allegations of a breach of laws or moral principles (commission of a dishonest act, improper behaviour in the workplace or in everyday life, etc.). “Dissemination of statements” was understood as meaning the publication of statements or their broadcasting (section 2). The burden of proof was on the defendant to show that the disseminated statements were true and accurate (section 7).
26. Article 151 § 1 of the Civil Code provides that a court may award compensation for non-pecuniary damage to an individual who has incurred such damage as a consequence of acts that have violated his personal nonpecuniary rights. Article 150 lists, among other personal non-pecuniary rights, the dignity of a person and his/her honour, good name and professional reputation.
27. The amount of compensation for non-pecuniary damage depends on the degree of fault of the offender and other pertinent circumstances. The court must also take into account the degree of physical or mental suffering experienced by the victim (Article 151 § 2). T (Article 1101).
28. The circumstances established by a final judgment are binding on the courts. There is no need to establish those circumstances anew and they may not be contested in any future litigation by the same parties (Article 61 § 2 of the Code of Civil Procedure).
29. The court must decide on the claims made by the plaintiff. It may only decide on claims it has raised of its own motion where a federal law so provides (Article 196 § 3).
VIOLATED_ARTICLES: 10


ITEMID: 001-60775
LANGUAGEISOCODE: ENG
RESPONDENT: BEL
BRANCH: CHAMBER
DATE: 2002
DOCNAME: CASE OF BOCA v. BELGIUM
IMPORTANCE: 1
CONCLUSION: No violation of Art. 6-1 as regards the proceedings on the merits;Violation of Art. 6-1 as regards the urgent proceedings
JUDGES: Christos Rozakis
TEXT: 8. The application relates to two sets of proceedings. The first concerns the divorce proceedings proper before the court of first instance and the second concerns the interim measures in respect of which Article 1280 of the Judicial Code gives the summary applications court special power and jurisdiction to hear applications for interim measures during the divorce proceedings.
9. On 17 March 1998 the applicant's husband filed a divorce petition against her on a specified ground.
10. After a hearing on 20 October 1998 judgment was reserved until 4 November 1998, when the Brussels Court of First Instance granted a divorce against the applicant and ordered each party to pay its own costs.
11. On 22 December 1998 the applicant's husband appealed against the costs order.
12. At a preliminary hearing on 26 January 1999 the parties declared that the case was ready for trial. It was immediately set down for hearing in the relevant ordinary division. On 7 May 1999, in reply to a letter from the applicant's lawyer, the registry of the Brussels Court of Appeal informed her that it would take eight months for the appeal to be heard. On 25 November 1999 the registry listed the case for hearing on 24 February 2000. At the hearing the applicant's husband stated that he was withdrawing his appeal. The court gave judgment on 16 March 2000 acknowledging that the appeal had been withdrawn.
13. The divorce decree was registered on 24 October 2000.
14. On 17 March 1998 the applicant was summoned before the Brussels Court of First Instance, as the court hearing summary applications, to deal with interim measures relating to the divorce petition and, more particularly, to the two children, born in 1984 and 1988, of whom the father had had custody since the couple had separated in 1995. The parties filed their main pleadings before the hearing of 17 June 1998. The applicant then filed further pleadings at the hearing. In an order of 26 June 1998 the President of the Brussels Court of First Instance provisionally granted the mother renewed contact with the children and determined the maintenance payable to the applicant by the father per child and per month.
15. On 31 July 1998 the applicant's husband appealed against that order. Neither party appeared at a preliminary hearing on 11 August 1998 and the appeal was re-listed for hearing. On 21 October 1998 the appellant asked for the hearing date to be fixed by judicial recorded delivery. At the hearing listed for 24 November 1998 the appeal was adjourned until 12 January 1999 for the court to check that it was ready for hearing. At the hearing the parties filed their grounds of appeal and a timetable for subsequent pleadings. On 21 January 1999 the applicant filed further pleadings and a list of documents. Her ex-husband filed further pleadings on 27 January 1999. On 28 January 1999 the case, which was now ready for hearing, was set down for hearing in an ordinary division.
16. On 6 May 1999, in reply to a letter from the applicant's lawyer, the registry of the Brussels Court of Appeal stated that the case had been set down for hearing and would take approximately eight months to come to a hearing. On 14 December 1999 the registry informed the parties that the case would be heard on 24 March 2000 but did not specify how the hearing would be conducted.
17. On 16 May 2000 the parties filed joint pleadings with the registry of the Court of Appeal stating that they intended to withdraw from the proceedings. After a hearing on 23 June 2000 the Court of Appeal gave judgment on 27 June 2000 acknowledging their decision. In its judgment it noted that counsel for the parties had stated at the hearing that the parties would continue to comply with the interim measures set out in the order of 26 June 1998.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-88541
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF GRAYSON AND BARNHAM v. THE UNITED KINGDOM
IMPORTANCE: 2
CONCLUSION: No violation of Art. 6-1;No violation of P1-1
JUDGES: David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nicolas Bratza;Päivi Hirvelä
TEXT: 6. On 23 January 2002 the applicant and a co-defendant were convicted with intent to supply over 28 kilograms of pure heroin, which was seized by the police at the time of arrest. The heroin was assessed to have a wholesale value in excess of GBP 1.2 million and a street value in excess of GBP 4 million. The following day the applicant was sentenced to 22 years’ imprisonment.
7. On 1 July 2002, after considering written and oral submissions from the applicant and the prosecution, the judge made a confiscation order under the Drug Trafficking Act 1994 (“the 1994 Act”: see paragraphs 20-22 below). He held that the applicant had benefited from drug trafficking. In assessing the amount of the benefit the judge took into account, inter alia, the following sums: GBP 18,000 cash found on the applicant at the time of his arrest; GBP 13,000 that the applicant had paid to his brother when a business partnership between them came to an end; GBP 21,000 that he had spent, in cash, on buying two cars; a further GBP 8,000 which he had spent on another two cars; and GBP 620,445 which was the judge’s assessment of the cost to the applicant of purchasing the heroin which had led to the conviction. As regards this last sum, the judge, having heard all the evidence at trial, was satisfied that the applicant had been the principal participant in the offence and must have contributed to a large extent to the purchase of the drugs. However, to be fair to the applicant he took as his share one half of the wholesale value. The judge was further satisfied that so large a consignment would not have represented the applicant’s first venture into drug trafficking and that he had financed the purchase with the proceeds of previous drug dealing. The applicant failed to rebut this assumption. The final item of expenditure taken into account by the judge was GBP 70,000 which an associate of the applicant, who claimed to have an income of approximately GBP 40,000 a year, had paid in respect of the applicant’s legal fees. The judge found that it was the applicant’s money; that it was the proceeds of drug trafficking; and that it demonstrated that the applicant had money elsewhere he was not prepared to reveal.
8. Next, the judge examined property received by the applicant during the six-year statutory period. The largest element emerged from an analysis of 17 bank accounts which the applicant had held at one time or another. The banking records demonstrated unexplained credits to the applicant’s account in the two trading years ending April 1998 and April 2000 which exceeded the turnover of his business as recorded in the accounts by approximately GBP 153,000. During the intervening year, ending April 1999, the bank statements showed deposits at GBP 83,000 below the business trading turnover. The judge therefore considered whether it was appropriate to take the three years together but decided that this would not be correct. If the applicant had delayed banking some of his 1999 profits until the following year, one would have expected to have seen a pattern of very heavy deposits in the first part of 2000, but this was not the case. He concluded that the applicant had benefited to the amount of GBP 1,230,748.69.
9. Under the statutory scheme, once the judge had assessed the amount of benefit which the applicant had received from drug trafficking, the burden passed to the applicant to show on the balance of probabilities that his realisable assets were less than the amount of his benefit (see paragraph 23 below). The police, having investigated the applicant’s background, had found realisable assets of GBP 236,000, including the cash found on the applicant at the time of his arrest, a car and some business stock. The judge observed:
“The fact that the police have traced a certain amount of property is not of itself a reason to find it is the only property available to the [applicant]. Also credibility is a real issue. I have given myself a Lucas direction [that before reliance can be placed on the fact of a person’s lying, it must be shown to be deliberate; it must relate to a material issue; the motive must be a realisation of guilt and a wish to conceal the truth rather than some other reason: R v Lucas [1981] QB 720]. This Defendant is cunning, devious and intelligent. He was increasingly unbelievable and offensive to common sense. Giving evidence he sought to mislead at every turn, wary that the truth would reveal assets he didn’t want to and that he had hidden assets prior to conviction. He has lied persistently and blatantly and his credibility is nil. He has only himself to blame if I do not accept his evidence. I am convinced that he has tried to mislead me. I do not accept that there were no other assets, so I have reached the conclusion that the appropriate order be the wholesale value of the drugs, that being £1,236,748. He has not satisfied me that his assets are less than his benefit ...”
He set an additional ten years’ imprisonment to be served by the applicant if he had not paid within twelve months.
10. The applicant appealed to the Court of Appeal on the grounds, inter alia, that the trial judge should have adjourned to allow him to submit additional accountancy evidence and that it had been contrary to Article 6 of the Convention for the judge to hold that it was for the applicant to establish, on the balance of probabilities, that his realisable property was less than his benefit. Although he had been represented throughout the trial and confiscation proceedings, he was unrepresented for the appeal and put his arguments before the court in a series of letters written from prison.
11. On 18 May 2005 the Court of Appeal dismissed the appeal, although it reduced the default sentence of imprisonment from ten years, the statutory maximum, to eight years. The court held that the additional accountancy evidence which the applicant sought to have admitted did not rebut the prosecution case but in fact, to a large extent, supported it. The Court added that although the accountancy report raised a suggestion of possible double-counting by the prosecution when it came to an analysis of realisable property, that was
“irrelevant, since the judge’s order did not depend upon any calculation of realisable property. It depended upon his finding that the applicant had utterly failed to demonstrate that he had not got assets equivalent to his benefit.”
The Court of Appeal referred to Phillips v. the United Kingdom, no. 41087/98, ECHR 2001-VII, and observed that:
“In that case the court held that the reverse onus of proof in relation to the statutory assumption at the calculation of the benefit stage is fully Convention compliant. If reverse onus is Convention compliant at the stage at which primary liability is calculated, it is plain that it is equally compliant to require of the defendant evidence to demonstrate that the order for confiscation should be less than the amount of benefit, on the grounds that he does not have enough realisable property to meet it. The level of assets available to a defendant is normally peculiarly a matter within his own knowledge.
In those circumstances, this was, we are satisfied, a large confiscation order. It was, however, one which it was plainly proper for the judge to make. The judge followed the scheme of the Act in arriving at his conclusions, and in the context of a man who was caught when engaged in importing heroin which had cost well over £1 million with the prospect of a profit of approximately three times that amount, the conclusion that there were large items of unexplained expenditure and hidden assets is, in the circumstances, hardly surprising.”
12. On 16 July 2001 the second applicant was convicted of two conspiracy charges involving plans to import large consignments of cannabis into the United Kingdom. Neither importation had been successful and the whereabouts of the drugs were unknown. In the course of the trial the jury heard evidence from an undercover police officer, “Murray”, who, posing as a money launderer, had made contact with the applicant. Murray’s evidence was that the applicant had told him that his organisation was expected to receive payment of GBP 12 million, of which his personal share would be GBP 2 million, which he asked Murray to help him “launder”.
13. The applicant was sentenced to eleven years’ imprisonment, the judge describing him as the lead organiser in a sophisticated, established and internationally based drug trafficking business.
14. The confiscation proceedings commenced in January 2002, when the first hearing took place to determine the statutory benefit to the applicant from his drug trafficking operations. The applicant was legally represented. He did not give evidence but conceded through his counsel that he had benefited from drug trafficking within the meaning of the 1994 Act. On 8 February 2002, the trial judge ruled that the total benefit to the applicant was GBP 1,525,615. This sum included GBP 27,000 that the applicant had given to Murray to establish his trust; various amounts totalling GBP 59,000 which the applicant had mentioned to Murray during their conversations; a car worth GBP 11,615; GBP 65,000 which the applicant had spent on renovating his house; GBP 23,000 which the applicant had told Murray he had invested in cannabis importation; GBP 500,000 with which the applicant had purchased the consignment of cannabis which formed the basis of the first count of which he had been convicted; GBP 600,000 with which the applicant had purchased another consignment of cannabis which he had mentioned to Murray; a further GBP 240,000 which related to the cost of purchasing yet another consignment of cannabis which the applicant had discussed with Murray. The applicant did not appeal against that ruling.
15. In April 2002, the judge resumed the proceedings to assess the applicant’s realisable assets. The applicant and his wife gave evidence, to the effect that their only asset was their house in Spain, which they owned jointly. The applicant claimed to have been entirely unsuccessful in his attempts at drug dealing and to have earned a living by singing in bars. Since his conviction his wife was living with their son in England and supporting herself with a cleaning job. The defence submitted that there was no evidence capable of supporting a finding of assumed “hidden” assets and such would lead to a risk of injustice. Of the total benefit figure, it was submitted that 94.4% was expenditure and the remaining 5.6% received had been dissipated over the years of the applicant’s imprisonment in Spain and Portugal and in the United Kingdom. His car, worth GBP 11,615, had also been confiscated by the Portuguese authorities.
16. On 12 April 2002, the judge made his ruling. He explained that:
“In reaching my determination I have to apply the scheme laid down by the 1994 Act, subject to ensuring from the evidence before me that in applying any reverse burden of proof there is no ascertained real or serious risk of injustice resulting from this. Essentially I have to weigh whether the evidence relied on by the defendant is both clear and cogent. In my judgment, it is not, because it fails to explain truthfully what the applicant did in relation to his drug trafficking activities.”
The judge found that the applicant and his wife had lied about their activities and their sources of income. The applicant had not explained what had happened to the various consignments of cannabis he had had under his control. The judge continued:
“In any event, as I do not find Mr and Mrs Barnham are truthful witnesses on material facts I am unable to accept their evidence that no cash assets exist from Mr Barnham’s substantial international drug trafficking.
He has failed to explain truthfully what he did and what he did with what he earned from what he did. That has been his choice and if it leaves as it does, this Court with no clear and cogent evidence to persuade it that the benefit is not fully realisable, the responsibility for that is Mr Barnham’s and Mr Barnham’s alone.
It was his choice whether he told the truth in his evidence and no-one else’s. [Counsel for the defence] relies on the lack of assets discovered by the West Yorkshire police ... It is, in my view, not surprising, particularly operating in foreign jurisdictions, that investigators find difficulty in tracing cash assets derived from drug trafficking. It is because of this, indeed, that the scheme of the 1994 Act is what it is.
Whilst I accept [defence counsel’s] other submission, that the vast majority of the benefit I assessed, it was on the basis of expenditure on the drugs, that does not explain what happened in the end to those drugs upon which that sum was expended. Unless, which I do not, I was to find that Mr Barnham lived as he did in Spain for all those years, never ever successfully importing cannabis from Morocco to anywhere at all.”
He made a confiscation order equal to the amount which he had assessed as the benefit, namely GBP 1,525,615, with five years, three months’ imprisonment if the applicant had not paid within 18 months.
17. The applicant appealed against the judge’s ruling regarding his realisable assets, asserting that Article 6 § 1 of the Convention applied also when the judge came to assess realisable property, and that it required the prosecution at least to make out a prima facie case of realisable assets before the burden of proof shifted to the defendant. It was asserted by the applicant’s counsel that there was a difference between cases where the prosecution had proved benefit at the first stage by evidence and cases where the benefit had been calculated through the use of assumptions. In the second type of case, the assumptions continued to have effect when calculating realisable assets.
18. In its judgment of 28 April 2005, the Court of Appeal rejected this argument, holding as follows:
“In our judgment the correct approach for the court to take when dealing with confiscation proceedings at the second stage is the same whether the benefit has been proved by evidence in addition to the statutory assumptions. Once the prosecution has established the benefit there is no requirement on it to provide a prima facie case. At the second stage the burden of proof shifts to a defendant to establish, if he can, his realisable assets to the satisfaction of the court. By the second stage a defendant will know exactly how the court has determined benefit attributable to him and must prove by evidence what his realisable assets are. It is for him to show why the confiscation order should not be ‘the value of (his) proceeds of drug trafficking’. If he proves that he has no, or appreciably less, realisable assets than the amount of the benefit determined by the court the order will be made in a lesser sum. Provided the judge keeps well in mind the principle that the risk of serious injustice to the defendant must be avoided and does not just pay lip service to that principle the order will be in the amount assessed as either the amount of benefit or such other sum as the defendant shows represents his realisable assets.
To hold that the prosecution must, in some way, show a prima facie case that the defendant has hidden assets in our judgment would defeat the object of the legislation. It is designed to enable the court to confiscate a criminal’s ill-gotten gains. The expression ‘hidden assets’ is indicative of the fact that the prosecution can have no means of knowing how and where a defendant may have dealt with or disposed of the proceeds of his criminal activities.”
The Court of Appeal found, however, that the judge had made an error of calculation and reduced the order to GBP 1,460,615.
19. On 6 October 2005, the Court of Appeal refused to certify a point of law of general public importance for appeal to the House of Lords concerning Article 6 of the Convention.
20. The 1994 Act set out a scheme for the confiscation of the proceeds of drug trafficking in respects of offences committed before 23 March 2003. Where all the offences charged or indicted in the proceedings were committed after that date, the 1994 Act no longer applies and instead the sentencing court will impose a confiscation order under the Proceeds of Crime Act 2002.
21. Section 2 of the 1994 Act provided that a Crown Court should make a confiscation order in respect of a defendant appearing before it for sentencing in respect of one or more drug-trafficking offences, whom the court found to have received at any time any payment or other reward in connection with drug trafficking.
22. Under section 5 of the 1994 Act, the confiscation order had to be set at a sum corresponding to the proceeds of drug trafficking assessed by the court to have been gained by the defendant, unless the court was satisfied that, at the time the confiscation order is made, only a lesser sum could be realised.
23. At the first stage of this procedure, the onus was on the prosecution to establish that the defendant had benefited from drug trafficking. However, section 4(2) and (3) of the 1994 Act required the court to assume that any property appearing to have been held by him at any time since his conviction or during the period of six years before the date on which the criminal proceedings were commenced was received as a payment or reward in connection with drug trafficking, and that any expenditure incurred by him during the same period was paid for out of the proceeds of drug trafficking. This statutory assumption could be set aside by the defendant in relation to any particular property or expenditure if it was shown by him to be incorrect or if there would be a serious risk of injustice if it were applied (section 4(4)). At the second stage of the procedure, the burden shifts to the defendant to establish that the amount that might be realised is less than the amount of benefit (see R. v. Barwick, paragraphs 24-25 below). The required standard of proof applicable throughout proceedings under the 1994 Act was the balance of probabilities (section 2(8)).
24. The appellant in R. v. Barwick ([2001] 1 Cr App R (S) 129) had, over a period of years, defrauded three women into parting with sums of money totalling in excess of GBP 500,000. He pleaded guilty to a number of offences of dishonesty. The judge made a confiscation order under the Criminal Justice Act 1988 (which set out a scheme for the confiscation of the proceeds of crimes other than drug trafficking). The benefit was assessed as the GBP 500,000 that the appellant had received from the women, adjusted to GBP 600,000 on the assumption that he would have invested it in such a way as to preserve its value against inflation at least. The police were unable to identify any significant assets held by or on behalf of the appellant or to trace where the stolen money had gone, and claimed that he must have hidden it, since he did not appear to have lived extravagantly or spent large sums of money. The appellant claimed that he had lost a considerable part by gambling, but there was no evidence to corroborate his claims. The trial judge found the appellant’s evidence to be evasive and dishonest but nonetheless decided to reduce the benefit figure by GBP 150,000 as an acknowledgement that some of the money had probably been spent over the years. The appellant appealed to the Court of Appeal, contending inter alia that the judge had been wrong to place the burden on the appellant to establish that his realisable assets were less than the amount of the benefit.
25. The Court of Appeal held that the 1988 Act made it clear that, while the burden of proving the benefit was on the prosecution, it was for the defendant to establish on the balance of probabilities that the amount that might be realised was less. The Court of Appeal observed that, as a matter of principle,
“... it is likely that an offender may take steps to make the proceeds of crime difficult to trace. Once it is proved that he has received the benefit, it is pragmatic, and entirely fair to the defendant, to place upon him the onus of showing (to the civil standard) that he no longer has the proceeds or that their extent or value has diminished”.
It continued:
“We stress that the scheme of the Act requires the court to perform two distinct and discrete tasks. First, to determine the benefit. Secondly, to determine the amount that might be realised at the time the order is made, which may be very different. Further, the amount that might be realised may be quite unrelated to the identifiable proceeds of the offence, e.g. a lottery win, inheritance, or other lawfully acquired property. In the end, the task of the court at the second stage is to determine the amount ‘appearing to the court’ to be the amount that might be realised. But once the benefit has been proved, it is permissible and ought normally to be the approach of the court, to conclude that the benefit remains available until the defendant proves otherwise ...”
26. In R. v. Benjafield [2002] UKHL 2, the House of Lords unanimously held that the confiscation scheme under the 1994 Act was compatible with Article 6 § 1 of the Convention. In R. v. Rezvi [2002] EKHL 1 it reached a similar conclusion as regards the confiscation scheme applicable under the Criminal Justice Act 1988 to the proceeds of other types of crime. Lord Steyn, with whom the other Law Lords agreed, observed in Rezvi:
“It is a notorious fact that professional and habitual criminals frequently take steps to conceal their profits from crime. Effective but fair powers of confiscating the proceeds of crime are therefore essential. The provisions of the 1988 Act are aimed at depriving such offenders of the proceeds of their criminal conduct. Its purposes are to punish convicted offenders, to deter the commission of further offences and to reduce the profits available to fund further criminal enterprises. These objectives reflect not only national but also international policy. The United Kingdom has undertaken, by signing and ratifying treaties agreed under the auspices of the United Nations and the Council of Europe, to take measures necessary to ensure that the profits of those engaged in drug trafficking or other crimes are confiscated: see the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances (19 December 1988); Council of Europe Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime, Strasbourg, 8 November 1990. These Conventions are in operation and have been ratified by the United Kingdom.
It is clear that the 1988 Act was passed in furtherance of a legitimate aim and that the measures are rationally connected with that aim ... The only question is whether the statutory means adopted are wider than is necessary to accomplish the objective. Counsel for the appellant submitted that the means adopted are disproportionate to the objective inasmuch as a persuasive burden is placed on the defendant. The Court of Appeal [2001] 3 WLR 75, 103 carefully considered this argument and ruled:
‘The onus which is placed upon the defendant is not an evidential one but a persuasive one, so that the defendant will be required to discharge the burden of proof: see Lord Hope’s third category of provisions in R v Director of Public Prosecutions, Ex Kebilene, [2000] 2 AC 326, 379. This is therefore a situation where it is necessary carefully to consider whether the public interest in being able to confiscate the ill-gotten gains of criminals justifies the interference with the normal presumption of innocence. While the extent of the interference is substantial, Parliament has clearly made efforts to balance the interest of the defendant against that of the public in the following respects:
(a) It is only after the necessary convictions that any question of confiscation arises. This is of significance, because the trial which results in the conviction or convictions will be one where the usual burden and standard of proof rests upon the prosecution. In addition, a defendant who is convicted of the necessary offence or offences can be taken to be aware that if he committed the offences of which he has been convicted, he would not only be liable to imprisonment or another sentence, but he would also be liable to confiscation proceedings.
(b) The prosecution has the responsibility for initiating the confiscation proceedings unless the court regards them as inappropriate ...
(c) There is also the responsibility placed upon the court not to make a confiscation order when there is a serious risk of injustice. As already indicated, this will involve the court, before it makes a confiscation order, standing back and deciding whether there is a risk of injustice. If the court decides there is, then the confiscation order will not be made.
(d) There is the role of this court on appeal to ensure there is no unfairness.
It is very much a matter of personal judgment as to whether a proper balance has been struck between the conflicting interests. Into the balance there must be placed the interests of the defendant as against the interests of the public, that those who have offended should not profit from their offending and should not use their criminal conduct to fund further offending. However, in our judgment, if the discretions which are given to the prosecution and the court are properly exercised, the solution which Parliament has adopted is a reasonable and proportionate response to a substantial public interest, and therefore justifiable.’ (Emphasis supplied)
For my part I think that this reasoning is correct, notably in explaining the role of the court in standing back and deciding whether there is or might be a risk of serious or real injustice and, if there is, or might be, in emphasising that a confiscation order ought not be made. The Crown accepted that this is how the court, seized with a question of confiscation, should approach its task. In my view this concession was rightly made.
In agreement with the unanimous views of the Court of Human Rights in Phillips v United Kingdom (Application No 41087/98) 5 July 2001 I would hold that Part VI of the 1988 Act is a proportionate response to the problem which it addresses.”
27. The 1988 Convention, to which the United Kingdom is a party, states in Article 5 that:
“1. Each Party shall adopt such measures as may be necessary to enable confiscation of:
a) Proceeds derived from offences established in accordance with article 3, paragraph 1, or property the value of which corresponds to that of such proceeds;
b) Narcotic drugs and psychotropic substances, materials and equipment or other instrumentalities used in or intended for use in any manner in offences established in accordance with article 3, paragraph 1.
2. Each Party shall also adopt such measures as may be necessary to enable its competent authorities to identify, trace, and freeze or seize proceeds, property, instrumentalities or any other things referred to in paragraph 1 of this article, for the purpose of eventual confiscation.
...
7. Each Party may consider ensuring that the onus of proof be reversed regarding the lawful origin of alleged proceeds or other property liable to confiscation, to the extent that such action is consistent with the principles of its domestic law and with the nature of the judicial and other proceedings.
8. The provisions of this article shall not be construed as prejudicing the rights of bona fide third parties.
9. Nothing contained in this article shall affect the principle that the measures to which it refers shall be defined and implemented in accordance with and subject to the provisions of the domestic law of a Party.”
28. The above Convention, which entered into force in September 1993, aimed to facilitate international co-operation and mutual assistance in investigating crime and tracking down, seizing and confiscating the proceeds thereof. Parties undertake in particular to criminalise the laundering of the proceeds of crime and to confiscate instrumentalities and proceeds (or property the value of which corresponds to such proceeds).
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-85689
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF TETSEN v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial;Violation of Article 1 of Protocol No. 1 - Protection of property
JUDGES: Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens
TEXT: 5. The applicant was born in 1979 and lives in Vizinga in the Komi Republic.
6. From 14 June 2001 to 31 July 2003 the applicant was employed in the military commander’s office in the Chechen Republic. On the commander’s orders, he took part in counter-terrorist operations. For his participation he was paid an additional compensation of 55,807.70 Russian roubles (RUB) for a period of eighty-five days.
7. The applicant applied to a court, claiming that the additional compensation should be paid for the entire duration of his employment in the military commander’s office. He submitted original employment contracts and orders signed by the military commander.
8. The military commander’s office did not send a representative to take part in the proceedings and asked the court to hear the case in his absence.
9. On 25 August 2003 the Military Court of the Rostov-on-Don Garrison accepted the applicant’s claim and awarded him RUB 444,965.37 against the military commander of the Chechen Republic.
10. No appeal having been lodged against the judgment, it became enforceable ten days later.
11. On 6 September 2003 the applicant obtained a writ of execution and submitted it to the Ministry of Finance.
12. On 23 August 2005 a representative of the military commander’s office asked the Military Court of the Rostov-on-Don Garrison to quash the judgment of 25 August 2003 on account of newly discovered circumstances. He claimed that it had been founded on “unreliable evidence” (недостоверные доказательства).
13. By decision of 20 October 2005, a judge of the Military Court of the Rostov-on-Don Garrison set aside the judgment of 25 August 2003 on account of newly discovered circumstances. The parties did not make available a copy of that decision to the Court. According to the applicant, it did not specify why the evidence in the original judgment was considered “unreliable”. The Government indicated that it was unreliable because “the applicant’s calculations of the indebtedness [had] had no legal effect”.
14. In the re-opened proceedings the applicant’s claims were rejected in full. Copies of these judgments were not made available to the Court.
VIOLATED_ARTICLES: 6
P1
VIOLATED_PARAGRAPHS: P1-1


ITEMID: 001-75577
LANGUAGEISOCODE: ENG
RESPONDENT: SVN
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF STAKNE v. SLOVENIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Violation of Art. 13;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
JUDGES: David Thór Björgvinsson;John Hedigan
TEXT: 5. The applicant was born in 1965 and lives in Vransko.
6. On 15 April 1997 the applicant was injured in a car accident. The perpetrator of the accident had taken out insurance with the insurance company ZM.
7. On 15 January 1998 the applicant instituted civil proceedings against ZM in the Celje District Court (Okrožno sodišče v Celju) seeking damages in the amount of 2,017,819 Slovenian tolars (approximately 8,410 euros) for the injuries sustained.
Between 1 September 1998 and 29 October 2001 the applicant lodged six preliminary written submissions and/or adduced evidence.
Between 4 March 1999 and 7 June 2000 she made four requests that a date be set for a hearing.
Of the two hearings held on 25 September 2000 and 29 October 2001, neither was adjourned at the request of the applicant.
During the proceedings the court appointed three medical experts.
At the last hearing the court decided to deliver a written judgment. The judgment, upholding the applicant’s claim in part, was served on the applicant on 17 December 2001.
8. On 19 December 2001 the applicant appealed to the Celje Higher Court (Višje sodišče v Celju).
On 2 April 2003 the court allowed the applicant’s appeal in part and accordingly increased the damages awarded.
The judgment was served on the applicant on 23 April 2003.
9. On 24 April 2003 the applicant lodged an appeal on points of law with the Supreme Court (Vrhovno sodišče).
On 13 October 2004 the court dismissed the applicant’s appeal.
The judgment was served on the applicant on 25 November 2004.
VIOLATED_ARTICLES: 13
6
VIOLATED_PARAGRAPHS: 6-1