ITEMID: 001-83120
LANGUAGEISOCODE: ENG
RESPONDENT: HRV
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF STITIC v. CROATIA
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);No violation of Article 3 - Prohibition of torture (Article 3 - Inhuman treatment;Positive obligations) (Substantive aspect);No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for correspondence);Violation of Article 13 - Right to an effective remedy
JUDGES: Christos Rozakis
TEXT: 5. The applicant was born in 1967 and is presently serving a prison term in Šibenik Prison.
6. Following a series of criminal convictions for drug abuse, the applicant was sent to serve the sentence in Lepoglava State Prison (Kazneni zavod Lepoglava) on 11 November 2002. On 29 July 2004 he was transferred to Gospić Prison.
7. While the applicant was serving a prison term in Lepoglava State Prison, the prison authorities instituted disciplinary proceedings against him on an unspecified date. The hearings were held on 10 and 13 October 2003. Both the applicant and his counsel were present at the hearings. The applicant and four witnesses gave evidence in person. In the Head of the Disciplinary Proceedings' decision of 14 October 2003 it was established that on 19 July 2003 the applicant had held closed the door of cell no. 9 and had thus prevented a member of the prison staff from entering the cell and performing his duties. The applicant's conduct was found to be in breach of section 145 § 3(10) of the Enforcement of Prison Sentences Act (Zakon o izvršavanju kazne zatvora) and he was sentenced to seven days' solitary confinement suspended for three months. The decision was served on the applicant on 17 October 2003 at 2.45 p.m. It was also served on his counsel on an unspecified date. The applicant's counsel lodged an appeal against the decision on Monday, 20 October 2003.
8. In a decision of 27 October 2003 the Varaždin County Court judge responsible for the execution of sentences declared the appeal inadmissible as being out of time. The judge held that the time-limit for an appeal was forty-eight hours and that the time-limit had expired on 19 October 2003 at 2.45 p.m. despite the fact that this day had been a Sunday. The time-limit could not be extended to the first working day, since it had been fixed in hours.
9. During his stay in Gospić Prison the prison authorities opened disciplinary proceedings against the applicant. The prison authorities found that on 16 August 2004 the applicant had attempted to smuggle illegal drugs into the prison via a letter sent to him by his girlfriend, which constituted a disciplinary offence under section 145 (3)(11) of the Enforcement of Prison Sentences Act. In his decision of 2 November 2004 the Head of Disciplinary Proceedings imposed on the applicant a disciplinary measure consisting of a restriction on his movement inside the prison and frequent contacts with the outside world for a period of three months, including a ban on receiving postal parcels, starting from 2 November 2004.
10. In an appeal of 16 November 2004 the applicant, inter alia, alleged that he had not attended the final hearing before the prison disciplinary authorities because his lawyer had not been present. The applicant also alleged that the notes of that hearing had not been served on him. He further stated that his counsel would elaborate on these issues in a separate appeal. On 16 November 2004 counsel lodged a separate appeal whereby he contested the findings of the applicant's guilt and the severity of the disciplinary measure imposed. On 18 November 2004 the Gospić County Court judge responsible for the execution of sentences dismissed the appeal. The decision analysed in some detail the evidence presented in the disciplinary proceedings but made no mention of the procedural defects complained of by the applicant.
11. The applicant submitted that he had firstly been put in cell no. 5 in Unit 1. However, later on he had been moved to Unit 2. He alleged that the room had been very damp, and the mattresses old and torn so that bare wire stuck out. The bed sheets and pillowcases had been dirty and the blankets old and foul smelling. No daylight entered the cell and the electric light had to be switched on all day. He had been locked in his cell for twenty-one hours per day, with no contact with other prisoners or the outside world. He had been allowed two one-hour walks and one hour of exercise in a gym per day, both without the presence of any other prisoner. The rest of the time he had had to spend locked alone in his cell. He had not had regular access to a bathroom or running water and his access to sanitary facilities had been left to the discretion of the prison guards. The heating had been inadequate and the food of low quality. No toiletries had been provided to the applicant and no permanent doctor had been on duty in the prison. Only one doctor (a paediatrician) had come once in a while for an hour at a time.
12. According to the Government, the main building of the Gospić Prison was built in 1878 and renovated in 1995. It comprised two units. The first (“Unit 1”) consisted of five-bed cells and the other (“Unit 2”) of two-bed cells, each equipped with a toilet. Inmates shared a communal bathroom. Unit 1 had a communal living-room. Disinfection and rat extermination were performed regularly. Inmates' clothes and bed sheets could be washed in the prison laundry every day. The bed sheets were changed once a week.
13. On 29 July 2004 the applicant had arrived at Gospić Prison. He had been put in Unit 1, under the “semi-open” prison regime until 24 September 2004 when he had been moved to Unit 2, under a higher security regime, to a cell measuring 3.75 x 3.5 metres and sanitary facilities measuring 2 x 1.6 metres, which he had shared with another inmate. In November 2005 he had been moved back to Unit 1 to a cell measuring 7.15 x 3.7 metres with sanitary facilities measuring 1.6 x 1.5 metres, which he had shared with three to four inmates at times. He had stayed there until 17 March 2006 when he had been moved back to Unit 2 due to an incident involving a fight with another inmate. He had stayed there until May 2006 when he had been transferred to Pula Prison. During his stay in Unit 2 the applicant had been locked in his cell save for one hour in the mornings when he had been allowed to go out in the courtyard and for two hours between 8 and 10 p.m. when he had been allowed to watch television, read or play games in a common room. During his stay in Unit 1 the applicant worked for four hours per day.
14. According to the applicant, on 17 March 2005 he had been injured by another prisoner who had struck him twice on the head. He had been taken to a doctor to whom he had complained of general sickness, dizziness and heavy thirst. However, the doctor had only prescribed painkillers and had not made any further examinations. The applicant had asked that an X-ray examination be carried out at his own expense, but this had been refused. He further alleged that he had a bruise under his left eye.
15. According to the Government the applicant had been seen by the prison doctor the very same day and the following day. The doctor had prescribed painkillers. Following the applicant's further complaints of backache, he had been taken to the Gospić General Hospital and seen by a specialist. An X-ray examination had been carried out but no fractures had been identified. The applicant had been prescribed further painkillers to be taken orally and a soothing gel. The Government submitted a copy of the medical report from the Gospić General Hospital to confirm their submissions.
16. On 14 September 2004 the applicant petitioned the Gospić County Court judge responsible for the execution of sentences, complaining about the prison conditions and also alleging that a postal parcel sent to him by his parents on 30 August 2004, containing three cartons of cigarettes, two magazines on motor cars and one notebook, had never been delivered but had instead been returned to his parents, who had informed the applicant about it.
17. On 21 September 2004 the judge requested the Gospić Prison authorities to comment on the complaint concerning the alleged non-delivery of the parcel. In his letter to the prison authorities of 24 September 2004, the judge noted that a prison governor was allowed to temporarily prohibit a prisoner from receiving parcels for health and security reasons and that the prisoner in question should be informed about such a decision and the reasons for it. The applicant received a copy of the letter.
18. The applicant again petitioned the Gospić County Court judge responsible for the execution of sentences on 21 October 2004, repeating his complaints about the prison conditions and further asserting that six to eight letters he had sent to various persons had never been delivered. The judge replied to the applicant's allegations by letter of 8 November 2004 stating that the Gospić Prison authorities had informed him that all his letters had been properly forwarded and instructed the applicant to send future letters via registered mail only. As to the applicant's complaints concerning the prison conditions, the judge expressly stated that he had no jurisdiction to supervise the running of prisons.
19. Following the incident of 17 March 2006, the applicant was moved back to Unit 2, and the Prison Governor ordered that disciplinary proceedings be instituted against him. On an unspecified date the applicant appealed against that decision, alleging that he had been attacked by another inmate who had struck him twice on the head. The applicant further complained that the medical assistance provided to him had been insufficient since the doctor had only prescribed him painkillers and had not made any further examinations. His request that an X-ray examination be carried out at his own expense had been refused. On 23 March 2006 the Gospić County Court judge responsible for the execution of sentences dismissed the applicant's appeal on the ground that the decision to place the applicant under the “closed prison regime” had been based in law and was a consequence of his conduct, which had endangered the order and security in the prison. No comment was made about the applicant's allegations concerning the lack of adequate medical assistance.
20. The applicant appealed against the judge's decision on 27 March 2006 to a three-judge panel of the Gospić County Court. In his appeal he complained about the conditions in Unit 2 (see paragraph 11 above). The panel dismissed the applicant's appeal on 28 March 2006 on the ground that the only way to prevent further unacceptable behaviour on his part had been his isolation. They made no remarks concerning the applicant's complaint about the conditions in Unit 2.
21. Article 23 of the Croatian Constitution (Ustav Republike Hrvatske) provides:
“No one shall be subjected to any form of ill-treatment ...”
22. The Enforcement of Prison Sentences Act (Zakon o izvršavanju kazne zatvora, Official Gazette no. 128/1999 of 30 November 1999, and no. 190/2003 of 3 December 2003 (consolidated text) – “the Act”) came into force on 1 July 2001, whereas the provisions concerning the judge responsible for the execution of sentences came into force six months later, on 1 January 2002. The relevant provisions of the Act read as follows:
“(1) Inmates shall have the right to complain about an act or decision of a prison employee.
(2) Complaints shall be lodged orally or in writing with a prison governor, a judge responsible for the execution of sentences or the Head Office of the Prison Administration. Written complaints addressed to a judge responsible for the execution of sentences or the Head Office of the Prison Administration shall be submitted in an envelope which the prison authorities may not open ...”
“(1) An inmate may lodge a request for judicial protection against any acts or decisions unlawfully denying him, or limiting him in, any of the rights guaranteed by this Act.
(2) Requests for judicial protection shall be decided by the judge responsible for the execution of sentences.”
“...
(3) Objects suspected of being connected to a criminal offence shall be forfeited and a record thereof drawn up. These objects shall be handed over to the competent authority. Objects suspected of being designed to facilitate escape from a prison or endangering order and security and objects that may endanger health shall be forfeited, destroyed or handed over to the competent authority. A record of these acts shall be drawn up.”
“(1) The accommodation of inmates shall meet the required standards in terms of health, hygiene and space, including climatic conditions.
(2) Inmates shall as a general rule be accommodated in separate rooms ...
(3) Inmates' rooms shall be clean, dry and of adequate size. Each inmate shall have at least 4 square metres and 10 cubic metres of space in the room.
(4) Every room ... must have daylight and artificial light ...
(5) Penitentiaries and prisons must be equipped with sanitary facilities allowing inmates to meet their physiological needs in clean and adequate conditions, whenever they wish to do so.
(6) Inmates shall have drinking water at their disposal at all times.”
“(1) Inmates shall be provided with medical treatment and regular care for their physical and mental health ...”
“...
(2) A doctor shall examine a sick or injured inmate ... and undertake all measures necessary to prevent or cure the illness and to prevent deterioration of the inmate's health.”
“(1) An inmate has the right to seek a specialist examination if such an examination has not been ordered by a prison doctor.
...”
“(1) An inmate has the right to receive a postal parcel containing authorised items at least once a month and during public holidays.
(2) The sender shall enclose a list of contents with the parcel.
(3) The parcel shall be opened and examined by a prison official in the presence of the inmate concerned.
(4) Unauthorised, stale and dangerous items shall be treated in the manner prescribed by section 60 (3) of this Act.
(5) The Prison Governor may temporarily ban reception of parcels for reasons of health or safety, of which the inmate concerned shall be informed. The inmate has the right of appeal to a judge responsible for the execution of sentences. The appeal does not have suspensive effect.”
“...
(2) Minor disciplinary offences are:
...
10) preventing an official or any other person involved in the implementation of the programme of execution [of prison sentences] from performing their duties;
...
(3) Grave disciplinary offences are:
...
11) possession or intake of any narcotic or psychoactive substance;
...”
“(1) Disciplinary offences are punishable with disciplinary measures.
(3) Disciplinary measures are:
1) an admonition;
2) restriction or prohibition on using money inside the prison for up to three months;
3) restriction or temporary deprivation of some or all privileges enumerated in sections 129 and 130 of this Act;
5) solitary confinement for up to twenty-one days during free time or during night and day;
...”
VIOLATED_ARTICLES: 13
3
NON_VIOLATED_ARTICLES: 3
8
NON_VIOLATED_PARAGRAPHS: 8-1


ITEMID: 001-4527
LANGUAGEISOCODE: ENG
RESPONDENT: CHE
BRANCH: ADMISSIBILITY
DATE: 1999
DOCNAME: BIFL v. SWITZERLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Christos Rozakis
TEXT: The applicant, a German citizen born in 1961, is a businessman residing in Freiburg in Germany. Before the Court he is represented by Ms C. Triebel, a lawyer practising in Schluchsee in Germany.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 13 May 1993 at approximately 11h00, the applicant was driving on a motorway in Switzerland in the direction of Basle. At one stage, when driving on the left lane, he noted a neutral car behind him which kept coming up towards him and then falling back again. The applicant felt endangered; as he could not move to the right lane, he decided to accelerate, though the car behind him did the same. Eventually, the applicant was able to move to the right lane and then leave the motorway at the next exit. Still the car followed him. It suddenly overtook him and the co-driver held a police-signal out of the window, ordering him to stop.
The applicant stopped and realised that the persons in the car were two policemen. He was accompanied to a motorway stop where he was told that he had exceeded the speed limit of 120 km/h by an average of 43,51 km/h and that he would be fined 500 Swiss Francs (CHF). The applicant was shown a video film of his driving which the policemen had recorded from their car while following him. The applicant pointed out that he had been followed for a longer period of time; originally he had driven at 135 km/h and had been pressed by the car to drive more quickly. The police replied that they had had to follow him for a certain stretch in order to obtain valid readings. The readings concerned a stretch of 1,6 km.
The applicant did not pay the fine and signed the police report.
On 14 June 1993 the Rheinfelden District Office (Bezirksamt) issued a penal order (Strafbefehl) sentencing the applicant to three days' imprisonment, suspended on probation, and a fine of 500 CHF for having exceeded the speed limit by 43,51 km/h.
Throughout the ensuing proceedings the applicant was represented by a lawyer.
Upon the applicant's objection, the Rheinfelden Public Prosecutor's Office (Staatsanwaltschaft) requested the Rheinfelden District Court (Bezirksgericht) to punish the applicant with three days' imprisonment and a fine of 800 CHF.
On 30 August 1993 the Court summoned the applicant and police officer B. (the co-driver) to the trial. The invitation was sent to the applicant's previous address in Freiburg in Germany by means of letters rogatory (Rechtshilfeersuchen), though the invitation could not be served as the applicant had meanwhile moved to Berlin.
At the hearing on 1 December 1993 the applicant was absent, and considered not to have provided an excuse herefor. At the hearing police officer B. was heard, explaining inter alia the video-system used, his experience in such matters, and that the applicant had driven at 135 km/h. The police officer submitted twelve photos which were taken from the video film. The photos register inter alia the speed of the applicant’s car. On eleven photos there is a distance of approximately 100 m between the applicant and the police car, often with ample free space on the right lane on the motorway; and on the twelfth and last picture the police car had come closer to the applicant’s car in order to film the applicant’s number plate.
At the hearing, hand written minutes of police officer B. were submitted according to which the applicant had overtaken the police car at a speed of just below 120 km/h. The minutes also noted: "he has allegedly been chased by the police" ("er sei durch Pol. gejagt worden"). This statement was apparently not included in the subsequent typed minutes of the hearing.
The summons to the applicant for a new hearing on 9 March 1994 could not be served on him either.
On 23 March 1994 the District Court President issued a warrant of arrest against the applicant in order "to secure his presence at the trial" ("Sicherung der Hauptverhandlung"). The applicant was arrested on 15 April 1994 when entering Switzerland. He then withdrew his objection against the penal order of 14 June 1993. As a result, the District Court struck the case off its list.
The applicant filed an appeal which was upheld by the Court of Appeal (Obergericht) of the Canton of Aargau on 10 August 1994 which found, inter alia, that the applicant had not been absent at the hearing of 1 December 1993 by his own fault.
Proceedings were resumed before the Rheinfelden District Court which fixed a new trial for 14 December 1994. As the applicant only received the invitation on 13 December, a new hearing was fixed for 8 March 1995. The applicant challenged the President of the District Court, whereupon the Deputy President presided.
At the hearing, the applicant unsuccessfully requested to question the second police officer (the driver) and to be shown the entire video film.
On 8 March 1995 the District Court sentenced the applicant to three days' imprisonment, suspended on probation, and a fine of 800 CHF. In its decision the Court found that the video film clearly demonstrated the excess in speed, and there was no indication that the registration system was faulty. In view thereof and of B.'s statement of 1 December 1993, the Court refused to hear the other police officer. The Court also found that the applicant, who alleged that he had been pressed by the police, had been able to comment on B.'s statements.
On 21 March 1995 the applicant challenged the Deputy District Court President in view of the manner in which he had conducted the proceedings.
On 12 September 1995 the applicant filed an appeal in which he requested, inter alia, to be shown the entire video film leading to his conviction, and to be able to put questions to both police officers.
The appeal was dismissed by the Court of Appeal of the Canton of Aargau on 21 November 1995. The Court, which had the competence to decide on both the factual and legal issues of the case, relied in its decision, inter alia, on statements of police officer B. as to the events. The Court found that one particular statement of B. was an incorrect assessment, namely that a police car regularly drove 500 m behind a car when the speed exceeded 100 km/h; in fact the pictures demonstrated that the police had driven approximately 100 m behind the applicant.
In respect of the applicant's requests for the taking of evidence, the Court of Appeal found that the applicant had been shown twelve pictures of the video film which sufficed to demonstrate that he had exceeded the speed limit, and that he had not been pressed by the police. The gaps of some two to five seconds between the pictures were too short to prove otherwise. For the same reason the police officers need not be heard, and their statements would not alter the Court's opinion. Indeed, even if the police had pressed the applicant, this would not justify the excess in speed. In any event, police officer B. had been heard, and his statement had been shown to the applicant.
The applicant’s public law appeal (staatsrechtliche Beschwerde) and plea of nullity (Nichtigkeitsbeschwerde) were dismissed by the Federal Court on 18 March 1996, the decision being served on 25 March 1996. In its decision the Court found that the applicant had not shown that the Court of Appeal had acted arbitrarily. Thus, even if it was accepted that the police car had pressed him by coming up towards him and falling back again this would not help him, as he would then have had periods where he would have reduced his speed. In respect of the applicant's complaint about the alleged bias of the Rheinfelden District Court, the Federal Court found that the decision of the Court of Appeal would have healed any such shortcoming.
Under the headline "disciplinary punishment", the Federal Court stated that the applicant's appeals clearly lacked prospects of success in view of the convincing reasons given by the Court of Appeal of the Canton of Aargau in its decision. The decision continues:
<Translation>
"The long-winded statements in his plea of nullity and in large parts also in his public law appeal are not reasonable. The applicant's representative shall therefore be admonished in accordance with S. 31 (1) of the Federal Judiciary Act."


ITEMID: 001-68538
LANGUAGEISOCODE: ENG
RESPONDENT: NLD
BRANCH: ADMISSIBILITY
DATE: 2005
DOCNAME: KUIJPER v. THE NETHERLANDS
IMPORTANCE: 3
CONCLUSION: Inadmissible
TEXT: The applicant, Mrs Trijntje Kuijper, is a Netherlands national, who was born in 1950 and lives in Alexandria (USA). She is represented before the Court by Mr A.W.M. Willems, a lawyer practising in Amsterdam. The respondent Government are represented by their Agent, Mr. R.A.A. Böcker, of the Netherlands Ministry of Foreign Affairs.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 12 October 1979 the applicant married Mr Z. and, on 4 November 1980, their daughter X was born. In February 1985, the applicant and Mr Z. separated and, on 2 April 1986, the Almelo Regional Court (arrondissementsrechtbank) pronounced their divorce.
When they separated in February 1985, the applicant and Mr Z. had agreed that it was best for X if she stayed with her father. The applicant moved to Amsterdam, which lies at a distance of about 150 kilometres from Almelo where Mr Z. and X continued to live. On the basis of an arrangement, the applicant had access to X for a total period of five weeks in 1985.
In its decision of 16 June 1986 and in accordance with the parents' wishes, the Almelo Regional Court entrusted Mr Z. with X's care and custody and appointed the applicant as X's auxiliary guardian (toeziend voogdes). At an unspecified date in 1986, the applicant moved from the Netherlands to the United Kingdom where she joined her new partner Mr Norris. During the summer of 1986 the applicant and X spent a total of four weeks together in the United Kingdom. Since 1986, there has been little contact between the applicant and X.
On 28 December 1988 Mr Z. married his new partner, Mrs Janssen, who was born in 1966, with whom he and X had cohabited since September 1985. Two children were born out of their marriage.
In May 1992 the applicant returned to the Netherlands, where she settled in Amersfoort, which lies at a distance of about 100 kilometres from Almelo. Mr Z. informed the applicant, who then wished to intensify her contact with X, that the latter did not wish to have any contacts with the applicant anymore.
The applicant's auxiliary guardianship ended on 2 November 1995, when an amendment to the Civil Code entered into force abolishing the institution of auxiliary guardianship.
In 1996, the applicant married her new partner Mr Norris and, together with him, moved from the Netherlands to the United States of America where they are currently still residing.
On 25 March 1998, about seven months before X was to come of age and shortly before the entry into force of an amendment to several relevant provisions of the Civil Code (Burgerlijk Wetboek) (see below), Mr Z. and Mrs Janssen filed a request with the Almelo Regional Court for X's adoption by her stepmother Mrs Janssen. They submitted that, since 1985, they had jointly provided for X's care and education, that X did not have any contacts with the applicant and that X fully supported the adoption request.
In July 1998, the applicant informed the Regional Court that she objected to X's adoption by Mrs Janssen. She submitted inter alia that the fact that X supported the adoption request and that there had not been any contacts between her and X for a certain period of time did not justify severing the legally recognised family tie between them. In the applicant's opinion, to sever a legally recognised family tie would only be justified in cases where a child had nothing to expect from the mother anymore.
On 15 September 1998, Mr Z. and Mrs Janssen submitted a copy of a letter of 8 September 1998 by a social worker to the Regional Court. In so far as relevant, this letter reads:
“Additional information for the purposes of the adoption request of X Z.
This report has been prepared by ... social worker ..., at X's request.
At the end of April this year, X contacted the social aid services, in May the provision of assistance started.
It appears from conversations that X feels no joy in her life, she feels down and listless, insecure, cannot /dares not take initiatives.
For these complaints of depression (which she has already been experiencing for a number of years, at times less at times more, as she says) I advised her to contact her general practitioner.
My impressions of X:
She comes across as an intelligent young woman, with a certain spontaneity where it concerns less difficult matters; she has the tendency to speak in a more rational manner where it concerns more personal matters. She finds it difficult to show her emotions. She has difficulties in trusting [others] and has little self-confidence.
In her personal history the following points of particular interest appear which, in my opinion, are co-determinant for her lack of confidence:
after the divorce [which occurred] when she was four, X describes a toilsome access arrangement with her biological mother, whom X calls Trix (Carmen is emotionally her mother, says X, “She has taught me everything”.)
X perceives the contact with her biological mother as not close. When X gets a bit older, the need increases to discuss the bad contact as she perceives it, in the hope of being able to come closer to each other.
She discovers that that does not succeed. According to X, her biological mother cannot / does not want to look at herself, sees no own part in the problems and blames others.
She wants to keep the contact “cosy” [amicable and without complicating matters], says X.
X finds that her biological mother does not really love her; this often gives her the feeling that she is not valuable enough to be loved.
Another cause of her lack of self-confidence is, in my opinion, her hearing impairment. Owing to this [impairment] she only started attending [regular] primary school as from Group 7 [at the age of 10-11]. The transition from the school for the hearing-impaired to a regular primary school was [a] big [change], she says. She was picked on there, as well as in the beginning of secondary school.
Concluding:
On the basis of my opinion that complaints of depression have a deeper cause than that of people paying insufficient attention to their own needs, I have found it appropriate to support X in this procedure by way of this letter.
Despite her insecurities in life, I note that this adoption request is a conscious decision of hers, about which she has clearly reflected.
When I ask X, “Why this radical measure?”, she says she is not acting out of rancour. There appears to be a deep-rooted resistance to the possibility that her biological mother can still exercise an influence on her life, but more important a great need for security and recognition if Carmen becomes her legal mother.
I do not feel competent in my function as a social worker to state anything diagnostically as to the possible “harm suffered” by X.
My advice is to carry out a further examination on this point, for instance a psychological examination by the Regional Institute for Mental Health Care (RIAGG), before deciding the matter.”
On 17 September 1998, in the course of a hearing held in private, the Regional Court examined the adoption request. It heard the parties' arguments. It further heard X on the adoption request.
In its decision of 21 October 1998, overruling the applicant's objection, the Almelo Regional Court granted the request for X's adoption.
As to the applicant's objection, the Regional Court held that she had insufficiently taken into consideration the manner in which her daughter had developed over the past years and had insufficiently realised that X's interests in being adopted should prevail over her own interests. In that light, it considered that the applicant's objection was to be regarded as a slight form of misfeasance (misbruik van recht; i.e. an abusive use of a right).
The applicant's appeal against the decision of 21 October 1998 to the Arnhem Court of Appeal (gerechtshof) was examined at a hearing held on 16 February 1999. X, who was heard before the Court of Appeal during that hearing, made the following statement:
“This is a picture of the family to which I belong. That is what it is all about. I consider my stepmother as my mother. I really want the adoption very much. The contact with my biological mother is just not right. Sometimes she wants me and then again not. She did try to do nice things with me but I was always only briefly there. I have never understood why she did not want to see me regularly. When she finally returned to the Netherlands seven years had passed. Then it did not work out anymore. I do not have the feeling that she takes me seriously. I have sought contact with her in 1996. Then she did not want to answer questions which I had. The same thing happened when we spoke over the telephone in 1998 in connection with the filing of the adoption request. The contact that I have with Carmen [X's stepmother] is the most important. I just feel that way. She was already there as from my fourth year. There is a strong bond between us. She has taught me to speak with my hearing disability and has taught me how to ride a bicycle. I do understand why my biological mother disagrees with the adoption request. I have things sorted out much better now. I have also been able to do that because I fight for my interests. At school things are now also better. I realise that the adoption will not change things very much but I want to show that Carmen is my real mother. [Emotionally speaking,] I have taken leave from my biological mother already a long time ago. This adoption is a confirmation of that. I have severed the ties with my biological mother a long time ago. Now I want to express, also in a legal sense, the connection I feel with Carmen. I have no contact any more with my maternal family. I have often tried to have a serious conversation with my biological mother but she just wanted to keep things on a cosy [superficial] level. For the rest, I refer to what I have put in writing.”
On 16 March 1999, the Court of Appeal rejected the applicant's appeal and upheld the Regional Court's decision of 21 October 1998. This ruling, in so far as relevant reads:
“2.4 The Court of Appeal has noted ... a written statement by X. ...
4.3 The court agrees with Mr Z. and Mrs Janssen that the requested adoption is in the apparent interests of X.
4.4 In this finding, the court takes into account that X, also noting her age, has nothing to expect anymore from [the applicant] as regards care and education. It further takes into account the long period during which X has been cared for and educated by Mr Z. and Mrs Janssen, as well as X's explicit agreement with the adoption request and her reasoned statement on this point.
4.5 It appears from her statement made before the court, as well as from her written statement referred to in 2.4, that X considers Mrs Janssen as her sole mother and that already for some considerable time – in any event since 1991 or 1992 – this has been the case. According to X, she then broke off ties with [the applicant] because the latter was, in X's opinion, not prepared to have or capable of having anything other than superficial contact with her. In or around 1996 X did, according to her statement, seek contact one more time with [the applicant]. That meeting also resulted, according to X, in disappointment, because once more she did not feel she was being taken seriously. The last experience was during a telephone conversation she had with [the applicant] in 1998 in connection with the filing of the adoption request. [The applicant] has not disputed X's statement on this point.
4.6 As already mentioned above, X considers Mrs Janssen as her mother, because she has taught her to speak – X having been unable to do so [for a long period] owing to her hearing impairment – and to ride a bicycle, and has always supported her. In short, X wishes that, in addition to the existing de facto family unit tie (gezinsband) between Mrs Janssen – and the two children born out of the marriage between Mr Z. and Mrs Janssen – and herself, a legal tie is also to be established by which their mutual relation is also legally confirmed.”
4.7 Unlike [the applicant] – who contends that X has incurred emotional problems as a result of the filing of the adoption request – the court accepts that, already prior to the filing of this request, X had contacted a social worker in order to, in her own words, talk about her feelings, and it was thus not the filing of the adoption request as such which caused her to be emotionally burdened. On this point X has declared that those feelings of frustration and anger had already existed a long time and had, according to her, been caused by [the applicant's] incapacity or unwillingness to have a more than mere superficial contact with X. She further felt that she had never been taken seriously by [the applicant] in her wish to obtain answers to questions she had.
4.8 The above does not lead to a different finding as to X's apparent interest in the requested adoption and does not entail that the court, for the determination of the case, requires further information from an expert on X's interest in the adoption by Mr Z. and Mrs Janssen.
4.9 The [applicant's] right of veto, which she invokes, under Article 1:228 § 2 of the Civil Code is only limited by the legal rule that a power cannot be invoked when it is being abused.
4.10 [The applicant] submits that, in exercising her right of veto, she is led by X's interests. According to [the applicant] it is in X's interests, in particular as regards her identity, that a legally recognised family tie between her and X remains in existence. If adoption were to be pronounced, X would be confirmed in her incorrect opinion that she has a bad mother who has left her. That cannot be in her interests.
4.11 Although the court, noting [the applicant's] own statement made at the oral hearing on appeal, assumes that [the applicant] wishes the best for X, and that the absence of a close contact between them is a result of the absence of regular contacts between them – which has also been caused by [the applicant's] stay in England for the period from 1986 to 1992 –, it does not subscribe to the interest advanced by [the applicant] in exercising the right of veto. In this respect it refers to the above considerations as to X's apparent interests in the adoption by Mr Z. and Mrs Janssen.
4.12 The veto expressed by [the applicant] will be disregarded by the court. In the court's opinion, [the applicant] abuses her power to exercise this right because [the applicant], taking into account the disproportionality between the interest advanced by [the applicant] in exercising her [veto] power and X's interest in adoption by Mr Z. and Mrs Janssen which is harmed by the exercise of that [veto] power, in all reasonableness should not have exercised that power. In the assessment of X's interest in being adopted by Mr Z. and Mrs Janssen, the court takes particularly into account that X – who was only four years old when Mr Z. and Mrs Janssen started to cohabit and who turned eighteen in November 1998 – has for a long time has been cared for and educated by Mr Z. and Mrs Janssen jointly.”
The applicant filed an appeal in cassation with the Supreme Court (Hoge Raad) in which she raised three complaints, namely that the Court of Appeal had failed to take into account her arguments as regards the question whether the adoption would be in X's interest, that the Court of Appeal had given insufficient reasons for rejecting her request to obtain a further expert opinion and for its finding that X had already contacted a social worker before the adoption request had been filed, and lastly that the Court of Appeal had unjustly concluded that her reliance on her right of veto constituted a misfeasance.
In its decision of 19 May 2000, the Supreme Court rejected the applicant's appeal in cassation, holding:
3.3 [The first complaint] fails, because it lacks a factual basis. As appears from its legal considerations under 4.10 and 4.11 [in its ruling of 16 March 1999], the Court of Appeal has, unlike what is asserted [in this complaint], examined and rejected the mother's arguments.
3.4 [The second complaint] is that the rejection of the mother's request to involve an expert is incomprehensible and insufficiently reasoned, and that the same applies to the consideration in which the Court of Appeal finds that X, already before the filing of the adoption request, had contacted a social worker.
It is left to the insight of the judge hearing the facts of the case to decide whether he finds it necessary to obtain further expert information. That is why the first [limb of this] complaint fails.
On grounds of X's statement referred to in its legal consideration under 4.7, the Court of Appeal accepted that X, already before the filing of the adoption request, had emotional problems. On that ground the second [limb of this] complaint fails.
3.5 [The third complaint] is about the finding of the Court of Appeal that the mother has abused her right of veto.
In the examination of this part, the following must be put first. Although the right of veto has been allocated to the other parent because adoption would entail, for him, the far-reaching consequence of the termination of the existing legally recognised family tie between him and the child, the other parent should, in exercising this right, attach great weight to the interest of the child. Furthermore, as a rule the interest of the child in being adopted by the adoptive parents increases the longer it has been cared for and educated by them (Hoge Raad, 20 May 1994, nr. 8409, NJ 1994, 626).
By finding, on the grounds set out in its legal consideration 4.12, that the mother abused her right of veto, the legal opinion of the Court of Appeal has not therefore been shown to have been incorrect. That opinion is also not incomprehensible or insufficiently reasoned. For the remainder it cannot, being interwoven as it is with assessments of a factual nature, be further examined on its correctness in cassation proceedings.”
This ruling by the Supreme Court was published in the Netherlands Law Reports (Nederlandse Jurisprudentie – “NJ”) 2000, no. 455.
Article 1:227 § 2 of the Civil Code, as in force at the material time, provided:
“The [adoption] request may be granted only if the adoption fulfils the conditions laid down in Article 228, and if it is in the interests of the child as regards both the severance of its ties with its parents and the affirmation of its ties with the adopters, or, in the event of the adoption of a child who is the legitimate or natural child of one of the petitioners, as regards the severance of ties with the second parent and the affirmation of its ties with the step-parent.”
The relevant part of Article 1:228 of the Civil Code, as in force at the material time, read:
“1. Adoption shall be subject to the following conditions: ...
(d) that the [adoption] request is not opposed by either parent having a legally recognised family tie with the child. Nevertheless the court shall not be obliged to refuse a request opposed by a parent who was summoned more than two years previously to be heard on a similar request by the same petitioners that was rejected, although the conditions laid down in paragraphs (e) to (g) below were satisfied; ...
2. ... If the child is the legitimate child of one of the petitioners, the provisions of paragraph 1 (d) shall be disregarded; instead, adoption shall be subject to the condition that the request has not been contested by a former spouse who has a legally recognised family tie with the child and whose marriage to the spouse of the stepparent was dissolved ... [by divorce or dissolution of the marriage after judicial separation].”
Under the Supreme Court's case-law in respect of Article 1:228 of the Civil Code, the effective right of veto which this provision gave the legal parent could be overridden if his or her objection to the adoption request constituted a misfeasance (misbruik van bevoegdheid), a notion defined in Article 3:13 of the Civil Code which provision, pursuant to Article 3:15 of the Civil Code, does not only apply to property law but also to other areas.
Article 3:13 of the Civil Code provides:
“1. A right may not be exercised by the holder if in doing so it is abused.
2. A right is abused inter alia if it is exercised with the sole intention of harming another or for a purpose other than that for which it was granted, or if – in view of the disproportion between the interest to be served and that which is damaged – the decision to exercise that right could not reasonably have been taken.
3. A right may be inherently incapable of being abused.”
In a decision taken on 25 February 1994, the Supreme Court accepted as correct the trial court's finding that a former spouse's reliance on the right of veto on the basis of a wish to preserve the still existing natural tie between him and his children did not constitute a misfeasance (see, Hoge Raad, NJ 1994, no. 437).
In a further decision taken on the same day, the Supreme Court accepted as correct the trial court's finding that a former spouse's reliance on the right of veto on the basis of a wish to preserve the still existing natural tie between her and her child in order to prevent the latter reproaching her in the future that, by not opposing the adoption request, she had herself contributed to that tie being lost, did not constitute a misfeasance (see, Hoge Raad, NJ 1994, no. 438).
In another case, the Supreme Court held on 20 May 1994 that the exercise of the right of veto should attach great weight to the interests of the child and that, furthermore, as a rule, the interests of the child in being adopted [by one of its own parents and a step-parent] increased the longer it had been cared for and educated [by those requesting adoption] (see, Hoge Raad, NJ 1994, no. 626).
In a decision taken on 27 October 2000, the Supreme Court rejected, as a misfeasance, the veto by a parent in respect of a requested adoption where the interests of the children in being adopted outweighed the appellant's interest in exercising his right of veto (see, Hoge Raad, NJ 2001, no. 104).
On 1 April 1998, the Act of 24 December 1997 on the revision of the law of descent and the regulation of adoption (Wet tot herziening van het afstammingsrecht alsmede van de regeling van adoptie) entered into force, amending inter alia Article 1:228 of the Civil Code. Pursuant to Article III § 1 of this Act, proceedings on adoption requests filed prior to 1 April 1998 were to be determined according to the legal rules in force until that date.
Under the new Article 1:228 § 1 (c) of the Civil Code, the adopting parent or both adopting parents must be at least 18 years older than the child whose adoption is requested. Article 1:228 § 1 (d) stipulates that an adoption request can only be granted if neither legal parent opposes the request. However, according to Article 1:228 § 2, the opposition by a legal parent can be overruled if the child and parent have not or hardly lived together as a family unit (gezinsverband); if the legal parent has abused his or her authority over the child or has grossly neglected its care and education, or if – in respect of the minor – the legal parent has been convicted of one of the offences defined in Sections XIII to XV and XVIII to XX of the Second Book of the Criminal Code (Wetboek van Strafrecht).
The Explanatory Memorandum on the bill, which eventually led to the enactment of this provision, makes it clear that the possibility to overrule a legal parent's opposition to adoption was possible only under very limited conditions, although it was explicitly stated that the Supreme Court's caselaw concerning misfeasance remained pertinent and, referring to Articles 3:13 and 3:15 of the Civil Code, that an opposition by a legal parent serving no other purpose than to harm another could already on that ground be overruled. It remained for the judge to assess whether or not in a concrete case a legal parent's opposition was to be overruled. In cases of adoption by a legal parent and a step-parent of a child whose care and education they had provided during a number of years, a large degree of reticence should be displayed in overruling opposition by a legal parent who has not been entrusted with the care and custody of the child. As, in general, there would be no serious grounds that would result in such a parent being deprived of parental authority, and often such a parent would have lived with the child as a family unit, it was considered preferable that, in such situations, more meaning be given to the factual relationship of care and education between the step-parent and the child by way of joint custody (medevoogdij), for example (Kamerstukken (Parliamentary Documents), session 1995-1996, 24,649 no. 3, pp. 14-15).
In a letter sent on 22 May 1997 to the Lower House of Parliament, containing replies to questions put by Members of the Lower House on the above bill, the Deputy Minister of Justice stated in relation to the proposed amendment of Article 2:228:
“Criticism has been expressed about step-parent adoption in literature and legal practice since the beginning of the 80s. This criticism concerns mainly the fact that step-parent adoption after divorce can be used to ban entirely from the life of the child the existence of the legal parent not entrusted with care and custody. There is further criticism about the artificial manner in which this adoption is regulated (one of the parents must indeed adopt his child). ... I have taken this criticism to heart. Step-parent adoption is not rendered impossible, but the conditions applicable to an “ordinary” adoption also apply to the step-parent adoption: the adopting step-parent must have cared for and educated the child for at least three years. Also the condition of the (minimum) difference in age applies. Furthermore, the same limited possibilities to overrule the opposition of a parent, as in the case of an “ordinary” adoption, are applicable. Finally, the Bill on the regulation of joint authority and joint custody is currently pending before the Upper House of Parliament. I hope and expect that these proposals, if they enter into force, will reduce the number of step-parent adoptions.”
The possibility of such joint custody (gezamelijk gezag) was introduced in the Civil Code (Article 1:253t) on 1 January 1998.


ITEMID: 001-97860
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF MERTER AND OTHERS v. TURKEY
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1
JUDGES: Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky
TEXT: 5. The first and second applicants were born in 1930 and 1953. The remaining applicants did not inform the Court of their dates of birth. They all live in Istanbul.
6. On 16 May 1951 the owner of the neighbouring plot of land (“the neighbour”) brought an action in the Istanbul Civil Court of First Instance against the applicants' ancestor, Ahmet Muhtar Merter, claiming that the actual area of his land exceeded the amount indicated in the land registry records. He further claimed that, since the actual boundaries were not clear between his and the neighbouring plot of land, the applicants' ancestor was interfering with his use of the property (men-i müdahale davası). He therefore requested the court to resolve this dispute by determining the correct boundaries between the plots of land and ordering the accurate registration thereof.
7. On 10 October 1954, as a result of the construction of a road passing through the land in question, the Cadastral Commission carried out a land survey in Bakırköy. The records concerning the plot in question were amended as a result of this exercise. Following this amendment, the plot in question was divided into nine different parts, namely, plots nos. 110, 113, 114, 115, 116, 117, 118, 119 and 168. Plot no. 113 was allocated as meadowland and registered in the name of the Treasury. It was decided that plots nos. 115, 116, 119 and 168 should be entered in the land register in the name of the applicants' ancestor and plots nos. 110, 114, 117 and 118 in the name of the neighbour. No dispute arose with regard to plot no. 168, therefore this allocation became final and the plot in question was registered in the name of the applicants' ancestor.
8. By a decision of 10 November 1954, following the above registration process and the establishment of the Cadastral Courts, the Istanbul Civil Court of First Instance issued a decision of non-jurisdiction and transferred this lawsuit to the Bakırköy Cadastral Court. This decision was upheld by the Court of Cassation on 15 July 1955.
9. By a decision of 5 February 1959, the Bakırköy Magistrate's Court designated Mehmet Rauf Merter and Hasan Tahsin as the heirs (“the heirs”) of Ahmet Muhtar Merter following his death.
10. On 23 July 1960 the Bakırköy Cadastral Court decided that plots nos. 115, 116 and 119 should be registered in the names of the heirs, plots nos. 113 and 118 in the name of the Treasury, and plots nos. 110, 114 and 117 in the name of the neighbour. On 13 March 1961 the Court of Cassation quashed this judgment and remitted the case to the Bakırköy Cadastral Court.
11. In 1967 the Treasury, the Municipality of Istanbul and the heirs of four other persons intervened in the proceedings. Relying on the Ottoman land registry records (temessük kayıtları), they claimed ownership rights over the plots in question.
12. On 17 July 1970 the second applicant, Ahmet Attila Merter, also intervened in the proceedings before the Bakırköy Cadastral Court as a testamentary heir.
13. On 9 May 1988 the Bakırköy Cadastral Court decided that plots nos. 115 and 119 should be registered in the names of the applicants (as heirs of Ahmet Muhtar Merter) and plots nos. 113 and 118 in the names of the Municipality of Istanbul and the Treasury respectively. The court also held that plots nos. 110, 114, 116 and 117 should be registered in the names of the heirs of the neighbour. The court further allowed the request to intervene by the heirs of Ahmet Kethüda who stated that their ancestor had partially maintained the last-mentioned plots in his possession before the proceedings had begun. The total number of parties to the proceedings increased to forty-eight.
14. On 6 March 1990 the Court of Cassation quashed the judgment of 9 May 1988 for non-compliance with the procedure for the announcement of the judgment. It further considered that the examination conducted by the first-instance court was insufficient and that the court should have considered the de facto possession of these plots of land.
15. On 23 December 1992, having conducted a land survey and with reference to an expert report, the Bakırköy Cadastral Court set aside its decision concerning the registration of plots nos. 115 and 119 in the names of the applicants. Following its examination of the Ottoman land registry records (temessük kayıtları), the court ruled that the aforementioned plots should be registered in the names of the heirs of Hacıahmet, son of Mehmet, and that plots nos. 113 and 118 should be registered in the names of the Municipality of Istanbul and the Treasury respectively. The court also held that plots nos. 110, 114 and 117 should be registered in the names of the heirs of the neighbour.
16. It is to be noted that this judgment was not served on the first applicant, Mehmet Rauf Merter, but on his legal representative, who had died in 1989 (see paragraphs 23-26 below).
17. In a decision dated 8 February 1994 the Court of Cassation upheld the above judgment in part and quashed the remainder. It reasoned that the examination conducted by the Court of First Instance had been insufficient because it had given judgment despite contradictory expert reports and witness statements. It further reasoned that the court had also failed to verify whether some of the documentary evidence was genuine. The Court of Cassation held in particular that the Court of First Instance had erred in its finding concerning the registration of plots nos. 115 and 119. However, it upheld the judgment of 23 December 1992 with regard to plots nos. 110, 113, 114, 116, 117 and 118. It further dismissed a rectification request by the parties on 26 January 1995. Thus, while the judgment became final in respect of the aforementioned plots, the dispute continued as regards plots nos. 115 and 119.
18. On 7 May 1996 the Bakırköy Cadastral Court, relying on the Ottoman land registry records, decided that 50% of plots nos. 115 and 119 should be registered in the names of the heirs of Mehmet Hidayet and the remaining 50% in the name of Mehmet Oral, who had purchased part of the plots from Mehmet Hidayet. The court further noted that the heirs of Ahmet Muhtar Merter (the applicants' ancestor) had failed to prove their possession of the plots for twenty years.
19. It is to be noted that the first applicant, Mehmet Rauf Merter, was not a party to the above proceedings, although the remaining four applicants, as heirs of Ahmet Muhtar Merter, were noted as litigants in the court's above-mentioned judgment.
20. On 4 February 1997 the Court of Cassation dismissed an appeal lodged by the heirs of the neighbour, the Municipality of Istanbul and the Treasury against the above decision. It also rejected a rectification request by the appellants on 30 September 1997. The judgment of 7 May 1996 thus became final.
21. On 30 December 1997 the applicants brought an action in the Bakırköy Cadastral Court asking for the proceedings to be reopened (iade-i muhakeme) on the basis of newly discovered documentary evidence. They claimed that plots nos. 115 and 119 should be registered in their names.
22. On 27 May 1998 the Bakırköy Cadastral Court rejected the applicants' request to reopen the proceedings. The Court of Cassation upheld this judgment on 8 May 2000.
23. On 1 February 1999 the first applicant applied to the Bakırköy Cadastral Court claiming that the judgment of 23 December 1992 had been served on his legal representative who had died in 1989 and that he had not been able to learn of it in time to appeal within the statutory time-limit. He therefore asked the court to serve the said judgment on him and to grant him leave to appeal.
24. On 2 February 1999 the court dismissed the first applicant's requests on the grounds that the judgment in question had been communicated to the parties and had already been enforced. The first applicant appealed.
25. On 13 June 2000 the Court of Cassation quashed the Bakırköy Cadastral Court's judgment of 2 February 1999 on the ground that the case file did not contain any information or document indicating that the judgment in question had been duly served on the first applicant. It therefore granted the first applicant leave to appeal but, after re-examining the case, dismissed his appeal.
26. On 31 May 2002 the Court of Cassation dismissed the first applicant's request for rectification of its decision of 13 June 2000.
27. According to the information given by the Government, on 30 September 2002 the applicants brought a new action in the Bakırköy Cadastral Court asking for the proceedings to be reopened. The applicants' action was communicated to the parties (forty-eight persons) and the proceedings are still pending.
28. Meanwhile, on an unspecified date, the applicants filed another action with the Bakırköy Court of First Instance claiming compensation from the Bakırköy Land Registry Office (tapu sicil müdürlüğü). The applicants alleged that they had sustained damage on account of the negligence and mistakes made by the defendant in keeping the land registry records. These proceedings were suspended pending the outcome of the proceedings before the Bakırköy Cadastral Court.
29. It is to be noted that the applicants did not provide any information or raise any complaints about the proceedings pending before the Bakırköy Cadastral Court and the Bakırköy Court of First Instance.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-106204
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF WERSEL v. POLAND
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1+6-3-c
JUDGES: Lech Garlicki;Ledi Bianku;Nicolas Bratza;Päivi Hirvelä;Sverre Erik Jebens;Zdravka Kalaydjieva
TEXT: 5. The applicant, Mr Krzysztof Wersel, is a Polish national who was born in 1970 and is currently serving a prison sentence in Brzeg Prison.
6. The applicant has been in continuous detention from an unspecified date in September 2000 until the present day.
7. He was initially committed to Mysłowice Remand Centre.
8. In November 2000 he was transferred to Zabrze Remand Centre, where, as he submitted, he had been detained together with two or three other detainees in cells measuring 6 or 10 square metres.
9. In July 2001 the applicant was transferred back to Mysłowice Remand Centre, where he had been detained in overcrowded cells. In addition, the applicant, who was a non-smoker, had been exposed to cigarette smoke because smoking inside the cell was allowed.
10. From 31 December 2003 until an unspecified date in July 2005 the applicant was detained in Gliwice Remand Centre. He was assigned to a cell measuring 6 square metres which he had shared with two other detainees.
11. On an unspecified date in July 2005 the applicant was committed to Zabrze Remand Centre. He submitted that, initially, the conditions of his detention had been satisfactory. In his letter of 19 June 2006, however, he claimed that the establishment had become overcrowded just like all the other detention facilities.
12. The Government submitted that as of 26 November 2009 the applicant had been detained in Brzeg Prison, in a cell in which the statutory minimum space of 3 square metres per person had been respected.
13. On 7 October 2004 the applicant complained to the remand centre’s administration about overcrowding and bad living conditions. He did not complain to the penitentiary authorities in connection with the living conditions as regards the more recent period of his detention. Moreover, the applicant did not bring a civil action in tort to seek compensation for the infringement of his personal rights.
14. On 27 October 2003 the Katowice District Court (Sąd Rejonowy) convicted the applicant of three counts of armed robbery and sentenced him to a prison term of three and a half years. During the first-instance proceedings the applicant was represented by a legal aid lawyer.
15. On 23 April 2004 the Katowice Regional Court (Sąd Rejonowy) upheld the above-mentioned judgment on appeal. During the secondinstance proceedings the applicant was also represented by a legal aid lawyer. To that effect the appellate court held that the applicant be exempted from all costs of the appellate proceedings, including legal assistance.
16. On 25 May 2004 the reasoned judgment was served on the applicant. On that date the time-limit of thirty days for lodging a cassation appeal began to run.
17. On 26 May 2004 the lawyer instructed the applicant that her mandate had expired when the appellate proceedings had come to an end. If the applicant wished to have a cassation appeal lodged with the Supreme Court, he should make a new request for legal aid.
18. On 30 May 2004 the applicant prepared an application for legal aid and deposited it as out-going mail with the authorities of the Gliwice Remand Centre. His legal aid application was received by the Katowice Regional Court on 3 June 2004.
19. By an official letter of 22 June 2004 the registry of the Katowice Regional Court notified the applicant that his appeal for legal aid had been rejected. The court’s decision was not accompanied by any reasoned opinion.
20. On 24 June 2004 the applicant drafted his own cassation appeal and filed it with the Katowice Regional Court.
21. On 1 July 2004 the Katowice Regional Court requested the applicant to complete the procedural requirements by having his cassation appeal prepared and signed by a lawyer within 7 days. That request was served on the applicant on 5 July 2004.
22. On 6 July 2004 the applicant informed the Regional Court that he was unable to comply with the above-mentioned instruction because he had not been granted legal-aid. The applicant, once more, asked the court to grant him legal aid for the purpose of his cassation appeal proceedings.
23. On 16 July 2004 the registry of the Katowice Regional Court informed the applicant that his application for legal aid had been rejected. No formal decision was served on the applicant to that effect.
24. On 6 August 2004 the President of the Criminal Law Section of the Katowice Regional Court decided that the applicant’s cassation appeal was not to be entertained (odmówił przyjęcia kasacji) for non-compliance with procedural requirements.
25. A detailed description of the relevant domestic law and practice concerning general rules governing conditions of detention in Poland and domestic remedies available to detainees alleging that the conditions of their detention were inadequate is set out in the Court’s pilot judgments given in the cases of Orchowski v. Poland (no. 17885/04) and Norbert Sikorski v. Poland (no. 17599/05) on 22 October 2009 (see §§ 75-85 and §§ 4588 respectively). More recent developments are described in the Court’s decision in the cases of Łatak v. Poland (no. 52070/08) adopted on 12 October 2010 (see §§ 25-54) and Łomiński v. Poland (no. 33502/09) adopted on 12 October 2010 (see §§ 17-49).
26. Under the Law of 6 June 1997 - Code of Criminal Procedure (“the Code”), which entered into force on 1 September 1998, a party to criminal proceedings can lodge a cassation appeal with the Supreme Court against any final decision of an appellate court which had terminated criminal proceedings. The cassation appeal has to be lodged and signed by an advocate, on pain of being declared inadmissible. The relevant part of Article 523 § 1 of the Code provides:
“A cassation appeal may be lodged only on the grounds referred to in Article 439 [these include a number of procedural irregularities, such as, for instance, incorrect composition of the trial court; lack of legal assistance in cases where such assistance was compulsory; breach of the rules governing jurisdiction in criminal matters; trying a person in absentia in cases where his presence was obligatory and thus depriving him of an opportunity to defend himself, etc.] or on the ground of another flagrant breach of law provided that the judicial decision in question was affected as a result of that breach. A cassation appeal shall not lie against the severity of the penalty imposed (niewspółmierności kary).”
27. Pursuant to Article 524 § 1 of the Code, a cassation appeal has to be lodged with the appellate court competent to carry out an initial examination of its admissibility within thirty days from the date of service of the judgment of the appellate court with its written grounds on the party or, if the party has been represented, on his or her lawyer.
Under Article 83 of the Code, an accused may appoint a lawyer to represent him or her in criminal proceedings. If he or she cannot afford lawyers’ fees, a request for legal aid may be made under Article 78 of the Code.
28. A grant of legal aid expires upon a judgment of an appellate court. A new decision on legal aid has to be made if the convicted person wishes to institute further proceedings in order to lodge a cassation appeal with the Supreme Court. The relevant part of Article 84 § 3 of the Code provides:
“A defence counsel appointed under the legal aid scheme in the cassation proceedings ... shall prepare and sign a cassation appeal ... or shall inform the court, in writing, that he or she has not found any grounds for lodging a cassation appeal ... If a cassation appeal ... is lodged, the defence counsel is entitled to represent the defendant in the subsequent proceedings.”
29. Under Article 528 of the Code an interlocutory appeal (zażalenie) is not available against a refusal of legal aid for cassation appeal proceedings.
Article 530 § 2 of the Code provides that the president of the court which had given the decision appealed against is competent to decide whether the formal requirements for a cassation appeal had been complied with. If an accused’s appeal is not filed and signed by an advocate, it must be rejected on formal grounds. If such an appeal complies with the formal requirements, the case is referred to the Supreme Court.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1
6-3
VIOLATED_BULLETPOINTS: 6-3-c