ITEMID: 001-117134
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2013
DOCNAME: CASE OF SALAKHOV AND ISLYAMOVA v. UKRAINE
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 2 - Right to life (Article 2-1 - Life) (Substantive aspect);Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Inhuman treatment) (Substantive aspect);Violation of Article 34 - Individual applications (Article 34 - Hinder the exercise of the right of petition);Non-pecuniary damage - award
JUDGES: Aleš Pejchal;André Potocki;Angelika Nußberger;Ganna Yudkivska;Mark Villiger;Paul Lemmens
TEXT: 6. The first applicant was born in 1981 and died on 2 August 2008. The second applicant was born in 1955 and lives in the town of Zuya in Crimea.
7. On 30 September 2005 the first applicant tested HIV positive.
8. On 2 February 2006 the Centre for the Prevention and Combating of Aids in Crimea (“the Aids Centre”) informed him of the test results and invited him to register for medical monitoring. The first applicant did not, however, follow the advice (see also paragraphs 21 and 59 below).
9. On 20 November 2007 the first applicant was arrested by the police on suspicion of having robbed an acquaintance of a mobile phone. According to the second applicant, on the same day her son informed the investigator about his HIV status and expressed the fear that his health might deteriorate in detention. This information was allegedly ignored. According to the Government, the first applicant did not disclose his HIV status.
10. The first applicant was placed in the Temporary Detention Facility of the Bakhchysaray Police Station (“the ITT”). The officer on duty examined him and reported that he had no visible injuries and had raised no complaints.
11. On 23 November 2007 the Bakhchysaray District Court (“the Bakhchysaray Court”) remanded the first applicant in custody pending trial.
12. On 30 November 2007 the first applicant was X-rayed in the local polyclinic; no lung pathology was revealed.
13. On 2 December 2007 he was taken from the ITT to Simferopol Pre-Trial Detention Centre no. 15 (“the SIZO”), where he was examined by a therapist (general practitioner), a dermatologist, a dentist and a psychiatrist. All found him to be in good health. According to the medical records, the first applicant did not have any health-related complaints and did not report any illnesses. His height and weight were recorded as 180 cm and 78 kg respectively.
14. The first applicant was detained in the SIZO from 2 to 28 December 2007, then subsequently from 10 January to 10 February 2008, and from 18 February to 2 June 2008. During the intervening periods, from 28 December 2007 to 10 January 2008, from 10 to 18 February, and from 2 to 20 June 2008, he was held in the ITT.
15. According to the records of his medical examinations of 10 January and 10 and 18 February 2008, he appeared to be in good health and did not raise any health-related complaints.
16. According to the SIZO medical register, on 28, 29 and 30 May 2008 the first applicant complained of nasal stuffiness, rhinitis, and a sore throat. The SIZO therapist diagnosed him with an “acute respiratory viral infection” and prescribed medication.
17. As to the intervening period between the aforementioned records of 18 February and 28 May 2008, no documents are available in the case file. The applicants submitted, however, that in early March 2008 the first applicant’s health had sharply deteriorated. He allegedly had a constant fever of 39-40ºC and suffered from serious digestive disorders. According to the applicants, the administration of the detention facilities called for an ambulance in that regard on many occasions. The nature of the ambulance interventions remained unclear.
18. On 31 May 2008 the first applicant was additionally examined by an infectious disease specialist at the SIZO, who issued a note stating the following. The first applicant had been complaining of experiencing fevers and losing weight for the preceding two months. The doctor recommended an HIV test, to which the first applicant agreed. The test was scheduled for 2 June 2008. However, it did not take place because of the first applicant’s transfer from the SIZO to the ITT (see paragraph 14 above).
19. On 2 June 2008, following another transfer from the SIZO to the ITT, the first applicant complained to the ITT medical attendant about feeling weak and having fever and back pain. The medical attendant administered some antipyretics to him.
20. On 3 June 2008 the first applicant was taken to the Central Hospital, where he was examined by a therapist and underwent ultrasound scans of his liver, gallbladder, pancreas, spleen and kidneys. The following tests were also carried out: chest X-ray, electrocardiogram, esophagogastroduodenoscopy, as well as general blood and urine analyses. The therapist diagnosed the applicant with an ulcer, gastrointestinal hemorrhage, haemorrhoids, chronic bronchitis, and suspected HIV infection.
21. On 4 June 2008 the Chief Doctor of the Aids Centre informed the second applicant, in reply to her enquiry of 3 June 2008, that her son had tested HIV positive on 30 September 2005, and had been informed of the result on 2 February 2006, but that he was not registered for monitoring in that Centre.
22. On 5 June 2008 the first applicant was again taken to the Central Hospital, this time for examination by an infectious disease specialist. According to a note issued by the doctor, the first applicant complained to him about suffering from stomach aches, mouth lesions, a skin rash, coughing, and shortness of breath. He also complained of having lost about 10 kg during the preceding three months. Having examined the first applicant, the doctor diagnosed him with pneumocystis pneumonia, oropharynx-esophagus candidiosis (thrush) and an ulcer. Moreover, he concluded that the symptoms disclosed HIV infection at the fourth clinical stage. While the doctor assessed the first applicant’s condition as being “moderately severe” and noted that he required medical treatment for the aforementioned conditions, a general conclusion was reached that there was no urgent need for hospitalisation.
23. The first applicant’s mother was informed of the diagnoses. She bought the prescribed medications, and the ITT medical attendant administered them to her son.
24. On 6 June 2008 the first applicant’s lawyer requested the Bakhchysaray Court to release his client on account of his critical state of health. He noted that the first applicant required urgent specialised medical treatment because he had HIV infection at the fourth clinical stage and concomitant oesophagal candidosis and pneumocystis pneumonia. The lawyer stated that the first applicant’s life hung in the balance and that in order to save it he needed to be at liberty so as be able to seek proper medical care. Moreover, the lawyer pointed out, his client had a permanent place of residence and he had neither absconded from the investigation nor hindered it in any way. Furthermore, given his desperate health condition he did not present any danger to society.
25. The Bakhchysaray Court rejected the above-mentioned request (this ruling is not available in the case file before the Court).
26. On 11 June 2008 the Bakhchysaray District Prosecutor’s Office instructed the local police department to take the first applicant to the Central Hospital for another examination with a view to clarifying whether his state of health was compatible with detention.
27. On 13 June 2008 the first applicant was taken to the Central Hospital, where he was again examined by an infectious disease specialist. The doctor reached a preliminary conclusion that the first applicant was suffering from HIV infection at the second clinical stage, which did not necessitate urgent hospitalisation. A further examination in the Aids Centre was recommended with a view to deciding on the necessary medical treatment. The doctor also made arrangements for the first applicant to have laboratory tests, such as blood and urine analyses and a sugar test, and a chest X-ray.
28. On 16 June 2008 the applicants requested the Court to indicate to the Ukrainian Government, under Rule 39 of the Rules of Court, that the first applicant should be hospitalised and treated as a matter of urgency given the serious deterioration of his health and the alleged lack of adequate medical treatment.
29. On 17 June 2008 the President of the Fifth Section decided to grant that request and to indicate to the respondent Government, under Rule 39 of the Rules of Court, that the first applicant “should be transferred immediately to a hospital or other medical institution where he [could] receive the appropriate treatment for his medical condition until further notice.” On the same day (Tuesday, a working day) a fax message was sent to the Government informing them of this decision.
30. On 18 June 2008 the first applicant’s lawyer once again requested the Bakhchysaray Court to release his client. He reiterated that the first applicant’s life was in danger. The lawyer also referred to the aforementioned decision of the Court regarding the application of Rule 39 of the Rules of Court in the first applicant’s case.
31. On the same date, 18 June 2008, following another enquiry by the Bakhchysaray police about the need for the first applicant’s hospitalisation, the Chief Doctor of the Infectious Diseases Department of the Central Hospital stated that the first applicant did not require urgent hospitalisation.
32. As a result, the Bakhchysaray Court rejected the first applicant’s request for release submitted earlier that day.
33. On 18 June 2008 the second applicant complained to the Chief Doctor of the Central Hospital about the alleged failure of its staff to provide her son with adequate medical assistance in spite of the applications she had made in that regard on 4 and 5 June, as well as twice on 13 June 2008. She insisted that his life was in danger. According to the second applicant, her son had never undergone a complete medical examination. She considered that the doctors were avoiding treating him because he was, firstly, HIV-positive and, secondly, a detainee.
34. On 20 June 2008 the first applicant was taken to the Aids Centre, where the following diagnoses, classified as preliminary, were established: HIV infection at the fourth clinical stage, systemic candidosis of the oropharynx and oesophagus, continuous fever with expressed intoxication syndrome, a loss of body weight of more than 15%, and seborrheic dermatitis of the scalp. The doctors at the Aids Centre concluded that he required an additional examination with a view to clarifying the diagnoses, as well as inpatient medical treatment.
35. On the same day, he was transferred to the Central Hospital, where he was placed in a ward under police guard. According to the second applicant, her son was kept continuously handcuffed to his bed. She submitted to the Court his two photos taken on 25 June 2008. They showed the first applicant with his left hand handcuffed to the hospital bed. According to the letter of the First Deputy Minister of Public Health to the Government Agent of 23 October 2009 (see also paragraph 67 below), which referred to the first applicant’s medical file in the Central Hospital, on 20 June 2008 he arrived there handcuffed. However, it was not recorded in the medical file whether he remained handcuffed throughout his treatment in that hospital.
36. At some point on 20 June 2008 the first applicant wrote an “explanatory note” to the police, according to which he had informed neither the SIZO nor the ITT administration about his HIV infection “for understandable reasons”. After his mother had informed them that he might have that diagnosis, on 5 and 13 June 2008 he had undergone medical examinations in the Central Hospital resulting in the prescription of certain medication. The medical attendant had later administered that medication to him in the ITT. The first applicant stated that he had no complaints about the ITT staff. According to the second applicant, however, her son had written the aforementioned note under duress.
37. On 24 June 2008 the first applicant wrote another note in which he stated that he had started to feel unwell during his detention (the date is illegible on the available copy). He noted that he had sought examination by a therapist on account of his continuous fever, as well as kidney, liver and intestinal pain. The medical attendant had been sent to him instead and had merely given him antipyretics. As he had not got any better, at some point between 22 and 25 May 2008 the medical attendant had begun administering injections of ceftriaxone (an antibiotic) to him. The fever and backache had, however, not ceased. As a result, on 29 May 2008 he had been placed in the SIZO hospital, without any changes to his treatment. Following his transfer to the ITT, on 4 June 2008 he had started to intake some other medicines which had been bought by his mother.
38. On 24 June 2008 the first applicant’s lawyer again requested the release of his client, referring to the seriousness of his condition, as well as to the fact that the prosecutor did not object to his release.
39. On the same date the Bakhchysaray Prosecutor requested the judge dealing with the first applicant’s criminal case to bring forward the hearing scheduled for 3 July 2008 given “the critical condition” of the first applicant and the need for him to undergo treatment in Simferopol Hospital no. 7, which specialised in the treatment of Aids (“Hospital no. 7”). The prosecutor noted the necessity to examine the aforementioned release request promptly.
40. On an unspecified date (possibly 4 July 2008 – see paragraph 47 below) the Bakhchysaray Court rejected the aforementioned request for the first applicant’s release.
41. On 26 June 2008 the Chief Doctor of the Central Hospital responded to the second applicant’s complaint about the alleged failure to provide her son with the required medical assistance. He noted that the available medical records were insufficient for evaluating the development of his disease over time. The requests for medical assistance addressed to the Hospital had been of a contextual nature and assistance had been duly provided.
42. On the same day the first applicant was transferred from the Central Hospital to Hospital no. 7.
43. According to an extract from his medical record while in Hospital no. 7, his diagnoses included those established by the Aids Centre on 20 June 2008 (see paragraph 34 above), plus the following: pneumocystis pneumonia, second-degree anaemia, heavy immunosuppression (the CD4 count being 48 cells/mm3), and encephalitis of unclear origin. Furthermore, toxic hepatitis, hepatolienal syndrome, superficial gastritis, and duodenogastric reflux were indicated as concurrent illnesses.
44. According to the letter of the First Deputy Minister of Public Health to the Government Agent of 23 October 2009 (see also paragraph 67 below), which further referred to information from the management of Hospital no. 7, the first applicant had been handcuffed during his treatment in Hospital no. 7 from 26 June to 18 July 2008. At the same time, it was noted in the aforementioned letter that there was no information as to whether the handcuffing had been constant.
45. On 2 July 2008 the ITT Governor examined the second applicant’s complaint about the alleged failure to provide her son with the required medical assistance and delivered a decision refusing to launch a criminal investigation into the matter. He noted that the first applicant had hidden from the administration the fact that he was HIV-positive. In any event, he had received adequate medical care during his detention in the ITT.
46. On the same day the Chief Doctor of Hospital no. 7 wrote to the Chief of the Bakhchysaray Police Department, stating that the first applicant required lengthy medical treatment, that he needed to be unrestricted in his movements, and that any interruption in his treatment would trigger a sharp deterioration in his health.
47. On 4 July 2008 the Bakhchysaray Court found the first applicant guilty of fraud (instead of the robbery charge advanced by the prosecution – see paragraph 9 above) and sentenced him to a fine of 850 Ukrainian hryvnias (at the time equivalent of 115 euros). It was noted in the judgment that, until it became final the first applicant was to remain in detention.
48. On 10 July 2008 antiretroviral therapy began to be administered to the first applicant in Hospital no. 7. According to the information provided by the Public Health Ministry in its letter to the Government Agent of 23 October 2009, the first applicant had refused – apparently on one occasion – to take the prescribed medication.
49. On the same date, 10 July 2008, the second applicant requested the Chief of the Bakhchysaray Police Department to allow her to visit her son and to take care of him in the hospital given his critical condition. She also complained to the Bakhchysaray Prosecutor about the first applicant’s continuous handcuffing and sought its discontinuation.
50. On 15 July 2008 the Chief of the Bakhchysaray Police replied to the second applicant that her son would in any case soon be released once the judgment of 4 July 2008 became final.
51. On 18 July 2008 the first applicant’s lawyer also sought discontinuation of the handcuffing, noting that it was already clear that his client was about to die; nevertheless, he remained guarded by two police officers in a ward with barred windows, handcuffed to his bed. Such security measures were not only unjustified, but also inhuman. The lawyer further submitted that, as the second applicant had discovered, certain police officers guarding her son had mockingly offered him to install a cable in the ward and to handcuff him to that cable so that his movements would be “practically unrestrained”.
52. On 18 July 2008 the police lifted the security measures in respect of the first applicant (apparently on the ground that the judgment of 4 July had become final), and the second applicant took him home. She wrote a note to the administration of Hospital no. 7 stating that she was taking her son home “for family reasons”.
53. On the following day, however, the first applicant was hospitalised again in Hospital no. 7 because of a deterioration in his health.
54. On 1 August 2008 the second applicant took him home again, having written a note to the hospital administration similar to that of 18 July 2008.
55. On 2 August 2008 the first applicant died.
56. Following the death of her son, the second applicant complained to the prosecution authorities about the alleged denial of timely and adequate medical care available for him in detention which, according to her, had led to his death.
57. On 20 January 2009 the Bakhchysaray Prosecutor informed her that the ITT governor’s decision of 2 July 2008 (see paragraph 45 above) had been quashed and the investigation into the medical assistance provided to the first applicant had been resumed.
58. On 17 February 2009 the Ministry of Public Health set up a commission for investigating the matter.
59. On 20 March 2009 the commission issued an official investigation report which concluded that the Central Hospital’s doctors bore no responsibility for the first applicant’s death. It noted that although the Aids Centre had informed him about his HIV-positive status and had explained to him the necessity of medical monitoring as early as on 2 February 2006, the first applicant had not sought any medical examinations or monitoring. As a result, the antiretroviral therapy had not been started in good time, thus complicating the development of the disease. The commission gave its general findings as follows:
“1. Medical care to persons in custody is the duty of the police medical staff.
2. Specialists of the Central Hospital do not provide medical consultations or examinations to persons in custody without being called on to do so by the [detention facilities’] personnel.
3. The [first applicant] benefited from examinations, specialist consultations, laboratory tests and treatment in Central Hospital fully and according to the approved standards.
4. The deterioration of [his] health and the complications are attributable to the delay in his application for medical care after testing HIV-positive, as well as the severity of the main disease, which triggered irreversible processes in [his] organism.”
60. On 23 March 2009 the second applicant again complained to the Bakhchysaray Prosecutor. She referred, in particular, to the allegedly unjustified conclusion of the infectious disease specialist of 13 June 2008, according to which her son had not required urgent hospitalisation at that time (see paragraph 27 above).
61. On 31 March 2009 the Bakhchysaray Prosecutor refused to institute criminal proceedings against the police or the Central Hospital’s staff, finding the second applicant’s complaint to be unsubstantiated.
62. On 3 April 2009 the Bakhchysaray Prosecutor quashed the decision of 31 March 2009 as further investigation was required, which was to include the following measures: questioning of the second applicant, the ITT staff, and the Central Hospital doctors concerned.
63. On 4 May 2009 the second applicant was questioned by the prosecutor. She submitted that her son’s health had started to deteriorate drastically in March 2008 and that he had not received prompt and adequate medical treatment. According to her, the administration of the detention facilities had merely called for an ambulance on several occasions. She insisted on the seizure and examination of all the medical documentation regarding her son – from the ITT, the SIZO, the Central Hospital and Hospital no. 7 – with a view to an evaluation of his medical needs and the actual response to them from November 2007.
64. On 25 May 2009 the Bakhchysaray Prosecutor refused to open criminal proceedings against the police or the Central Hospital’s staff, on account of lack of corpus delicti in their actions. He relied, in particular, on the conclusions of the Ministry of Public Health’s commission (see paragraph 59 above), as well as statements by police officers and doctors.
65. On 18 August 2009 the Bakhchysaray Court upheld that decision. It noted that the first applicant had himself raised no complaints against the police or medical staff. Furthermore, it appeared that as soon as the authorities had become aware of his HIV status they had provided him with adequate medical treatment.
66. On 13 October 2009 the Court of Appeal of the Autonomous Republic of Crimea (“the Crimea Court of Appeal”) quashed the ruling of 18 August 2009 and allowed the second applicant’s appeal. It criticised the investigation, in particular, for its failure to give any consideration to the first applicant’s state of health and the medical assistance, if any, provided to him in detention from 20 November 2007 to early June 2008. Furthermore, the appellate court noted that the impugned ruling had been delivered by the first-instance court in the second applicant’s absence and without any proof that she had been duly notified of the hearing. It remitted the case to the Bakhchysaray Court.
67. On 23 October 2009 the First Deputy Minister of Public Health sent a letter to the Government Agent, in reply to the latter’s enquiry following the communication of the application to the Government by the Court (see also paragraphs 35, 44 and 48 above). It contained the following conclusions:
“1. The reasons for the deterioration of the [first applicant’s] health and the complications in the development of [his] disease were as follows: the delayed application of [the first applicant] to [the Aids Centre] for specific medical assistance (since 2005), the seriousness of the main disease (Aids), and the irregularities in his antiretroviral treatment (there were refusals [on his part] to take the medication).
2. The death of the [first] applicant is not related to his medical treatment or the conditions in the medical facilities where he was held. It was caused by the gravity of the main disease, which triggered irreversible processes in [his] organism.”
68. On 17 December 2009 the Bakhchysaray Court quashed the decision of 25 May 2009 (see paragraph 64 above) and remitted the case to the Bakhchysaray Prosecutor for additional investigation.
69. On 19 August 2010 the Bakhchysaray Prosecutor ordered a forensic medical examination with a view to responding to the following questions:
(1) Did the Central Hospital’s therapist establish correct diagnoses in respect of the first applicant on 3 June 2008 (for details see paragraph 20 above)?
(2) Were the diagnoses established by the infectious disease specialist on 5 June 2008 (for details see paragraph 22 above), as well as his conclusion that the first applicant did not require urgent hospitalisation, correct?
(3) Given the diagnoses established on 5 June 2008, did the first applicant indeed not require urgent hospitalisation and could be detained in the ITT or the SIZO?
(4) Did the Central Hospital’s doctors prescribe correct medical treatment for the first applicant?
(5) Did the Central Hospital’s doctors act correctly in ordering the laboratory tests for the first applicant (blood and urine analyses, a sugar test, and chest X-ray) only on 13 June, and not on 3 or 5 June 2008?
(6) On 18 June 2008, following a repeated enquiry by the Bakhchysaray police as to the need for the first applicant to be hospitalised, the Chief Doctor of the Infectious Diseases Department of the Central Hospital issued a note stating that the first applicant did not require urgent hospitalisation. Did the doctor assess the seriousness of the first applicant’s condition correctly? Were her conclusions correct?
(7) Was it lawful on the part of the medical staff of Hospital no. 7 to discharge the first applicant on 18 July 2008, given that his mother’s request for him to be discharged did not contain any indication that she had been warned about the possible negative consequences?
(8) Were the actions of the medical staff in compliance with the legislation? Was there any causal link between the actions of the police and the medical staff and the death of the first applicant?
70. On 26 November 2010 the Crimea Republic Bureau for Forensic Medical Examinations completed its expert report.
71. Referring to the absence of medical documentation regarding the first applicant’s examination on 3 June 2008, it found it “extremely difficult” to answer question (1).
72. As to questions (2) and (3), the experts concluded that the diagnoses established by the infectious disease specialist on 5 June 2008 had not been based on a thorough examination of the first applicant and had not reflected the seriousness of his condition, in particular, the fever and the haemodynamic parameters. The experts concluded that the doctor’s finding that the first applicant’s urgent hospitalisation was not required on 5 June 2008 did not correspond to the diagnoses established. They noted that he had been diagnosed, in particular, with pneumocystis pneumonia, which would alone have warranted his urgent hospitalisation for in-patient medical treatment. The doctor’s prescription of antibacterial and antifungal medication for the first applicant was found to be correct (this was apparently the reply to question (4), which was not specified).
73. In reply to question (5), the experts found that the doctors’ decision of 13 June 2008 on the necessity of further laboratory examinations complied with the applicable medical standards. They noted that such laboratory tests had already been carried out on 4 June 2008 (from the documents in the case file it appears that the correct date was 3 June 2008 – see paragraph 20 above), but had needed to be further verified.
74. The expert commission replied to question (6) that at the time of his examination on 18 June 2008 the first applicant had required urgent hospitalisation and in-patient medical treatment.
75. As regards questions (7) and (8), the experts noted that they were not competent to make a legal assessment of the doctors’ actions. Given the absence of an autopsy report, the commission found it impossible to determine the cause of the death of the first applicant or to establish whether there was a causal link between the time of his hospitalisation for specialised treatment and his death.
76. On 27 December 2010 the Bakhchysaray Prosecutor instituted a criminal investigation into the failure of the Central Hospital’s doctors to comply with their professional obligations. This decision was mainly based on the expert commission’s findings of 26 November 2010. It stated, in particular, as follows:
“The prosecutor’s investigation has collected sufficient evidence of inadequate compliance by the medical officials with their professional duties due to negligence. The delayed hospitalisation and, accordingly, the delayed provision of medical assistance to [the first applicant] contributed considerably to the deterioration of his health, which amounted to a grave consequence for him.”
There is no information in the case file on any further developments in this investigation or its outcome.
77. On 29 April 2011 the Bakhchysaray Prosecutor delivered a decision refusing to institute criminal proceedings against the staff of the ITT or the SIZO in connection with the medical assistance provided to the first applicant. Referring to the medical records of 20 November and 2 December 2007, 10 January, 10 and 18 February and 28 May 2008, as well as later medical documentation, the prosecutor did not discern anything criminal in the actions of the administration of the detention facilities.
78. On 9 August 2011 the Bakhchysaray Court upheld that decision having dismissed the second applicant’s complaint to that regard.
79. On 22 September 2011 the Crimea Court of Appeal quashed the ruling of the first-instance court and remitted the case back to it for fresh examination.
80. On 16 November 2011 the Bakhchysaray Court again rejected the second applicant’s complaint.
81. On 13 March 2012 it however reconsidered its position, apparently after a repeated complaint from the second applicant. The Bakhchysaray Court quashed the prosecutor’s ruling of 29 April 2011 and remitted the case for additional investigation. It noted that the investigation undertaken only indirectly concerned the ITT personnel and did not concern at all the SIZO administration or medical staff. Moreover, the SIZO personnel whose duty was to respond to the first applicant’s complaints had not even been identified. The Bakhchysaray Court also observed the lack of information in the file as regards any record-keeping of the first applicant’s health-related complaints or showing the absence of such complaints during his detention.
82. The Court has not been made aware of any further developments.
83. The Rules on Medical and Sanitary Care in Detention Centres and Penitentiaries, approved by Decree no. 3/6 of 18 January 2000 of the State Department for the Enforcement of Sentences, stipulate that medical assistance to HIV-infected persons is to be provided on the same basis as to everybody else (paragraph 4.3.4). The Rules also contain recommendations stating that accessible, informative and supportive counselling should be available before and after HIV-testing (annex 28 to paragraph 4.3.4).
84. The relevant provisions of Decree No 186/607 of 15 November 2005 of the Ministry of Health and the State Department for the Enforcement of Sentences on the Antiretroviral Treatment of Persons with HIV/Aids Detained in Prisons and Pre-Trial Detention Centres are summarised in the case of Yakovenko v. Ukraine (no. 15825/06, §§ 49-52, 25 October 2007).
85. Article 18 of the Pre-trial Detention Act (1993) sets out rules governing the use of security measures, including the use of handcuffs. Prison officers are entitled to use force and special equipment, including unarmed combat, handcuffs and truncheons, with a view to suppressing physical resistance, violence, outrage (безчинства
86. Article 140 § 1 of the Criminal Code penalises medical negligence which has led to grave consequences for the patient by “debarring from the holding of certain offices or pursuing certain activities” for a term of up to five years, or by correctional work for up to two years, or by restriction or deprivation of liberty for the same term.
87. The relevant extracts from the third General Report [CPT/Inf (93) 12] of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“the CPT”) read as follows:
“a. Access to a doctor
...
35. A prison’s health care service should at least be able to provide regular out-patient consultations and emergency treatment (of course, in addition there may often be a hospital-type unit with beds). ... Further, prison doctors should be able to call upon the services of specialists. ...
Out-patient treatment should be supervised, as appropriate, by health care staff; in many cases it is not sufficient for the provision of follow-up care to depend upon the initiative being taken by the prisoner.
36. The direct support of a fully-equipped hospital service should be available, in either a civil or prison hospital. ...
37. Whenever prisoners need to be hospitalised or examined by a specialist in a hospital, they should be transported with the promptness and in the manner required by their state of health.”
b. Equivalence of care
38. A prison health care service should be able to provide medical treatment and nursing care, as well as appropriate diets, physiotherapy, rehabilitation or any other necessary special facility, in conditions comparable to those enjoyed by patients in the outside community. Provision in terms of medical, nursing and technical staff, as well as premises, installations and equipment, should be geared accordingly.
There should be appropriate supervision of the pharmacy and of the distribution of medicines. Further, the preparation of medicines should always be entrusted to qualified staff (pharmacist/nurse, etc.).
39. A medical file should be compiled for each patient, containing diagnostic information as well as an ongoing record of the patient’s evolution and of any special examinations he has undergone. In the event of a transfer, the file should be forwarded to the doctors in the receiving establishment.
Further, daily registers should be kept by health care teams, in which particular incidents relating to the patients should be mentioned. Such registers are useful in that they provide an overall view of the health care situation in the prison, at the same time as highlighting specific problems which may arise.
40. The smooth operation of a health care service presupposes that doctors and nursing staff are able to meet regularly and to form a working team under the authority of a senior doctor in charge of the service.”
88. The guidelines of the World Health Organisation (“WHO”) on antiretroviral therapy for HIV infection in adults and adolescents can be found in the judgment in the case of Kozhokar v. Russia, no. 33099/08, §§ 77-79, 16 December 2010.
VIOLATED_ARTICLES: 2
3
34
VIOLATED_PARAGRAPHS: 2-1


ITEMID: 001-58155
LANGUAGEISOCODE: ENG
RESPONDENT: PRT
BRANCH: CHAMBER
DATE: 1998
DOCNAME: CASE OF ESTIMA JORGE v. PORTUGAL
IMPORTANCE: 3
CONCLUSION: Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time);Pecuniary and non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Pecuniary damage;Just satisfaction)
TEXT: 9. Mrs Amélia Alves Estima Jorge, a Portuguese national, lives at Loures in Portugal
10. By a notarial deed dated 19 December 1978 the applicant and A.P. jointly agreed to lend to Mr and Mrs O. a total of 1,360,000 escudos (PTE), to be repaid within six months, which period was renewable as often as the parties agreed. The loan bore interest at the rate of 8% per annum if repaid during the term and 12% if repaid late. The borrowers undertook to bear the costs incurred in securing and enforcing the debt. The capital and interest and other costs were secured by a mortgage over a property in Carcavelos (jurisdiction of Cascais). On 22 December 1978 Mrs Estima Jorge advanced the borrowers the portion of the capital she had undertaken to lend, namely PTE 390,000; A.P. paid the balance (PTE 970,000) on 27 December 1978. The borrowers failed to repay either capital or interest.
11. On 27 November 1981, as no voluntary repayment had been made, the lenders brought enforcement proceedings in the Fourth Civil Division of the Lisbon Court of First Instance (tribunal civel da comarca de Lisboa) against Mr and Mrs O. for repayment of the mortgage. Mrs Estima Jorge claimed PTE 553,800 (comprising the capital plus PTE 163,800 in interest she considered to be due for the period from 19 December 1978 to 19 June 1981); A.P. claimed PTE 1,377,400. They also sought an order for payment of accrued interest at the date of repayment of the loan in full and of costs and expenses.
12. On 8 January 1982 the Lisbon Court of First Instance requested the Cascais Court of First Instance (tribunal judicial da comarca de Cascais) to serve a demand on the debtors. On 1 and 7 October 1982 the Cascais Court of First Instance served notice on the debtors requiring them, within ten days, to repay the debt or to draw up a list of property that could be seized. The Cascais Court of First Instance returned the executed request on 22 October 1982.

13. As the sum concerned was not repaid within the time allowed, the Lisbon Court of First Instance made a possession order in respect of the mortgaged property and requested the Cascais Court of First Instance to enforce it. The Cascais Court of First Instance executed the order on 14 February 1983 and returned the executed request on 4 March 1983.
14. After notice to other creditors had been published in newspapers carrying official announcements, the applicant applied on 19 March 1984 for an order for sale of the property by the court.
15. On 6 December 1984 the Lisbon Court of First Instance drew up a list of creditors classified as to rank (sentença de graduação de créditos).
16. The auction was held at Cascais on 20 March 1985. However, on 26 March 1985, State Counsel’s Office acting on behalf of the Bank for Official Deposits (Caixa Geral de Depósitos), sought an order for annulment of the auction, which the Cascais Court of First Instance made on 6 May 1985. On 28 October 1985 the purchaser of the property appealed against that decision to the Lisbon Court of Appeal (Tribunal da Relação), which upheld the impugned decision on 27 October 1988. On 31 January 1989 the case file was transferred to the Lisbon Court of First Instance.
17. An order was made for a fresh auction to be held on 16 May 1989. However, Mrs Estima Jorge learned in the meantime that the property in question had already been sold on 13 February 1989 in enforcement proceedings brought by the Carcavelos Finance Department in connection with unpaid taxes. On 26 May 1989 she applied for an attachment over the balance of the proceeds of that sale.
18. On 5 June 1989 the Lisbon Court of First Instance granted her application and requested the Cascais Court of First Instance to attach the balance. On 6 November 1989 the latter court was informed that the case file concerning the enforcement proceedings brought by the Carcavelos Finance Department had been sent to the Third Chamber of the Lisbon Tax Court of First Instance (tribunal tributário de 1a instância). On 2 February 1990 the Lisbon Court of First Instance advised the applicant of that development and asked her to provide information about those enforcement proceedings. On 14 February 1990 the applicant’s lawyer provided the necessary details.
19. On 12 March, 12 October 1990 and 14 February 1991 the Lisbon Court of First Instance asked the Lisbon Tax Court to carry out the attachment in question.
20. On 22 April 1992 Mrs Estima Jorge renewed her application for an attachment.
21. On 8 January 1993 the Lisbon Tax Court attached the balance of the proceeds of sale.
22. On 18 January 1994 the applicant received a financial statement which, on 24 January 1994, she asked to be rectified after discovering that her claim had been recorded in the name of another person.

23. An order for rectification was made on 11 March 1994.
24. On 29 November 1994 the Bank for Official Deposits delivered a cheque for PTE 722,135 to Mrs Estima Jorge.
25. Set out below is a translation of the main provisions of the Code of Civil Procedure in force at the material time.
“No one shall be entitled to use force to assert or protect his rights other than in the circumstances and within the limits prescribed by law.”
“For each right, except as otherwise provided by law, there is a corresponding action whose purpose is to secure judicial recognition of the right in question or to enforce it through coercion and such measures as shall be necessary to preserve the effectiveness of the action.”
“1. There are two types of action: declaratory actions (declarativas) and enforcement actions (executivas).
2. ...
3. Enforcement actions are those by which the plaintiff seeks adequate measures to secure effective reparation for a right that has been infringed.”
“Execution must be levied on the basis of an authority to execute, which shall serve to determine the aim and scope of the enforcement proceedings.”
“Enforcement proceedings may be brought only on the basis of:
(a) a court judgment; or
(b) a document produced or authenticated by a notary;
...”
“Documents produced or authenticated by a notary shall be enforceable provided that they establish the existence of an obligation.”
“No enforcement measures may be taken until the obligation has become indisputable and due if it is not clear from the authority to execute that that condition is satisfied.”
“The creditor must request that a demand be served on the debtor requiring him, within ten days, to make payment or to draw up a list of attachable property.”
“1. The right to draw up a list of attachable property may be exercised by the creditor, irrespective of any decision, where:
the debtor has not drawn up such a list within the statutory time-limit;
the debtor has failed to comply with the provisions of Article 834 when drawing up the list; or
some of the property on the list is missing.
2. Once the attachment has been carried out in accordance with a list drawn up by either the debtor or the creditor, the creditor may add other property to the list where:
it is obvious that the listed goods are insufficient;
the listed property is not free and clear of encumbrances, whereas the debtor has other property that is;
a third-party contests the attachment;
the creditor releases the attachment in accordance with Article 871 § 3.”
“Payment may be made in cash, by auction of the attached property, or by payment into court of the income from such property or the proceeds of its sale.”

26. Article 806 of the Civil Code is worded as follows:
“1. In cases concerning a pecuniary obligation, compensation shall take the form of interest from the date the payment becomes overdue.
2. Interest shall be payable at the statutory rate unless, before the payment becomes overdue, the parties have agreed on a higher rate of interest or on the payment of default interest at a rate different from the statutory rate.
3. However, in cases concerning liability for unlawful acts or under an aleatory contract, creditors shall be entitled to show that the delay has caused them loss exceeding the amount of interest referred to in the preceding paragraphs and to require additional compensation for such additional loss.”
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-109080
LANGUAGEISOCODE: ENG
RESPONDENT: NLD
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF ROMET v. THE NETHERLANDS
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for private life);Pecuniary damage - claim dismissed;Non-pecuniary damage - award
JUDGES: Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Josep Casadevall;Luis López Guerra;Mihai Poalelungi
TEXT: 5. The applicant was born in 1968 and lives in Maastricht.
6. On 3 November 1995 the applicant reported to the police that his driving licence had been stolen in September of that year. On 14 March 1997 the applicant was issued with a new driving licence. He had applied for it only shortly before, i.e. in 1997.
7. During the intervening period, between 3 November 1995 and 14 March 1997, the Government Road Transport Agency (Rijksdienst voor het Wegverkeer – “the Agency”) registered a total of 1,737 motor vehicles in the applicant’s name in the vehicle registration system (kentekenregister), but without his consent. It would appear that these registrations were effected upon presentation of the applicant’s stolen driving licence.
8. As a consequence of these vehicles being registered in his name, the applicant received large numbers of motor vehicle tax assessments (aanslagen motorrijtuigenbelasting/houderschapsbelasting), he was on many occasions prosecuted on the basis of the Motor Liability Insurance Act (Wet aansprakelijkheidsverzekering motorrijtuigen) and fined by the public prosecutor (officier van justitie) on the basis of the Traffic Regulations Administrative Enforcement Act (Wet administratiefrechtelijk handhaving verkeersvoorschriften) in respect of offences committed with the cars. Having been ordered by the competent court to pay these fines, he was detained for failure to comply with these orders (gijzeling) pursuant to Article 28 of the latter Act. The applicant ended up paying fines imposed on him on the basis of these motor vehicle registrations in respect of offences not committed by him. On several occasions the applicant was held liable by the Motor Traffic Guarantee Fund (Waarborgfonds Motorverkeer) for damage caused by uninsured vehicles registered in his name. The applicant’s welfare benefits were stopped, as his financial means were considered to be quite adequate in view of the sheer number of vehicles registered in his name.
9. The applicant alleges that on 1 July 1996 he requested the Agency to annul all the vehicle registrations, bar the one relating to his own car and was met with a refusal. Likewise, he alleges that he made several unsuccessful attempts in 1996 to rectify the situation by, inter alia, writing complaints to the Public Prosecutor who had imposed fines on him. The Government state that no official record exists to support these allegations.
10. The applicant furthermore appealed, on 12 February 2004, to the Amsterdam Court of Appeal (gerechtshof) against the refusal of the Public Prosecution Service (Openbaar Ministerie) to prosecute those responsible for the malicious vehicle registrations in his name. In its decision of 22 June 2005, the Court of Appeal considered, as relevant to the case before the Court, that although the police could admittedly have proceeded more effectively with the investigation, too much time had passed (the events in issue, i.e. the malicious registration of motor vehicles, had taken place between November 1995 and March 1997) to expect any viable investigation to be conducted by the authorities concerned. The Court of Appeal therefore dismissed the appeal, but it nevertheless noted that it was in favour of the course of action as advised by the Advocate-General, namely a complete remission in a single administrative act (eenmalige sanering) of all (administrative) sanctions imposed on the applicant which were an effect of the malicious registrations. According to the applicant’s representative, no such remission took place. Moreover, the Tax and Customs Administration (Belastingdienst) initially prevented the applicant from being eligible for debt rescheduling under the Debt Rescheduling (Natural Persons) Act (Wet Schuldsanering Natuurlijke Personen).
11. On 16 January 2004 the applicant again requested the Agency to annul, with retroactive effect, the motor vehicle registrations in question.
12. On 3 April 2004 the Agency partially granted the request, cancelling 240 registrations as of that date. The remaining registrations were no longer in the applicant’s name at that time. The Agency expressly stated that it was unable to cancel the registrations retroactively, as had been requested by the applicant, as that would be detrimental to the reliability of the motor vehicle registration system.
13. The applicant lodged an objection on 28 April 2004, arguing, in particular, that the motor vehicle registration system was already flawed owing to the existence of the impugned registrations; that not granting the desired retroactive effect would have substantial financial consequences for him; and that the Agency, in 1996, had offered to annul the stolen driving licence for purposes of motor vehicle registrations on condition that the applicant apply for a new licence, which condition the applicant had been unable to meet at that time for financial reasons.
14. The applicant’s objection was dismissed on 2 September 2004. The Agency decided that cancellation of registrations with retroactive effect would lead to legal uncertainty and would entail the Agency’s interference with competencies of other authorities, e.g. the Public Prosecution Service or the Tax and Customs Administration, in that it could affect the legality of decisions which those authorities had made or might make on the basis of the contents of the motor vehicle registration system.
15. The applicant appealed against the Agency’s decision to the Rotterdam Regional Court (rechtbank), arguing in particular that he had, already in 1996, made a similar request to the Agency and had reported the fraudulent use of his driving licence to the police, yet to no avail. The applicant also submitted that the motor vehicle registration system, as it was at the relevant time, had been sensitive to fraud, a risk which, in the applicant’s view, should not be for the general population to bear. He argued furthermore that the requirement which existed in 1996 to have to apply for a new driving licence in order to disallow motor vehicle registrations with a stolen one was unjust and discriminatory.
16. The Regional Court concurred with the Agency’s decision and considered that no exceptional circumstances existed warranting a deviation from the standard practice not to grant retroactive effect. It noted in that respect that, although he had lodged complaints in 1996, the applicant had allowed more than seven years to pass before starting the proceedings at issue.
17. On 5 April 2005 the applicant appealed against the Regional Court’s judgment to the Administrative Jurisdiction Division of the Council of State (Afdeling Bestuursrechtspraak van de Raad van State – “the Administrative Jurisdiction Division”). The applicant argued, in relevant part, that his rights under Article 8 of the Convention were being violated due to the unlawful registrations of motor vehicles in his name and that the vehicle registration system was flawed in that it allowed such large-scale fraud to occur so easily.
18. The Administrative Jurisdiction Division gave its decision on 7 December 2005. Its reasoning included the following:
“As the Administrative Jurisdiction Division has held [in an earlier case], it cannot be found that the Agency’s policy of denying in principle retroactive effect to decisions ... to cancel the registration of a vehicle is not reasonable. The purity of the vehicle register and legal certainty of the registration of vehicles justify such a policy, as the Regional Court has rightly held. The Regional Court has rightly held that the Agency was not obliged to consider the applicant’s submissions in this matter a ground to deviate from this policy and retroactively cancel the registration of the said motor cars with effect from the date requested by the applicant. That being so, the applicant’s complaint that the Regional Court’s decision is incomprehensible and improperly reasoned must fail.
As regards the [applicant’s] argument that the Vehicle Registration Regulations (Kentekenreglement) violate, inter alia, Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data (Official Journal L 281, 23/11/1995; hereafter: the Directive), the Administrative Jurisdiction Division finds as follows. Contrary to what the [applicant] suggests, it cannot be deduced from the fact that the guideline includes a right of correction that the processor of those personal data is obliged to do so sua sponte and unasked and might not make the desired correction dependent on a request to that effect. In addition, contrary to what the [applicant] suggests, the processing of personal data pursuant to the Directive is also permitted without the permission of the person concerned if such processing is necessary for the performance of a task carried out in the exercise of official authority. In the opinion of the Administrative Jurisdiction Division, the use of a driving license involves recording the data of that driving license in a data filing system and processing them in the performance of the duty to secure compliance with legal obligations such as those here in issue. The [applicant’s] complaint fails.
Nor does the Administrative Jurisdiction Division agree with the [applicant] that the Vehicle Registration Regulations violate the right to liberty and security of person, laid down in Article 5 of the Convention and Article 9 of the International Covenant on Civil and Political Rights. Regardless of whether these provisions can be relevant to the decision-making process based on the Vehicle Registration Regulations – these regulations do not, after all, provide for the deprivation of liberty referred to by the [applicant] – these provisions contain an exception to the right to liberty and security of person in order to secure the fulfilment of an obligation prescribed by law. In this connection, the Administrative Jurisdiction Division notes in addition that this exception is also covered by the circumstance, referred to by the [applicant], that he was deprived of his liberty because he had not taken the measures needed to correct the [registration of vehicles wrongly registered in his name].”
19. No further appeal lay against this decision.
20. The 1994 Road Traffic Act (Wegenverkeerswet 1994) entered into force on 1 January 1995. At the relevant time, as pertinent to the case before the Court, it provided as follows:
...
3. A person to whom a registration number (kenteken) for a vehicle or trailer is issued will be treated, subject to evidence to the contrary, as the owner or registered user (houder) of that vehicle or trailer for the purposes of the provisions laid down by or pursuant to this Act. ...
1. The Government Road Transport Agency shall keep a vehicle registration system listing the registration numbers issued.
2. The vehicle registration system shall contain data concerning vehicles and trailers for which a registration number has been issued and the name of the person to whom such registration numbers have been issued, as well as data concerning other vehicles and trailers in so far as such data:
(a) are necessary for the proper implementation of this Act and for the enforcement of the regulations laid down by or pursuant to this Act, or
(b) are necessary for the proper implementation of the Motor Vehicle Tax Act 1994, the Car and Motorcycle Tax Act 1992, the Motor Liability Insurance Act or other statutory provisions concerning vehicles and trailers, and for the enforcement of the regulations laid down by or pursuant to these statutory provisions. ...
1. Without prejudice to section 122 and section 131, subsection 3, a driving licence will cease to be valid:
(a) when a new or replacement driving licence is issued;
(b) when it is exchanged for a driving licence issued to the holder by a competent authority outside the Netherlands for the category or categories of motor vehicle to which the exchange relates;
(c) during a period in which the holder is disqualified from driving vehicles;
(d) if unauthorised changes are made to it;
(e) upon the death of the holder; and
(f) when it is declared invalid for the category or categories to which the declaration of invalidity relates. ...”
21. At the relevant time, the Vehicle Registration Regulations, in their relevant part, provided as follows:
1. The registration in the register will lapse as soon as:
...
(h) Our Minister has declared the registration certificate to be invalid ...;
...
(k) Our Minister has declared the registration to have lapsed on the grounds of a request as referred to in paragraph 2.
2. A person who is, in his view, wrongly listed in the register as the holder of a registration certificate may request Our Minister to arrange for the registration to be cancelled. Our Minister will arrange for the registration to be cancelled if he considers that sufficient grounds exist for this. ”
22. At the relevant time, the Vehicle Registration Certificates and Registration Plates (Proof of Identity) Order (Regeling legitimatievoorschriften kentekenbewijzen en kentekenplaten), in its relevant part, provided as follows:
1. The following identity documents shall be presented with an application for part II of a registration certificate if the application is submitted by a natural person:
(a) a valid driving licence ...”
23. At the relevant time, the Traffic Regulations Administrative Enforcement Act (Wet Administratiefrechtelijke Handhaving Verkeersvoorschriften), in its relevant part, provided as follows:
If it has been established that a vehicle for which a registration number has been issued was involved or instrumental in the action [i.e., for present purposes, the offence] and the identity of the driver of the vehicle cannot immediately be established, the administrative fine will be imposed on the person listed in the vehicle registration system as the holder of the registration certificate at the time of the action. The provisions of section 8 will be drawn to his attention.
1. The person to whom a decision is addressed may challenge the imposition of the administrative sanction by applying to the public prosecutor in the district court area in which the action took place. If it cannot be determined in which district court area the action took place, the application may be made to the public prosecutor in the district court area in which the person concerned has his place of residence. ...
If, in the case of section 5, the holder of the registration certificate as listed in the vehicle registration system plausibly shows that the vehicle was used by another person against his will and that he could not reasonably have been expected to prevent this use, if he produces a written contract of hire entered into for a term not exceeding three months showing who was the hirer of the vehicle at the time of the action or if he produces a notice of indemnity issued pursuant to the Road Traffic Act 1994 showing that at the time of the action he was no longer the owner or keeper of the vehicle concerned, the public prosecutor will quash the decision. In such a case the public prosecutor may impose an administrative sanction on the person who performed the action, the person who was the hirer of the vehicle or the person to whom the vehicle was transferred. [Section 6] will then apply by analogy.
1. A person who has challenged the imposition of the administrative sanction may apply to the District Court (kantonrechter) within whose area the action took place or, in the case referred to in section 6, subsection 1, second sentence, to the District Court within whose area the person concerned has his place of residence, for judicial review of the decision of the public prosecutor.
2. The application for review may be lodged on the grounds that:
(a) the action did not occur or, other than in the case of section 5, the person to whom the decision is addressed did not perform the alleged action;
(b) the public prosecutor should have decided that the circumstances in which the action occurred did not warrant the imposition of an administrative sanction or that, in view of the circumstances of the person concerned, the administrative sanction should have been set at a lower amount;
(c) the public prosecutor wrongly failed to quash the decision by virtue of section 8. ...
1. If the amount [of the administrative fine] has not been recovered – or not recovered in full – in accordance with sections 26 and 27, the public prosecutor may, no later than three years after a final and unappealable decision has been given in respect of the imposed administrative fine, apply to the District Court in the area in which the person subject to the fine has his address for an order authorising him to apply one or more of the following coercive measures for each action in respect of which an administrative sanction has been imposed:
(a) taking the vehicle which was involved in the action out of commission (or, if it cannot be found, a similar vehicle in the possession of the person on whom the administrative sanction has been imposed) for a maximum of one month;
(b) confiscating the driving license of the person on whom the administrative sanction has been imposed for a maximum of one month;
(c) committing the person on whom the administrative sanction has been imposed to a remand centre for a maximum of one week.
...
2. No decision will be made on the application until after the person on whom the sanction has been imposed has been heard by the District Court or has in any event been properly summonsed to appear. No appeal or other remedy lies against the decision. ...”
24. Section 123(1)(h) of the 1994 Road Traffic Act, enacted by the Act of 28 June 2006, Staatsblad (Official Gazette) 2006, no. 321, provides that a driving license will cease to be valid when it is reported missing. It entered into force on 1 October 2006.
25. Also on 1 October 2006 a new model driving licence was introduced. It includes a number of security features aimed at countering misuse which the previous models lacked.
26. As relevant to the case before the Court, Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data (Official Journal L 281, 23/11/1995) provides as follows:
Definitions
For the purposes of this Directive:
(a) ’personal data’ shall mean any information relating to an identified or identifiable natural person (‘data subject’); an identifiable person is one who can be identified, directly or indirectly, in particular by reference to an identification number or to one or more factors specific to his physical, physiological, mental, economic, cultural or social identity;
(b) ’processing of personal data’ (‘processing’) shall mean any operation or set of operations which is performed upon personal data, whether or not by automatic means, such as collection, recording, organization, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, blocking, erasure or destruction;
(c) ’personal data filing system’ (‘filing system’) shall mean any structured set of personal data which are accessible according to specific criteria, whether centralized, decentralized or dispersed on a functional or geographical basis;
(d) ’controller’ shall mean the natural or legal person, public authority, agency or any other body which alone or jointly with others determines the purposes and means of the processing of personal data; where the purposes and means of processing are determined by national or Community laws or regulations, the controller or the specific criteria for his nomination may be designated by national or Community law;
(e) ’processor’ shall mean a natural or legal person, public authority, agency or any other body which processes personal data on behalf of the controller;
(f) ’third party’ shall mean any natural or legal person, public authority, agency or any other body other than the data subject, the controller, the processor and the persons who, under the direct authority of the controller or the processor, are authorized to process the data;
(g) ’recipient’ shall mean a natural or legal person, public authority, agency or any other body to whom data are disclosed, whether a third party or not; however, authorities which may receive data in the framework of a particular inquiry shall not be regarded as recipients;
(h) ’the data subject’s consent’ shall mean any freely given specific and informed indication of his wishes by which the data subject signifies his agreement to personal data relating to him being processed.
1. Member States shall provide that personal data must be:
(a) processed fairly and lawfully;
(b) collected for specified, explicit and legitimate purposes and not further processed in a way incompatible with those purposes. Further processing of data for historical, statistical or scientific purposes shall not be considered as incompatible provided that Member States provide appropriate safeguards;
(c) adequate, relevant and not excessive in relation to the purposes for which they are collected and/or further processed;
(d) accurate and, where necessary, kept up to date; every reasonable step must be taken to ensure that data which are inaccurate or incomplete, having regard to the purposes for which they were collected or for which they are further processed, are erased or rectified;
(e) kept in a form which permits identification of data subjects for no longer than is necessary for the purposes for which the data were collected or for which they are further processed. Member States shall lay down appropriate safeguards for personal data stored for longer periods for historical, statistical or scientific use.
2. It shall be for the controller to ensure that paragraph 1 is complied with.
Member States shall provide that personal data may be processed only if:
(a) the data subject has unambiguously given his consent; or
(b) processing is necessary for the performance of a contract to which the data subject is party or in order to take steps at the request of the data subject prior to entering into a contract; or
(c) processing is necessary for compliance with a legal obligation to which the controller is subject; or
(d) processing is necessary in order to protect the vital interests of the data subject; or
(e) processing is necessary for the performance of a task carried out in the public interest or in the exercise of official authority vested in the controller or in a third party to whom the data are disclosed; or
(f) processing is necessary for the purposes of the legitimate interests pursued by the controller or by the third party or parties to whom the data are disclosed, except where such interests are overridden by the interests for fundamental rights and freedoms of the data subject which require protection under Article 1 (1).
Right of access
Member States shall guarantee every data subject the right to obtain from the controller:
(a) without constraint at reasonable intervals and without excessive delay or expense:
- confirmation as to whether or not data relating to him are being processed and information at least as to the purposes of the processing, the categories of data concerned, and the recipients or categories of recipients to whom the data are disclosed,
- communication to him in an intelligible form of the data undergoing processing and of any available information as to their source,
- knowledge of the logic involved in any automatic processing of data concerning him at least in the case of the automated decisions referred to in Article 15 (1);
(b) as appropriate the rectification, erasure or blocking of data the processing of which does not comply with the provisions of this Directive, in particular because of the incomplete or inaccurate nature of the data;
(c) notification to third parties to whom the data have been disclosed of any rectification, erasure or blocking carried out in compliance with (b), unless this proves impossible or involves a disproportionate effort.”
VIOLATED_ARTICLES: 8
VIOLATED_PARAGRAPHS: 8-1


ITEMID: 001-120617
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: ADMISSIBILITY
DATE: 2013
DOCNAME: BOECKEL AND GESSNER-BOECKEL v. GERMANY
IMPORTANCE: 3
CONCLUSION: Inadmissible
JUDGES: Aleš Pejchal;André Potocki;Angelika Nußberger;Ganna Yudkivska;Mark Villiger;Paul Lemmens
TEXT: 1. The applicants, Ms Sabine Boeckel and Ms Anja Gessner-Boeckel, are German nationals, who were born in 1965 and 1969 respectively and live in Hamburg. They were represented before the Court by Ms I. Quirling, a lawyer practising in Hamburg.
3. Since 2001, the applicants live together in a registered civil partnership (eingetragene Lebenspartnerschaft). On 22 December 2008 the second applicant gave birth to a son, L.
4. On 19 January 2009 the Hamburg-Eimsbüttel Civil Registry Office issued a birth certificate naming the second applicant as L.’s mother. The space provided in the form for the father’s name was left blank.
5. On 25 February 2009 the first applicant and the second applicant concluded an agreement whereby the child L. would be adopted by the first applicant. On 27 January 2010 the Hamburg-Altona District Court granted the adoption order under section 9 § 7 of the Act on Registered Civil Partnerships (see paragraph 19, below) and declared that the child L. obtained the legal position of a child of both applicants.
6. In the meantime, on 17 March 2009 the applicants requested the Hamburg District Court to rectify the birth certificate by inserting the first applicant as L.’s second parent. They submitted that section 1592 § 1 of the Civil Code (see paragraph 18, below), stipulating that the father was the man who was married to the mother of the child at the time of birth, should be applied mutatis mutandis in case the mother lived in a registered civil partnership with another woman. They argued that it was irrelevant under section 1592 § 1 of the Civil Code whether the mother’s husband was indeed the biological father of the child born into the union. There was thus no reason to treat children born into a civil partnership any differently from children born in wedlock.
7. On 24 June 2009 the Hamburg District Court rejected the applicants’ request as being unfounded. The District Court considered that there was no reason to rectify the birth certificate, because the birth certificate was neither incorrect nor incomplete. The birth certificate documented the child’s descent. It contained the names of the parents the child descended from. It was irrelevant in this context whether the parents were married or not. The prerequisites of section 1592 of the Civil Code were clearly not met in the instant case.
8. The District Court further considered that there was no legal ground for inserting the first applicant as “second” mother into the birth certificate, as it was impossible that the child had descended from her. The mere fact that the child’s mother lived in a registered civil partnership when giving birth did not justify inserting a second parent. This was not called into question by the fact that section 1592 of the Civil Code contained the rebuttable presumption that the mother’s husband was the child’s father. In the instant case, there was no room for the presumption of the child’s descent from his mother’s partner; on the contrary, such descent could be ruled out.
9. The District Court finally observed that the possibility of adoption of the partner’s child under section 9 § 7 of the Law on Registered Civil Partnerships demonstrated that the legislator had been aware of the civil partner’s rights in respect of the other partner’s children. Under these circumstances, there was no room for an analogous application of section 1592 of the Civil Code in the instant case.
10. On 4 November 2009 the Hamburg Regional Court rejected the applicants’ appeal.
11. On 26 January 2010 the Hanseatic Court of Appeal rejected the applicants’ appeal on points of law. The Court of Appeal confirmed the lower courts’ reasoning. It further considered that the applicants had not been discriminated against in their capacity as women living in a registered civil partnerships vis-à-vis persons living in wedlock. It could not be said that persons living in a civil partnership were discriminated against or that they were deprived of certain rights enjoyed by married couples, as a child could only descend from a specific mother and father. This was excluded on biological grounds in the case of two women living in a registered civil partnership.
12. The Court of Appeal further considered that it followed from the above considerations that there had been no violation of the applicants’ rights under Article 14 in conjunction with Article 8 of the European Convention on Human Rights.
13. On 2 July 2010 the Federal Constitutional Court (case-file no. 1 BvR 666/10) refused to accept the applicants’ constitutional complaint for adjudication. The Constitutional Court observed, at the outset, that there was no indication that the lower courts had failed to take into account the requirements of the European Convention on Human Rights. It further considered that the refusal to insert the first applicant into the birth certificate prior to adoption did not violate the applicants’ right to the enjoyment of their family life. Article 6 of the Basic Law protected the family as a union of parents and children. It did not matter in this respect whether the children descended from their parents and whether they were born in or out of wedlock. However, the entry of the name of a civil partner into the birth certificate did not concern the family life between the civil partners and the child. The birth certificate had the sole purpose of giving evidence of the child’s descent. It did not interfere in any way with the child’s living together with his or her parents within the family.
14. The Constitutional Court further considered that the applicant had not been discriminated against. Civil partners did not have a right to be treated equally to legal or biological fathers with respect to their entry into the birth certificate. In this respect, the two groups were not comparable, as biological or legal paternity established a legal relationship comprising mutual rights and duties. Such a legal relationship did not exist between the civil partner and the child, as long as the child was not adopted.
15. The fact that there was no legal presumption that the mother’s civil partner was the child’s second parent did not amount to discrimination visà-vis married couples, as the legal presumption was based on biological descent and did not have a basis in the case of civil partners.
16. Article 6 of the Basic Law provides
“(1) Marriage and the family shall enjoy the special protection of the State.
(2) The care and upbringing of children is the natural right of parents and a duty primarily incumbent upon them. The State shall watch over them in the performance of this duty.”
17. Section 54 of the Act on Civil Status (Personenstandsgesetz) provides:
“(1) The entry into the civil status register gives evidence of the fact...of birth and of the further information given in this context and the further information on the civil status of the persons the entry refers to.
(2) Certificates on personal status have the same evidentiary value as the entry into the civil status register.
(3) The incorrectness of the documented facts may be proofed...”
18. The relevant provisions of the German Civil Code provide:
Section 1591 Maternity
“The mother of a child is the woman who gave birth to it.”
Section 1592 Paternity
“The father of a child is the man
1. who is married to the mother of the child at the date of the birth,
2. who has acknowledged paternity or
3. whose paternity has been judicially established...”
Section 1754 Effect of Adoption
“(1) If a married couple adopt a child or if a spouse adopts a child of the other spouse, the child attains the legal position of a child of both the spouses.
(2)...
(3) The parental custody is held in the cases of subsection (1) by the spouses jointly...”
19. Section 9 of the Act on Registered Civil Partnerships (Lebenspartnerschaftsgesetz) provides insofar as relevant:
Parental responsibility of the civil partner
“(1) If one civil partner has the sole custody over his or her child, he or she can arrange with his or her civil partner a right of co-decision concerning matters of the child’s daily life...
(2) In case of clear and present danger to the child, the civil partner has the right to take all relevant legal decisions that are necessary for the child’s well-being; the civil partner who has the sole custody of the child is to be informed without delay.
...
(7) A civil partner may adopt a child of his or her civil partner. In this case sections...1754 §§ 1 and 3 ... of the German Civil Code shall apply accordingly.”