ITEMID: 001-114625
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: ADMISSIBILITY
DATE: 2012
DOCNAME: GIZA v. POLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: George Nicolaou;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Päivi Hirvelä;Vincent A. De Gaetano;Zdravka Kalaydjieva
TEXT: 1. The applicant, Mr Adam Giza, is a Polish national, who was born in 1988 and lives in Radom. He was represented before the Court by Mr M. Pietrzak, a lawyer practising in Warszawa.
2.
3. On 12 April 2006 a seventeenyearold Belgian teenager was murdered at the Brussels Central train station. Two individuals, who attempted to steal his MP3 player, stabbed him five times causing his death.
4. The applicant, who had been identified by surveillance cameras as one of the attackers, at that time also seventeen years old, fled Belgium and was arrested in Poland on 27 April 2006. A European arrest warrant (the EAW) was issued against the applicant by the Belgian authorities.
5. On 31 May 2006 the Warsaw Regional Court (Sąd Okręgowy) decided to agree to the applicant’s surrender to Belgium on the basis of the EAW provided that after the trial he would be returned to Poland in order to serve his sentence. The decision was upheld on 25 July 2006 by the Warsaw Court of Appeal.
6. The applicant was transferred to Belgium on 2 August 2006.
7. On 5 June 2008 the applicant was convicted by the first-instance court in Brussels of armed robbery resulting in death and sentenced to twenty years’ imprisonment.
8. On 23 September 2008 the judgment was upheld by the Brussels Assize Court.
9. The Belgian authorities informed the Polish authorities that the applicant’s sentence would come to an end on 28 January 2027 and that he could apply for conditional release as of 2 October 2013.
10. On 21 April 2010 the applicant was transferred to Poland for the purpose of continuing his imprisonment.
11. On 6 May 2010 the Warsaw Regional Court gave a ruling on the legal qualification of the offence under Polish law and on the enforcement of the sentence. It considered that the offences of which the applicant had been convicted in Belgium fulfilled the description of offences prohibited by Articles 280 § 2 and 156 § 3 of the Polish Criminal Code. The court further considered that it was bound by the sentence imposed abroad, although twenty years’ imprisonment did not appear in the range of penalties possible under Polish law. Finally, the court decided not to rule on the matter of conditional release as the Belgian judgment did not include a provision on the length of the sentence the applicant would have to serve before he was eligible to apply for conditional release. Therefore, Polish rules on enforcement of sentences would apply to the case.
12. The applicant appealed against the judgment. He complained in particular about the decision not to apply regulations pertaining to conditional release that were binding in the sentencing country, Belgium.
13. On 6 July 2010 the Warsaw Court of Appeal upheld the judgment. The court considered that matters of conditional release related to enforcement of the sentence and thus should not be dealt with at the instant stage. The Court of Appeal reiterated that the sentencing judgment did not contain a provision regulating the date on which the applicant was eligible to apply for conditional release. Moreover, according to both Belgian and Polish law, conditional release was facultative and depended on a positive criminological prognosis of the prisoner and his behaviour during the serving of the sentence. Conditional release should not be considered as a right automatically acquired if the conditions provided by law were fulfilled. The judgment is final.
14. Relevant articles of the Polish Code of Criminal Procedure (the CCP) read at the material time:
15. Article 607s § 4of the CCP:
“...In its decision the court indicates the qualification of the offence according to Polish law. The court is bound by the sentence given...”
16. Article 607t of the CCP:
“1. If the European arrest warrant was issued with the purpose of conducting a criminal prosecution of a person who is a Polish national or benefits from asylum in the Republic of Poland, the surrender may be subject to the condition that the person is returned to Poland after final termination of the proceedings in the issuing Member State.
2. If in the situation described above the person is sentenced to a penalty of deprivation of liberty ... the provisions of Article 607s §3-5 shall apply.”
17. Article 5 § 4 of the Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States (the Framework Decision), dealing with guarantees to be given by the issuing Member State in particular cases, states as follows:
“where a person who is the subject of a European arrest warrant for the purposes of prosecution is a national or resident of the executing Member State, surrender may be subject to the condition that the person, after being heard, is returned to the executing Member State in order to serve there the custodial sentence or detention order passed against him in the issuing Member State.”


ITEMID: 001-111427
LANGUAGEISOCODE: ENG
RESPONDENT: SVK
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF N.B. v. SLOVAKIA
IMPORTANCE: 3
CONCLUSION: Preliminary objection dismissed (Article 34 - Victim);Remainder inadmissible;Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);No violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Violation of Article 8 - Right to respect for private and family life (Article 8 - Positive obligations;Article 8-1 - Respect for family life;Respect for private life);Non-pecuniary damage - award
JUDGES: David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä
TEXT: 5. The applicant is of Roma ethnic origin. She was born in 1983 and lives in Nálepkovo.
6. On 25 April 2001, during the delivery of her second child, the applicant was sterilised by means of tubal ligation at the gynaecology and obstetrics department of the hospital in Gelnica (“the Gelnica Hospital”). The Gelnica Hospital was a public hospital administered by the Ministry of Health at that time and until the end of 2002.
7. During her pregnancy the applicant visited her doctor regularly. She was informed that the delivery would be via caesarean section.
8. According to the applicant’s medical records, the applicant was brought to the hospital in labour by an ambulance at 7.50 a.m. on 25 April 2001. At 9 a.m. on the same day, when her contractions were occurring at five minute intervals, the applicant was administered premedication in view of the envisaged caesarean section. It included a benzodiazepine derivative which is used for its sedative, anxiety-relieving and muscle-relaxing effects.
9. Following a handwritten entry on the administration of the premedication, the medical record contains a typed entry on the next page, according to which the applicant had requested that a sterilisation procedure be carried out on her reproductive organs during the delivery, and that she had been informed about the irreversible nature of such an operation and of her being unable to conceive a child in the future. The entry is signed by a doctor and it also bears the signature of the applicant.
10. The applicant later declared that, after the administration of the premedication, she had been approached by a member of the medical staff who was carrying three A4 size pieces of paper. The staff member had taken her hand to help her sign the papers. The applicant had been in labour and had felt as if she were intoxicated under the influence of the medication. She had neither had the strength nor the will to ask what the documents contained. She remembers a doctor who was present saying that she would die unless she signed the papers. She had therefore not objected to signing the papers with the assistance of the staff member.
11. The applicant’s child was born at 9.35 a.m.
12. Another section of the medical records, dated 11 May 2001, indicates that the child was delivered by caesarean section.
13. According to a surgical report in the applicant’s medical file, in the course of the operation the doctors discovered a large fissure running the length of the scar from a previous caesarean section on the applicant. After the child’s delivery, the doctors discovered a rupture of the applicant’s uterus. It had probably been the result of the secondary healing of a suture which had become loose during the course of the applicant’s second pregnancy. As a result, the applicant’s life had been at risk. The doctors had therefore considered a hysterectomy as a radical solution to the problem. However, in view of the patient’s age, they had preferred to carry out reconstructive surgery despite the risk of complications. Since the applicant’s uterus was severely damaged, it had been considered certain that a similar situation would occur in any future pregnancy and would pose a grave risk to the life of the applicant and her foetus. After the reconstructive surgery, the doctors had therefore decided to sterilise the applicant in accordance with the request she had made prior to the operation. The report indicates that no complications occurred in the course of the surgery.
14. The applicant was released from the Gelnica Hospital on 11 May 2001.
15. The medical records also contain a copy of a decision of the sterilisation commission established at the Gelnica Hospital. The decision is dated 15 May 2001 and indicates that the commission approved, ex post facto, the applicant’s sterilisation, which had been carried out at her request. According to the document, a sterilisation procedure had been justified within the meaning of the Sterilisation Regulation 1972 in view of the applicant’s health.
16. At the time of the delivery and sterilisation procedure the applicant was underage. She reached the age of majority ten days later. Her mother, who was the applicant’s representative while she was under the age of majority, was not present during the delivery and she had not been asked to give her consent to the sterilisation.
17. The applicant learned about the operation and its nature in December 2002, when her lawyer reviewed her medical file in the Gelnica Hospital.
18. According to the applicant, as a result of the operation, she has suffered from serious physical and mental health problems. The applicant’s psychological problems were recognised by a psychologist in a statement dated 7 September 2007. She maintained that she had been ostracised by her husband and the Roma community because of her infertility.
19. With a view to describing the overall situation and context in which she had been sterilised, the applicant submitted that she had experienced inferior treatment during her stay at the Gelnica Hospital. In particular, the applicant indicated that patients in the gynaecological and obstetrics ward had been segregated according to their ethnic origin. The applicant had been accommodated in a “Gypsy room” separated from women who were not of Roma ethnic origin. The applicant considered that her ethnic origin had played a decisive role in the decision of the medical staff to sterilise her. Citing a number of international reports, the applicant submitted that discrimination against Roma in Slovakia extended to all facets of their lives.
20. The Government were in disagreement with the applicant’s allegations.
21. On 8 December 2004 the applicant sued the Gelnica Hospital for damages before the Spišská Nová Ves District Court. Apart from the relevant provisions of the Slovakian Civil Code, she also relied on Articles 3, 8 and 12 of the Convention. The applicant argued that she had been sterilised contrary to the relevant provisions of Slovak law, as her mother had not given consent to the operation. It had also run counter to relevant international human rights standards. The applicant claimed the equivalent of 17,310 euros (EUR) in damages and also claimed reimbursement of her costs.
22. Following the privatisation of the Gelnica Hospital, the District Court substituted the Gelnica Municipality as the defendant in the proceedings on 25 May 2005.
23. On 10 February 2006 the District Court dismissed the applicant’s action. With reference to the evidence available, it concluded that the operation had been necessary with a view to saving the applicant’s life. As such, it could have been performed without her prior consent.
24. On 28 March 2006 the applicant appealed. She maintained, inter alia, that her ethnic origin had motivated the doctors to sterilise her.
25. On 28 February 2007 the Košice Regional Court quashed the firstinstance judgment. It expressed the view that the sterilisation operation on the applicant could not be considered as life-saving surgery and ordered the first-instance court to re-examine the case in light of that opinion.
26. An expert opinion submitted to the District Court indicated that during the caesarean section the doctors had discovered an extensive injury to the applicant’ uterus. A hysterectomy, which they had originally considered carrying out, would have been, in the expert’s view, acceptable medical practice in the circumstances. The expert considered the alternative solution which the doctors had chosen, namely reconstructive surgery of the uterus, as an intervention which had saved the applicant’s life in the circumstances. However, the subsequent sterilisation of the applicant had not been indispensable with a view to preventing an imminent danger to her life.
27. On 7 September 2007 a psychology centre conducted an examination of the applicant and issued a report at the request of the applicant’s representative. It was noted that during the examination the applicant had indicated that there was conflict in her marriage, as her husband frequently reproached her for her inability to have more children. The applicant had further indicated that she suffered from stomach pains, loss of appetite and breathing problems. The psychologist concluded that the depressive and pessimistic moods from which the applicant suffered were possibly related to her inability to conceive.
28. In her submissions to the District Court the applicant also relied on views expressed by several experts on sociology and Roma culture indicating that the inability to have children strongly diminished the position of a woman and her family in the Roma community.
29. On 14 May 2008 the District Court ordered the defendant to pay the equivalent of EUR 1,593 to the applicant. It further held that none of the parties were entitled to have the costs of the proceedings reimbursed.
30. The District Court established that the medical staff had failed to obtain informed consent to the applicant’s sterilisation prior to the operation. At the relevant time, the applicant had been underage and her legal representative had not signed the request. It determined the amount of compensation with reference to Regulation 32/1965. The court did not consider it necessary to avail itself of its right to increase the award of compensation above the rates indicated in the regulation. It noted that the applicant had married the father of her children since bringing the action and had not shown that her position in the Roma community had deteriorated.
31. By an additional judgment of 11 June 2008 the District Court formally rejected the remainder of the applicant’s claims and ordered the defendant to reimburse the State’s costs incurred in the proceedings.
32. On 23 June 2008 the applicant appealed. She argued that the compensation awarded to her was insufficient in view of the scope and consequences of the damage which she had suffered, and complained that the District Court had dismissed her request for reimbursement of her legal costs.
33. On 27 October 2009 the Regional Court upheld the first-instance judgment on the merits to the extent that it was challenged by the applicant. The Regional Court referred to the opinion of an expert indicating that a third pregnancy would be highly risky for both the applicant and the foetus. If the applicant had not agreed to her sterilisation, she would have been required to confirm in writing that she had been advised that any future pregnancy would threaten her life. Albeit that it could not be established with absolute certainty that such a situation would occur, the existence of such a risk nevertheless justified the conclusion that an increase in compensation under sections 6(2) and 7(3) of Regulation 32/1965 was not justified in the circumstances.
34. The Regional Court further quashed the first-instance decision as to the costs of the proceedings and ordered the District Court to re-examine the issue.
35. On 26 August 2008 the applicant filed a criminal complaint with the District Prosecutor’s Office in Spišská Nová Ves. She alleged that the sterilisation operation had been unlawful and had caused her serious bodily harm. The applicant also relied on her rights under the Convention.
36. On 20 October 2008 the District Directorate of the Office of the Judicial and Criminal Police in Spišská Nová Ves dismissed the applicant’s complaint. It concluded that no offence had been committed, as the medical staff involved had acted with a view to protecting the applicant’s life and health. Furthermore, it was still possible for the applicant to conceive by means of in vitro fertilisation.
37. On 14 November 2008 the Spišská Nová Ves District Prosecutor’s Office dismissed the applicant’s complaint against that decision.
38. On 14 January 2009 the Košice Regional Prosecutor’s Office quashed the lower prosecutor’s decision as being premature.
39. Subsequently, the police started a criminal investigation. They took statements from the applicant, her mother and a doctor from the Gelnica Hospital. The doctor stated that complications had occurred in the course of the delivery, as a result of which the applicant’s life had been at risk. It had therefore been decided to perform a sterilisation, with the applicant’s approval, as a life-saving procedure. In contrast, an expert provided an opinion to the effect that it had not been necessary to sterilise the applicant during the delivery with a view to saving her life. Both the doctor and the expert concurred that the operation had not prevented the applicant from becoming pregnant by means of assisted reproduction.
40. On 31 July 2009 the police closed the investigation, concluding that no criminal offence had been committed.
41. On 16 September 2009 the Spišská Nová Ves District Prosecutor’s Office dismissed the applicant’s complaint against that decision. It held, with reference to an expert opinion, that the operation had become necessary as, in the course of the delivery, extensive bleeding had occurred due to a rupture of the applicant’s uterus. In that situation, the doctors had had to take a decision immediately. After consultation with the head physician, they had decided not to carry out a hysterectomy, which was normally indicated in similar situations, but had elected to reconstruct the uterus with a view to preserving it. The surgical team had then carried out a sterilisation by means of tubal ligation so that the applicant could lead a normal life. The applicant had not suffered irreversible damage to her health and she had given her consent to the procedure. She had reached the age of majority only ten days thereafter. Prior to the delivery she had lived with her partner and had taken care of one child.
42. On 18 November 2009 the Košice Regional Prosecutor’s Office, in response to a complaint by the applicant, upheld the findings reached by the police and the District Prosecutor’s Office. The letter informing the applicant of this decision further stated that the above-mentioned findings of the civil courts in relation to the case did not bind the prosecuting authorities.
43. At the applicant’s request, a prosecutor from the General Prosecutor’s Office reviewed the case. In a letter of 8 March 2010 the prosecutor admitted that the operation had not been consented to by the applicant’s representative, contrary to the relevant law. That did not mean, however, that the doctors had committed an offence. In particular, they had acted in good faith with a view to protecting the applicant, as they had considered the operation necessary in view of the applicant’s health.
44. The public prosecutor noted that the applicant had signed the request while experiencing labour pains and that her sterilisation had not been a lifesaving intervention. The provisions of the Sterilisation Regulation 1972 had been interpreted and applied for many years in such a manner that, where it was medically indicated and where the prior agreement of the woman concerned was obtained, sterilisation was carried out immediately after delivery by means of caesarean section.
45. On 18 January 2010 the applicant lodged a complaint with the Constitutional Court. She alleged a breach, in the above civil and criminal proceedings, of her rights under Articles 3, 8, 13 and 14 of the Convention, of several provisions of the International Convention on the Elimination of All Forms of Racial Discrimination, of the Convention on the Elimination of All Forms of Discrimination against Women, and a number of constitutional provisions. As regards the civil proceedings, she also alleged a breach of Article 6 of the Convention.
46. The Constitutional Court dismissed the complaint on 5 May 2010. It held that the prosecuting authorities involved could not be held liable for the alleged breach of the applicant’s substantive rights which had primarily resulted from her sterilisation in the Gelnica Hospital. As to the civil proceedings, the Constitutional Court found that the Košice Regional Court had given sufficient and relevant reasons for its judgment of 27 October 2009, which had therefore not been arbitrary. There was no appearance of a breach of Article 6 § 1 of the Convention in the proceedings leading to that judgment. The Constitutional Court further found no causal link between the Regional Court’s judgment and the other rights on which the applicant had relied.
47. The relevant domestic law, practice and international materials are set out in the judgment of V.C. v. Slovakia, no. 18968/07, §§ 57-86, 8 November 2011.
48. In addition, the following information is relevant to the present case.
49. The Convention for the Protection of Human Rights and Dignity of the Human Being with Regard to the Application of Biology and Medicine (Council of Europe Treaty Series No. 164) was ratified by Slovakia on 15 January 1998 and entered into force in respect of Slovakia on 1 December 1999. The corresponding notification, together with the text of the Convention, was published in the Collection of Laws under number 40/2000 on 10 February 2000. Article 6 § 2 reads as follows:
“Where, according to law, a minor does not have the capacity to consent to an intervention, the intervention may only be carried out with the authorisation of his or her representative or an authority or a person or body provided for by law.
The opinion of the minor shall be taken into consideration as an increasingly determining factor in proportion to his or her age and degree of maturity.”
50. Section 13(1) of the Health Care Act 1994 (“the 1994 Act”), in force at the relevant time, made medical treatment subject to the patient’s consent. A patient’s consent to medical procedures of a particularly serious character or which substantially affected a person’s future life had to be given in writing or in another provable manner (section 13(2)).
51. Pursuant to section 13(5) of the 1994 Act, in the case of patients under the age of majority consent to medical procedures of a particularly serious character within the meaning of section 13(2) was to be given by their representative upon the recommendation of a group of at least three experts. Patients over the age of sixteen who were deemed to be intellectually capable of assessing the envisaged procedure had to give their consent to such a procedure as well. The only exception to the foregoing concerned indispensable medical procedures which could not be delayed (section 13(6)).
52. Regulation 32/1965 (“the Regulation”) governed compensation for pain and impediments to a person’s integration in society which resulted from an injury, occupational disease or other damage to one’s health. It was repealed with effect from 1 January 2009.
53. Section 2(1) of the Regulation provided for compensation for pain resulting from damage to a person’s health, and for subsequent medical treatment and the elimination of the effects of such damage. The amount of the compensation for pain was to be determined in accordance with the principles and rates attached to the Regulation. It was to correspond to the scope of the damage to one’s health and the course of its treatment.
54. Section 4(1) of the Regulation governed compensation for damage to one’s health which demonstrably entailed negative consequences for the everyday life of the person concerned, for satisfying his or her living and social needs or for fulfilling his or her role in society. The compensation granted was to correspond to the nature of such negative consequences and their expected prognosis, and should reflect the extent to which a person’s life and integration in society were affected.
55. Pursuant to section 6(1) of the Regulation, compensation under section 4(1) of the Regulation was to be determined pursuant to the number of points which a medical expert attributed to a particular case on the basis of the rates attached to the Regulation. Paragraph 2 of section 6 allowed for the number of points assigned to be increased by up to one hundred per cent, depending on: (i) the prospects which the injured person had at the moment when his or her health was damaged; (ii) the injured person’s family life; or (iii) the injured person’s involvement in politics, culture or sport, their profession and/or their level of education.
56. Section 7 of the Regulation governed the amount of compensation. Its paragraph 2 limited the overall compensation to the equivalent of approximately EUR 8,000. Finally, paragraph 3 of section 7 entitled the courts to increase the award over and above the sums foreseen by the Regulation where it was justified by particular circumstances.
VIOLATED_ARTICLES: 3
8
VIOLATED_PARAGRAPHS: 8-1
NON_VIOLATED_ARTICLES: 3


ITEMID: 001-23176
LANGUAGEISOCODE: ENG
RESPONDENT: SVK
BRANCH: ADMISSIBILITY
DATE: 2003
DOCNAME: HEJDA v. SLOVAKIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant, Mr Vladislav Hejda, is a Slovakian national, who was born in 1936 and lives in Modra. The respondent Government were represented by Mr P. Vršanský, their Agent.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 28 February 1992 the applicant claimed restitution of real property before the Bratislava - vidiek District Court. The action was dismissed on 11 June 1992. The applicant appealed on 30 July 1992. On 10 February 1993 the Bratislava Regional Court ordered the defendant municipality to restore the property to the applicant within a month. The judgment became final and enforceable in April 1993.
On 6 May 1993 the defendant filed an appeal on points of law to the Bratislava - vidiek District Court.
On 12 July 1993 the applicant requested the Bratislava - vidiek District Court to enforce the Bratislava Regional Court’s judgment of 10 February 1993.
On 10 October 1994 the District Court submitted the case to the Supreme Court for a decision on the defendant’s appeal on points of law. On 27 October 1994 the Supreme Court returned the case to the District Court as the defendant had not paid the fees in full. An expert opinion was ordered with a view to establishing the value of the property in issue as it determined the amount of the court fee.
On 29 November 1995 the defendant municipality requested that the judgment should not be enforceable pending the outcome of the proceedings on the appeal on points of law.
On 26 February 1996 the defendant paid the fees of the proceedings concerning the appeal on points of law.
On 23 February 1999 the Bratislava III District Court, which had taken over the cases pending before the former Bratislava - vidiek District Court, granted the applicant’s request for enforcement of the Regional Court judgment of 10 February 1993. On 17 March 1999 the defendant municipality challenged this decision.
On 27 October 2000 the Supreme Court dismissed the defendant’s appeal on points of law.
On 13 February 2002 the applicant requested the Constitutional Court to order the enforcement of the Regional Court’s judgment of 10 February 1993 and of the Supreme Court’s judgment of 27 October 2000. The applicant further claimed 7,000,000 Slovakian korunas in compensation for the deterioration of the real property.
In a letter of 21 February 2002 a constitutional judge informed the applicant that his request for enforcement of a judicial decision and for damages fell within the jurisdiction of the general courts. The applicant was further informed that, as from 1 January 2002, the Constitutional Court had power to examine complaints under Article 127 of the Constitution concerning alleged violations of fundamental rights and freedoms and grant just financial satisfaction in cases where such a violation was found. The constitutional judge noted that in his letter the applicant did not allege a violation of his constitutional rights. The applicant was informed that no further action would be taken in respect of his letter.
On 20 April 2002 the Bratislava Regional Court upheld the enforcement order of 23 February 1999.
On 16 September 2002 the applicant requested the President of the Constitutional Court, with reference to his above submissions of 13 February 2002, to ensure that the final decision on his claim be complied with.
Article 48 (2) of the Constitution provides, inter alia, that every person has the right to have his or her case tried without unjustified delay.
As from 1 January 2002, the Constitution has been amended in that, inter alia, individuals and legal persons can complain about a violation of their fundamental rights and freedoms pursuant to Article 127 the relevant part of which reads as follows:
“1. The Constitutional Court shall decide on complaints lodged by natural or legal persons alleging a violation of their fundamental rights or freedoms or of human rights and fundamental freedoms enshrined in international treaties ratified by the Slovak Republic ... unless the protection of such rights and freedoms falls within the jurisdiction of a different court.
2. When the Constitutional Court finds that a complaint is justified, it shall deliver a decision stating that a person’s rights or freedoms set out in paragraph 1 were violated as a result of a final decision, by a particular measure or by means of other interference. It shall quash such a decision, measure or other interference. When the violation found is the result of the failure to act, the Constitutional Court may order that [the authority] which violated such rights or freedoms should take the necessary action. At the same time the Constitutional Court may return the case to the authority concerned for further proceedings, order that such an authority abstain from violating fundamental rights and freedoms ... or, where appropriate, order that those who violated the rights or freedoms set out in paragraph 1 restore the situation existing prior to the violation.
3. In its decision on a complaint the Constitutional Court may grant adequate financial satisfaction to the person whose rights under paragraph 1 were violated.” ...
The implementation of the above constitutional provisions is set out in more detail in Sections 49 - 56 of Act No. 38/1993 (the Constitutional Court Act), as amended with effect from 20 March 2002.
After 20 March 2002 the Constitutional Court delivered a number of decisions in which it found a violation of Article 48 (2) of the Constitution, ordered the general court concerned to avoid any further delays in the proceedings and awarded the successful complainants financial compensation in respect of delays which had already occurred.


ITEMID: 001-100666
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: ADMISSIBILITY
DATE: 2010
DOCNAME: NAGOVITSYN AND NALGIYEV v. RUSSIA
IMPORTANCE: 3
CONCLUSION: Inadmissible
JUDGES: Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens
TEXT: 1. The applicants are Russian nationals. The first applicant, Mr Yuriy Aleksandrovich Nagovitsyn (application no. 27451/09, lodged on 7 May 2009), was born in 1950 and lives in Kirov. The second applicant, Mr Magometgiri Khakyashevich Nalgiyev (application no. 60650/09 lodged on 20 October 2009), was born in 1949 and lives in Mayskoye, the Republic of Northern Osetiya-Alaniya.
2. The facts of the cases, as submitted by the applicants, may be summarised as follows.
3. The applicants sued the State authorities in domestic courts and obtained judgments in their favour.
4. In the case of Nagovitsyn, the Leninskiy District Court of Kirov on 31 May 2007 awarded the applicant two lump sums, of 42,773.06 and 4,452.37 Russian roubles (RUB), plus the sums of RUB 1,288.41 and 1,717.91, to be paid on a monthly basis on account of the applicant's participation in the cleaning-up operations following the Chernobyl disaster. The court ordered that the monthly payments be subsequently adjusted (index-linked) in accordance with the law.
5. In the case of Nalgiyev, the Nazranovskiy District Court of the Republic of Ingushetiya on 7 March 2007 awarded the applicant a lump sum of RUB 1,146,356 in salary arrears on account of his service on a territory subject to emergency rule.
6. The judgments in the applicants' favour became binding and enforceable on 10 July and 3 May 2007 respectively but remain unexecuted, either fully or in part. According to Mr Nagovitsyn, the monthly payments have not been index-linked by the debtor authority (the Kirov Federal Treasury Department), contrary to the court order. In the case of Nalgiyev, the defendant authority (the Prosecutor's Office of the Republic of Ingushetiya) failed to pay any of the judgment debt.
7. On 15 January 2009 the Court delivered the Burdov pilot judgment (see Burdov v. Russia (no. 2), no. 33509/04, ECHR 2009...). The pilot judgment ordered the respondent State, inter alia, to set up an effective domestic remedy which would secure adequate and sufficient redress for non-enforcement or delayed enforcement of domestic judgments. The Court also decided to adjourn, for one year from the date on which the judgment became final, the proceedings in all cases concerning solely the non-enforcement and/or delayed enforcement of domestic judgments ordering monetary payments by the State authorities (see Burdov (no. 2), cited above, § 143, and point 8 of the operative part).
8. Consequently, like numerous other persons in the same position, Mr Nagovitsyn and Mr Nalgiyev were informed by letters of 21 October 2009 and 29 January 2010 respectively that their cases would remain adjourned until 4 May 2010 and that the subsequent procedure would be determined in the light of the implementation of the pilot judgment by the Russian authorities.
9. On 4 May 2010 the Government informed the Court that in response to the pilot judgment two federal laws had been enacted, introducing a new domestic remedy in respect of lengthy judicial proceedings and delayed enforcement of domestic judgments against the State. The laws entered into force on the same date (“the Compensation Act”, see part B below).
10. In May 2010 the Registry of the Court informed the applicants in the present cases and all other applicants in the same position of the new remedy, advising them to make use of it within the six-month time-limit set by the Compensation Act (see paragraph 20 below).
11. By a letter of 21 June 2010 Mr Nagovitsyn informed the Court in response that he had brought proceedings under the Compensation Act and obtained a judgment in his favour. On 21 June 2010 the Kirov Regional Court granted the applicant's claim in part. It found that the Russian authorities had violated his right by delaying the enforcement of the judgment of 31 May 2007 and awarded him RUB 40,000 in compensation. The court took account of the amount of outstanding arrears due (RUB 3,900), the applicant's claims (RUB 140,000), the ambiguity of the domestic case-law concerning the index for adjustment of court awards, considerations of reasonableness and equity and judgments of the European Court of Human Rights in similar cases.
12. On 28 June 2010 the applicant appealed to the Supreme Court against that decision, considering, inter alia, that the compensation award was insufficient and that the regional court had failed explicitly to acknowledge a violation of Article 6 § 1 of the Convention and of Article 1 of Protocol No. 1.
13. By letter of 22 June 2010, Mr Nalgiyev indicated that he would lodge a claim with the domestic court under the Compensation Act and keep the Court informed of any new fact.
14. Notwithstanding these developments, the applicants explicitly maintained their applications before the Court. They challenged the capacity of the new remedy to provide adequate redress. The new domestic remedy at best allows, in their view, some inadequate compensation for delays but does not ensure the State's ultimate compliance with the judgment. Mr Nagovitsin argued, in addition, that the compensation award made on 21 June 2010 by the domestic court was substantially lower than the amounts awarded by the Court in similar circumstances. More generally, he submitted that the consideration of his case by the Court would remedy the uncertainty of the indexation requirements stemming from the ambiguous domestic case-law in this area.
15. On 30 April 2010 Russian Parliament adopted a Federal Law, no. 68-ФЗ, “On Compensation for Violation of the Right to a Trial within a Reasonable Time or the Right to Enforcement of a Judgment within a Reasonable Time” (“the Compensation Act”). On the same date the Parliament adopted a Federal Law, no. 69-ФЗ, introducing a number of corresponding changes to the relevant federal laws. Both laws entered into force on 4 May 2010.
16. The Compensation Act entitles a party concerned (“an applicant”) to bring an action for compensation of the violation of his or her right to a trial within a reasonable time or of the right to enforcement within a reasonable time of a judgment establishing a debt to be recovered from the State budgets (Section 1, § 1). Such compensation can only be awarded if the alleged violation took place independently of the applicant's own actions except those taken in the circumstances of force majeure. A breach of the statutory time-limits for examination of the case does not amount per se to a violation of the right to a trial within a reasonable time or right to enforcement of a judgment within a reasonable time (Section 1, § 2). A compensation award is not dependent on the competent authorities' fault (Section 1, § 3).
17. The compensation is awarded in monetary form (Section 2, § 1). The amount of the compensation should be determined by courts according to the applicant'
18. Section 3 sets out the rules of jurisdiction and procedure. It states in particular that a claim for compensation on account of lengthy enforcement of a judgment may be lodged prior to the end of the procedure for enforcement of a judgment but not earlier than six months after the expiry of the statutory time-limit for enforcement and not later than six months after the termination of the procedure for enforcement.
19. A court decision granting compensation is subject to immediate enforcement (Section 4, § 4). It may be appealed against in accordance with the procedural legislation in force (Section 4, § 5). The costs of payment of compensation awards are included in the federal budget, in the budgets of federal entities and in local budgets (Section 5, § 3).
20. All individuals who have complained to the European Court of Human Rights that their right to a trial within a reasonable time or to enforcement of a judgment within a reasonable time has been violated may claim compensation in domestic courts under the Compensation Act within six months of its entry into force, provided the European Court has not ruled on the admissibility of the complaint (Section 6 § 2).


ITEMID: 001-85811
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: PIGGOTT v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Stanislav Pavlovschi
TEXT: The applicant, Mr David Piggott, is a British national who was born in 1950 and lives in Sussex. The applicant was unrepresented before this Court. The United Kingdom Government (“the Government”) were represented by their Agent, Mr C. Whomersley of the Foreign and Commonwealth Office.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant’s wife died on 13 July 1998, leaving two children born in 1980 and 1983. Six weeks after the death of his wife the applicant made an oral inquiry and was told he was not entitled to widows’ benefits. His second claim for widows’ benefits was made in November 2002 and was rejected on 28 November 2002 and again on 23 January 2003 on the ground that he was not entitled to widows’ benefits because he was not a woman. The applicant appealed this decision. On 21 March 2003 the applicant was informed that his appeal had been dismissed.
The applicant did not appeal as he considered or was advised that such a remedy would be bound to fail since no such social security benefits or tax allowances were payable to widowers under United Kingdom law.
The domestic law relevant to this application is set out in Willis v. the United Kingdom, no. 36042/97, §§ 14-26, ECHR 2002-IV.


ITEMID: 001-84703
LANGUAGEISOCODE: ENG
RESPONDENT: CZE
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: MANAS AND MANASOVA v. THE CZECH REPUBLIC
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Javier Borrego Borrego;Karel Jungwiert;Margarita Tsatsa-Nikolovska;Mark Villiger;Peer Lorenzen;Renate Jaeger;Volodymyr Butkevych
TEXT: The applicants, Mr Ladislav Maňas and Mrs Katarina Maňasová, are two Czech nationals who were born in 1929 and 1931 respectively, and live in Prague.
On 26 May 1997 the Prague Regional Commercial Court (krajský obchodní soud) declared Wall Street, spol. s r.o. bankrupt, appointed a trustee in bankruptcy (správce konkurzní podstaty) and invited the company’s creditors to submit and prove their claims.
On 17 June 1997 the applicants submitted their claims of CZK 200,000 (EUR 7,359).
In a letter of 3 May 1999 the trustee in bankruptcy informed the applicants that their claims had been confirmed.
In reply to the applicants’ complaint of 6 August 2004 about delays in the proceedings, the vice-president of the Prague Municipal Court (městský soud), to which the case had been transferred, admitted that the bankruptcy proceedings had been lengthy.
On 11 November 2004 the Municipal Court invited the trustee in bankruptcy to complete, clarify and prove a number of facts relating to the bankruptcy proceedings.
On 22 May 2006 the Municipal Court approved a final report on the realisation of the assets in bankruptcy. On an unspecified date in 2006 the High Court upheld the approval.
On 15 March 2007 the applicants applied for compensation pursuant to Act no. 82/1998 as amended. In a letter of 13 June 2007 the Ministry of Justice informed them that their application had been accepted, and that a finding of a violation of their right to a hearing within a reasonable time constituted in itself sufficient satisfaction for pecuniary and non-pecuniary damage they might have sustained.
On 24 July 2007 the applicants informed the Registry that they did not intend to turn to a court under section 15(2) of Act no. 82/1998 as amended.
The relevant domestic law and practice concerning remedies for the allegedly excessive length of judicial proceedings are set out in the Court’s decision in the case of Vokurka v. Czech Republic, no. 40552/02 (dec.), §§ 11-24, 16 October 2007).


ITEMID: 001-61755
LANGUAGEISOCODE: ENG
RESPONDENT: NLD
BRANCH: CHAMBER
DATE: 2004
DOCNAME: CASE OF BRAND v. THE NETHERLANDS
IMPORTANCE: 2
CONCLUSION: Violation of Art. 5-1;Non-pecuniary damage - financial award
TEXT: 9. The applicant was born in 1956 and lives in Eindhoven.
10. On 23 June 1994 the ’s-Hertogenbosch Regional Court (arrondissementsrechtbank) convicted the applicant of participation in robbery with violence resulting in grievous bodily harm and sentenced him to fifteen months’ imprisonment, with deduction of the time spent in pre-trial detention. In addition, having found that the applicant was suffering from a mental disorder and was dangerous, the Regional Court further ordered the applicant’s confinement in a custodial clinic (hereafter a “TBS order” - terbeschikkingstelling met bevel tot verpleging van overheidswege).
11. On 10 October 1994, when the applicant had served his prison sentence, the TBS order took effect. However, the applicant was not transferred to a custodial clinic as there were no places available. He therefore remained in pre-placement detention in the ’sHertogenbosch ordinary remand centre.
12. In order to expedite his admission to a custodial clinic, the applicant instituted summary civil proceedings (kort geding) against the Netherlands State. He withdrew these summary proceedings after his transfer to a custodial clinic in Nijmegen on 28 December 1995.
13. On 8 February 1996 the applicant took civil proceedings against the Netherlands State before the Hague Regional Court, claiming compensation in tort (onrechtmatige daad) in an amount of 29,200 Netherlands guilders (NLG), i.e. NLG 50 for each day during the first ten months of his pre-placement detention after 10 October 1994 pending transfer to a custodial clinic and NLG 100 for each subsequent day until 28 December 1995.
14. In its judgment of 24 July 1996 the Regional Court held that a delay of six months was acceptable for a transfer to a custodial clinic and that the Netherlands State had only acted unlawfully in so far as this delay had exceeded six months. It awarded the applicant compensation in the amount of NLG 50 for each day spent in pre-placement detention between 6 and 10 months after 10 October 1994 and NLG 100 for each subsequent day until 28 December 1995, i.e. a total amount of NLG 20,100. It rejected the applicant’s claim for the remainder.
15. The Netherlands State filed an appeal with the Hague Court of Appeal (Gerechtshof). The applicant filed a cross-appeal (incidenteel beroep) in which he reduced his claim for damages to NLG 24,900 in that he no longer sought compensation for the first three months of his pre-placement detention, i.e. the period between 10 October 1994 and 28 December 1995.
16. In its judgment of 20 March 1997 the Court of Appeal rejected the principal appeal filed by the Netherlands State. It did, however, quash the judgment of 24 July 1996 on the basis of the cross-appeal filed by the applicant in so far as the applicant’s claims in excess of NLG 20,100 had been dismissed in this judgment. It ordered the Netherlands State to pay a further amount of NLG 4,800 to the applicant. The Netherlands State filed an appeal in cassation with the Supreme Court (Hoge Raad).
17. On 5 June 1998 the Supreme Court quashed the judgment of 20 March 1997 and referred the case back to the Amsterdam Court of Appeal. It held, inter alia:
“3.3 Article 9 § 1 (b) of the [1951] Prisons Act (Beginselenwet Gevangeniswezen) reads:
‘Remand centres are intended: (b) for the accommodation of all others lawfully deprived of their liberty by a judicial decision, court order or public authority, in so far as there is no other suitable place for their accommodation or for as long as admission to another suitable place is not possible.’
The point of departure for the examination ... must therefore be that the [applicant’s] continued stay in the remand centre ‘for as long as admission to another suitable place is not possible’ is in principle lawful as being based on the law. Moreover, the parties and the Court of Appeal have taken this approach.
However, where it can no longer reasonably be held that the failure to admit a person to a custodial clinic is justified by the circumstances, the continuation of detention in the remand centre must be regarded as unlawful (Supreme Court, 28 June 1963, Nederlandse Jurisprudentie 1963, 480). Also, the parties and the Court of Appeal have taken this as their point of departure. Part 1 [of the cassation complaint] thus lacks a factual basis.
3.4.1 The Court of Appeal, faced with the question from what moment the situation referred to in the last paragraph of 3.3 arises, has held that ‘apart from exceptional circumstances, the stay of a [person awaiting admission to a custodial clinic] should not exceed three months’ and, further, that, in the absence of exceptional circumstances, the [applicant’s] stay in the ’s-Hertogenbosch remand centre was unlawful after a period of three months had elapsed. Parts 2-9 [of the cassation complaint] are directed against these findings and the reasons given by the Court of Appeal.
3.4.2 In the examination of these parts, it must be stated in the first place that the impugned findings of the Court of Appeal concern a situation prior to the entry into force of Article 12 of the Act on confinement to a custodial clinic of persons subject to a TBS order (Beginselenwet verpleging ter beschikking gestelden). ... this provision entered into force on 11 July 1997. The Supreme Court’s considerations hereafter will thus address the legal situation until 11 July 1997.
3.4.3 In 1963 the Minister of Justice gave an undertaking to the Upper House of Parliament that the admission to a custodial clinic of persons in respect of whom a TBS order had been given and in respect of whom a custodial clinic had been selected would be carried out within eight weeks after the TBS order had taken effect. ...
In a letter to the Lower House of Parliament of 3 June 1986, the State Secretary of Justice ... stated that she was unable to maintain this undertaking, given the growth in waiting lists.
Article 12 of the Act on confinement to a custodial clinic of persons subject to a TBS order reads:
‘1. The admission [to a custodial clinic] of a person in respect of whom a TBS order has been issued takes place within a period of six months after the date on which the TBS order has become effective.
2. When Our Minister, taking account of the requirements mentioned in Article 11 § 2 [of this Act], considers that admission is not possible within the period set out in the first paragraph, he may extend this period by three months each time.
3. A decision to extend within the meaning of the second paragraph shall be equated to a refusal to decide within the period mentioned in the first paragraph.’
In the Explanatory Memorandum to this Article it is stated, inter alia:
‘... in the proposed first paragraph of Article 12 a time-limit of six months is set out within which the admission must in general be carried out. This time-limit has been chosen on the basis of the fact that, in addition to the previously accepted guideline for a maximum duration for a TBS admission of twelve weeks, the time needed for the selection examination, the consultation with the envisaged institution of admission and the decision-making at the Ministry must also be taken into consideration.
In 1986 my predecessor abandoned the above-mentioned time-limit of twelve weeks since, as a result of the lack of capacity of the custodial clinics including the [forensic psychiatric observation] Dr F.S. Meijers Institute, this time-limit could no longer be observed.
It cannot be expected for a foreseeable time that all persons in respect of whom a TBS order has been issued can be admitted to the custodial clinic selected for them within the stated time-limit. The proposed second paragraph of Article 12 therefore opens the possibility of an extension of the six-month period by three months each time.’
3.4.4 The following must be derived from the statements of the Minister and the State Secretary of Justice. After 1963 the Government apparently assumed that the undertaking made in 1963 concerned the time needed for selection and admission of persons awaiting admission to a custodial clinic and that this period would not exceed a maximum of twelve weeks. The State Secretary ‘abandoned’ this undertaking in 1986 on grounds of ‘the lack of capacity of the custodial clinics, including the Dr F.S. Meijers Institute’. It follows from this that, where the above-mentioned lack of capacity is not taken into consideration, the point of departure is that the procedure of selection and admission of persons subject to a TBS order does not, in principle, need to take more than three months. The consequences of this lack of capacity and other circumstances that might influence the delay in admission will be addressed in considerations nos. 3.4.5 – 3.4.10.
In the light of the presupposed standard in 3.3 it cannot be said, however, that the mere exceeding of the three-month time-limit in itself renders a lawful detention in a remand centre unlawful under Article 9 § 1 (b) of the [1951] Prisons Act. This situation only arises where it can no longer reasonably be held that the failure to admit a person to a custodial clinic remains to be justified by the circumstances. Only then can it be said that, although there is a legal basis for the continued detention in a remand centre of a person subject to a TBS order, the further duration of that detention is contrary to what is fitting conduct in society according to unwritten (customary) law (in strijd is met hetgeen volgens ongeschreven recht in het maatschappelijk verkeer betaamt).
3.4.5 For cases like the present one, this unwritten law is as follows.
It must be stated first that the TBS order in cases like the present one starts to run from the date of early release and that the Minister of Justice, pursuant to Article 4 of the TBS Execution Rules (Reglement tenuitvoerlegging TBS) (as in force until 2 October 1997), had to decide ‘as soon as possible on the admission to a custodial clinic intended to execute the confinement order’. This did not, however, mean that the Minister of Justice was obliged to ensure that the required capacity for persons subject to a TBS order was available at any given point in time. A certain friction between available and required capacity is indeed acceptable from the point of view of efficient expenditure of financial resources. It has already become clear in 3.4.3 that the Minister of Justice, when he allowed a delay of twelve weeks in 1963, took into account beforehand the fact that this delay would not be sufficient in all cases.
It further needs to be noted that Article 12 of the Act on confinement to a custodial clinic of persons subject to a TBS order entered into force on 11 July 1997. In this provision, identical wording to which was already included in the Bill submitted on 12 October 1993, the point of departure is an admission delay, continuously subject to extension, of six months. The views of the Government and Parliament during the history of the adoption of the aforementioned Act are relevant to the examination of the question as to the period of delay in a remand centre awaiting admission to a custodial clinic intended for the person concerned which can be considered, in general, justified by the circumstances and thus acceptable in society.
Noting the above, and with due regard for the considerations set out in 3.4.4, the Supreme Court is of the opinion that, after the end of the prison sentence, the preplacement detention in a remand centre for a period of six months of a person subject to a TBS order awaiting admission to a custodial clinic intended for him cannot be regarded as unlawful. A period longer than six months would be unlawful, unless there were special circumstances, as referred to in 3.4.7 below.
3.4.6
3.4.7 In part 6 [of the grounds of appeal in cassation] the complaint is made that the Court of Appeal has not accepted that it is incompatible with the standard given in the Supreme Court’s judgment of 28 June 1963 (NJ 1963, 480) that a distinction be made between general circumstances, which could be relevant for a waiting period for admission to a custodial clinic of three months, and special circumstances which could be relevant for the period after three months. ...
The complaint fails. Only on grounds of special circumstances to be submitted by the State and in the event of a proven dispute relating to the person concerned and/or the State – such as, for instance, incidental and serious friction between available and required capacity for persons subject to a TBS order – can the exceeding of the maximum duration of an admission delay be justified.
3.4.8
3.4.9
3.4.10 Since the State has not adduced any of the special circumstances referred to in 3.4.7, it follows from the foregoing that the detention of [the applicant] in the ’s-Hertogenbosch remand centre must be considered unlawful from the moment when a period of six months had passed following the beginning of his stay there awaiting admission [to a custodial clinic].
3.4.11
3.4.12 The complaint set out in part 10 [of the grounds of appeal in cassation] about the reasons [given by the Court of Appeal for rejecting the State’s argument in relation to the determination by the Regional Court of the amount of compensation of respectively NLG 50 and NLG 100 per day] is well–founded. The State has disputed ... on grounds that cannot immediately be refuted that the end date of the TBS would change when the starting date had been postponed. By ignoring this, the Court of Appeal has not given sufficient reasons for its impugned finding.
3.4.13 Part 10 further contains a complaint that the Court of Appeal has used an incorrect standard in the determination of compensation by assuming that the stay of [the applicant] in the remand centre can at best be compared to the case of a suspect who has spent more time in pre-trial detention than was justified. This complaint is also well–founded. The unlawfulness of detention in a remand centre after six months does not arise from the continued deprivation of liberty but from the failure to start treatment in a timely manner in a custodial clinic intended for this purpose. The comparison used by the Court of Appeal does not fit the nature of this form of unlawfulness and the non-pecuniary damage resulting therefrom
18. On 10 January 1999 the TBS order against the applicant expired. The public prosecutor had not sought a prolongation of the order.
19. In a judgment of 25 February 1999 the Amsterdam Court of Appeal quashed the judgment of the Hague Regional Court of 24 July 1996 in so far as it had awarded compensation to the applicant in an amount of NLG 20,100. It awarded the applicant compensation in an amount of NLG 11,250, rejected the rest of his claim and upheld the remainder of the judgment of 24 July 1996.
20. The Amsterdam Court of Appeal found it established that the delay in the admission of the applicant to a custodial clinic constituted an unlawful act in so far as this delay had exceeded a period of six months. It held that the applicant had been unable to demonstrate that there were special circumstances in his case for holding that a delay of more than three months constituted of itself an unlawful act. It agreed with both parties to the proceedings that it could not be determined what had been, in concrete terms, the effect of the applicant’s lengthy stay in the remand centre on his treatment. Relying on a report of 5 December 1996 by the National Ombudsman, the Court of Appeal further held that no general conclusive findings could be made on that issue. It did not find it established that, in the applicant’s case, the delay in admission had had a major and serious impact on treatment possibilities.
21’s feelings of uncertainty and frustration. Having found it established that the applicant’s feelings of unrest had become more intense with the passage of time pending admission to a custodial clinic, it further held that he had sustained increasing non-pecuniary damage with the passage of time. As to this aspect, it considered that a three-monthly increase of the basic amount by NLG 250 per month on each occasion was, in the present case, in accordance with the requirements of equitable compensation. It consequently fixed the total amount of compensation at NLG 11,250.
22. It rejected the applicant’s argument that the compensation should be calculated on a daily basis. The Court of Appeal agreed with the State that the use of a daily compensation amount in cases like the present one, where the unlawfulness did not arise from the deprivation of liberty as such, suggested a degree of precision for which there was no basis in reality.
23. The relevant provisions of the Netherlands Criminal Code (Wetboek van Strafrecht), as in force at the relevant time, read as follows:
“Article 13
1. A person sentenced to imprisonment who, on grounds of the inadequate development or pathological disturbance of his mental faculties, is eligible for this, may be placed in a judicial institution (justitiële inrichting) for the treatment (verpleging) of persons subject to a TBS order; in that case Articles 37c, 37d and 37e shall apply by analogy. ...
Article 37
1. The judge may order that a person who, owing to the inadequate development or pathological disturbance of his mental faculties, cannot be held responsible for an offence, shall be committed to a psychiatric hospital (plaatsing in een psychiatrisch ziekenhuis) for a period of one year, but only if he represents a danger to himself, to others, or to the general safety of persons or property. ...
Article 37a
1. The judge may impose a TBS order (terbeschikkingstelling) on a suspect whose mental faculties were inadequately developed or pathologically disturbed at the time of the commission of the offence if:
1o the offence he has committed is one which, according to its statutory definition, renders offenders liable to a term of imprisonment of four years or more or if the offence is defined in Articles 132, 285 § 1, 318, 326a or 395 of the Criminal Code, Article 175 § 2 of the 1994 Road Traffic Act (Wegenverkeerswet), Article 11 § 2 of the Opium Act (Opiumwet), or Article 432, under 3o, of the Criminal Code, and
2o the said measure is necessary in the interests of the safety of others or the general safety of persons or property.
2. In applying paragraph 1, the judge may refrain from imposing a penalty, even if he finds that the suspect may be held criminally responsible for the offence.
3. In making an order referred to in paragraph 1, the judge shall take account of the statements contained in the reports made concerning the suspect’s personality, and shall take account of the seriousness of the offence committed and the number of previous convictions for indictable offences.
4. Paragraph 1 of this Article and Article 37 § 1 may be applied in conjunction with regard to the same offence.
Article 37b
1. The judge may order that a person who is subject to a TBS order shall be confined to a custodial clinic (verpleging van overheidswege) if this is necessary in the interests of the safety of others or the general safety of persons or property. ...
Article 37c
1. Treatment shall be provided in custodial clinics for persons subject to TBS orders in accordance with rules to be laid down by Order in Council (algemene maatregel van bestuur).
2. The Minister of Justice shall ensure that persons subject to TBS orders who are confined to a custodial clinic receive the necessary treatment. In respect of specific patients, the Minister may issue special instructions to the head of the custodial clinic in the interests of the safety of others or the general safety of persons or property.
3. The rules to be laid down pursuant to paragraph 1 shall make provision for persons subject to TBS orders to appeal against decisions which restrict their freedom of movement or correspondence or their right to receive visitors.
Article 37d
1. Persons subject to TBS orders may be confined to the following institutions, on condition that the institutions have been designated for this purpose by the Minister of Justice:
a. private institutions managed by legal persons established in the Netherlands;
b. State institutions.
2. Treatment shall preferably take place in a private institution. ...
Article 37e
The costs of the confinement of persons subject to TBS orders shall be borne by the State in so far as no other provision is made for them by or pursuant to any Act of Parliament. Rules shall be laid down by Order in Council concerning payment for confinement elsewhere than in State institutions.”
24. A TBS order with confinement to a custodial clinic is not intended to have a punitive effect, but to protect society from any risk posed by the person concerned. In practice, it is imposed in cases concerning murder, manslaughter, rape and other serious violent crimes or sexual offences. TBS orders are initially imposed for a period of two years and may be prolonged by a judge for further periods of one or two years where the safety of others or the general safety of persons or property so require (Article 38d of the Criminal Code). The total duration of a TBS order may not exceed four years, unless it has been imposed on the ground of an offence directed against, or constituting a danger to, the physical integrity of one or more persons. In the latter case, there is in principle no restriction on the number of extensions that can be granted by a judge (Article 38e of the Criminal Code).
25. The provisions relating to the proceedings on the extension of a TBS order are set out in Articles 509o – 509x of the Code of Criminal Procedure (Wetboek van Strafvordering). Article 509o § 1 provides that the public prosecutor’s office (openbaar ministerie) may submit a request (vordering) for the prolongation of a TBS order no sooner than two months and no later than one month before the date on which the order is due to expire. The request must be accompanied by a recent and reasoned recommendation prepared by the custodial clinic where the person concerned is receiving treatment (Article 509o § 2 CCP). The court competent to decide on such a request is the Regional Court that tried the person concerned at first instance for the crime that gave rise to the TBS order (Article 509p).
26. According to the TBS Execution Rules (Reglement tenuitvoerlegging terbeschikkingstelling; “RTTBS”) as in force at the relevant time, the prosecution department must inform the Minister of Justice as soon as possible of any judicial decision imposing a TBS order with confinement to a custodial clinic (Article 3 RTTBS). Under Article 4 RTTBS, the Minister must decide as soon as possible in which specific custodial clinic the person concerned is to be placed, taking into account the available information on the psychological examination and observation of the person concerned, advice on mental treatment, the case file on the criminal proceedings, the available possibilities for treatment, security requirements and the personal wishes of the person concerned.
27. The custodial clinics, of which there were seven at the relevant time, are top-security institutions as the persons placed there have been found to pose a great danger to society as well as to themselves. The purpose of treatment provided in these clinics is to reduce this danger and to prevent recidivism. The treatment is geared to individual disorders and personalities and is aimed at helping persons subject to a TBS order to gain insight into and control over their disorders, to make them aware of their responsibilities and to adjust their behaviour accordingly so that they no longer pose a threat to society.
28. The decision on the selection of the most appropriate custodial clinic – given the differences between the various institutions as regards security levels, patient population (gender, psychiatric diagnosis of the patients and their ability to function in a group setting etc.), methods of treatment and average stay of patients – is in most cases preceded by a seven-week period of psychiatric observation in the Dr F.S. Meijers Institute, a forensic psychiatric observation institution specialised in this field.
29. The legal basis for pre-placement detention is provided for in Article 9 of the 1951 Prisons Act (Beginselenwet gevangeniswezen). This provision, as in force at the relevant time, reads:
“Remand centres are intended:
a. for the accommodation of those who must undergo punishment by imprisonment or military detention;
b. for the accommodation of all others lawfully deprived of their liberty by a judicial decision, court order or public authority, in so far as there is no other place suitable for their accommodation or for as long as their admission to another suitable place is not possible.”
30. In a judgment given on 28 June 1963 the Supreme Court held that Article 9 § 1 (b) of the 1951 Prisons Act also covered situations in which persons subject to a TBS order entailing confinement to a custodial clinic were detained in a remand centre pending a decision as to the specific custodial clinic in which they were to be placed, and that such a detention in a remand centre was in principle lawful as being based on the law. It did, however, add that it did not follow from this interpretation that such – in principle – lawful detention would remain lawful where it could no longer reasonably be held that the failure to admit the person to a custodial clinic remained justified by the circumstances (Nederlandse Jurisprudentie (Netherlands Law Reports) 1963, 480).
31. In the National Ombudsman’s report no. 96/575 of 5 December 1996, it was stated that, in principle, taking into account the seven-week observation period and a margin of some weeks for the administrative processing of the selection application and the admission procedure, a delay of three months between the date on which a sentenced person became eligible for early release and the date of admission to a custodial clinic was acceptable. Acknowledging that incidental friction between the available and necessary capacity of custodial clinics could not be wholly excluded, the National Ombudsman further held that an additional delay of no longer than three months at the very most might still be acceptable. However, given the responsibility of the Minister of Justice for adequate capacity planning, the Ombudsman did emphasise that reliance on force majeure would only be acceptable if the Minister could demonstrate unforeseen circumstances that indeed rendered a longer period of pre-placement detention unavoidable.
32. On 1 October 1997 Articles 1–11 and 13–80 of the Act on confinement to a custodial clinic of persons subject to a TBS order (Beginselenwet verpleging ter beschikking gestelden) entered into force. Article 12 of this Act had already entered into force on 11 July 1997.
33. Article 12 of this Act provides that a person subject to a TBS order must be admitted within six months to a custodial clinic after the TBS order has taken effect. This period can be extended by the Minister of Justice by further periods of three months each time if placement proves impossible.
34. In the report of 15 July 1993 of the European Committee for the Prevention of Torture and Inhuman Treatment (the “CPT”) on its visit to the Netherlands from 30 August to 8 September 1992 (CPT/Inf (93)15), it is stated:
“130. ... the delegation also met (for instance, in the De Schie Prison, the De Singel Prison and the FOBA) some male and female prisoners in respect of whom treatment measures (eg. a TBS placement) had been decided, in some cases a long time before, but who had not yet been transferred because of a lack of places.
The CPT would like to receive the Dutch authorities’ comments on this subject.”
35. In their response to the CPT report (CPT/Inf (93)20), the Netherlands Government stated:
“The increase in the number of persons under a TBS order has placed the existing capacity under severe strain, causing a rise in the number of prisoners awaiting transfer to a TBS clinic. The Netherlands Government shares the CPT’s view that such prisoners should be placed in an appropriate hospital facility within a reasonable length of time. The situation has changed, however, since the delegation’s visit. A programme has been set up to increase the capacity through building projects and the creation of more places in existing establishments, and outpatient departments for part-time treatment have been added to some TBS clinics, widening the prospect for earlier probationary leave. These measures will reduce waiting times considerably.”
36. In the CPT report of 29 September 1998 on its second visit to the Netherlands from 17 to 27 November 1997 (CPT/Inf (98)15), it is stated:
“111. Since the beginning of the 1990s, the Dutch authorities have been confronted by a significant increase in TBS orders, a problem which has been exacerbated by the prolonged stays – for more than six years – of some 160 persons within the TBS system. As a result, the number of persons waiting in prisons for admission to TBS establishments rose from 26 in 1991 to over 200 at the time of the CPT’s second periodic visit. In response to this situation, the Dutch authorities have decided to increase the number of TBS places, in order to reach a capacity of 1,000 in 1999. However, the CPT notes that, in a letter sent to the Lower House of Parliament on 2 April 1998, ... the Minister of Justice indicated that the shortage of TBS places in 2002 is estimated at 340.
Concern has been expressed in the Netherlands about the position of inmates waiting in prison for admission to a TBS institution. During this waiting period, currently averaging 9 months, the persons concerned do not receive the treatment they require, a situation which, it has been pointed out, is likely to provoke feelings of anxiety, self doubt and anger in the persons concerned. Further, as they are considered dangerous, those inmates run a serious risk of being placed in restrictive regimes in the prison establishments where they are temporarily being held.”
37. In their response to the CPT report (CPT/Inf (99)5), the Netherlands Government informed the CPT of the measures taken by the Dutch authorities in order to overcome the difficulties flowing from the large number of prisoners awaiting admission to a custodial clinic and of the steps taken to ensure that such prisoners received at least minimally adequate treatment whilst awaiting admission. According to the Netherlands Government, efforts were being made to improve/accelerate the outflow of TBS patients to mainstream psychiatric facilities and the new statutory provision for the conditional lifting of TBS orders was expected both to increase the outflow of TBS patients as well as to reduce the number of patients entering custodial clinics.
38. The Government further informed the CPT that lengthy waiting lists for places in custodial clinics would continue to exist pending a resolution of the capacity problem, but that experiments had started in a few places providing special psychiatric treatment for inmates awaiting admission to a custodial clinic in ordinary prisons. In these experiments, therapists attached to forensic outpatient departments offered a form of preparatory therapy designed to alleviate anxiety about the eventual TBS treatment and to reduce the growing hostility felt by these people towards the justice system. According to the Government, the initial results of these experiments were encouraging in that the persons involved – therapists, prison staff and inmates – had all responded positively and there was a growing demand among prisoners awaiting admission to a TBS institution for this kind of support (pp. 40-41).
VIOLATED_ARTICLES: 5
VIOLATED_PARAGRAPHS: 5-1


ITEMID: 001-95112
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF OKHRIMENKO v. UKRAINE
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;No violations of Art. 3 (substantive aspect);Violation of Art. 3 (substantive aspect);No violation of Art. 34;Non-pecuniary damage - award
JUDGES: Karel Jungwiert;Mark Villiger;Mykhaylo Buromenskiy;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva
TEXT: 5. The applicant was born in 1968 and is currently detained in Kharkiv pre-trial detention centre No. 27 (Слідчий ізолятор № 27 м. Харкова – “the SIZO”), Ukraine.
6. On 14 March 2007 the applicant was arrested on suspicion of theft and inflicting grievous bodily harm causing the death of Mrs S.
7. On 16 March 2007 the Zmiyivskyy District Court authorised the applicant's pre-trial detention. The court indicated that the applicant was suspected of committing a serious crime, had been previously convicted on many occasions, had had negative character assessments, drank excessively and did not work. Therefore, the court was of the opinion that the applicant might abscond, commit other crimes or hinder the investigation. The applicant did not appeal against this decision.
8. On 10 May 2007, on completion of the preliminary investigation, the applicant's criminal case was sent to the court.
9. On 25 June 2007 the Zmiyivskyy District Court rejected the applicant's request for release. The parties did not submit a copy of this decision.
10. On 28 March 2007 (in some submissions the applicant refers to 23 March 2007) the applicant was placed in the SIZO. The applicant stated that he had requested his release as he was suffering from cancer.
11. Immediately on his arrival, the applicant complained about his health problems but was examined and diagnosed only a month later.
12. In April 2007 the applicant was diagnosed with liver cirrhosis and advanced cancer of the left kidney with metastasis in the lungs. The applicant received symptomatic treatment including the use of narcotic analgesics but, according to him, the quantity of analgesics was not sufficient given the advanced stage of his cancer.
13. On 26 July 2007 the Zmiyivskyy District Court ordered a medical examination of the applicant in order to establish the severity of his condition. The applicant was not provided with any medical treatment.
14. From 9 to 17 August 2007 the medical examination of the applicant took place, confirming the previous diagnosis.
15. The applicant's representative in the criminal proceedings, allegedly Mr Kh., lodged numerous requests with the court for the applicant to be released in view of his serious state of health, but to no avail. No copies of these requests or the court's refusals were submitted by the applicant.
16. On several occasions – at least four times – the applicant was escorted to court hearings which took place about 50 kilometres away from the SIZO. The applicant stated that the conditions in which he was transported, given his serious state of health, had caused him extensive suffering. In particular, he had to wait in a room measuring one square metre for the arrival of the prison van. The trip lasted approximately two hours and the applicant was not fed or provided with any medical assistance. The applicant stated that any movement had been painful for him and that being transported to the courthouse had caused him severe distress; on the last two occasions his health had seriously deteriorated as a result.
17. From 15 to 28 March 2007 the applicant stayed in Zmiyivska Central Hospital, where he received treatment for an injury to the left hand, lymphangitis (an inflammation of the lymphatic channels) of his left arm and pneumonia.
18. On 28 March 2007 the applicant was placed in the SIZO.
19. On arrival at the SIZO the applicant complained about headaches and pain in the right part of his chest. On the next day he was diagnosed with pneumonia and placed in the hospital wing of the SIZO. However, on 2 April 2007 he was transferred to Kharkiv City Clinic (Міська клінічна лікарня № 1 м. Харкова) where he stayed until 20 April 2007. During his stay in the clinic, the applicant was diagnosed with cancer.
20. On 6 and 12 April 2007 the applicant was examined in Kharkiv Oncology Hospital (Харківський обласний клінічний онкологічний диспансер) and diagnosed with cancer of the left kidney. On his discharge from the hospital he was prescribed symptomatic treatment.
21. On 20 April 2007 the applicant was returned to the SIZO. He was diagnosed with advanced cancer with metastasis, chronic hepatitis and vasculitis (a heterogeneous group of disorders that are characterised by inflammatory destruction of blood vessels) and placed in the hospital wing, where he stayed until 18 May 2007.
22. Since April 2007 the SIZO authorities have several times requested the Ministry of Internal Affairs and the Zmiyivskyy District Court to accelerate the proceedings in the applicant's case or to order the applicant's release but, apparently, to no avail. No copies of such requests or decisions taken in respect of them have been provided to this Court.
23. The applicant also stayed in the hospital wing of the SIZO from 6 to 20 June, 13 to 20 July and 31 July to 11 December 2007.
24. Between June and August 2007 the applicant frequently complained of pains in the left side of his body. He was prescribed some painkillers, antibiotics and vitamins.
25. On 4 July 2007 the applicant lodged a written request to participate in a court hearing scheduled for 5 October 2007.
26. On 26 July 2007 the Zmiyivskyy District Court, which was considering the applicant's criminal case, ordered the medical examination of the applicant.
27. From 2 August to 11 September 2007 the applicant constantly had a high body temperature (38-39o). His medical file contains a reference to a telephone conversation of 8 August 2007 during which the head doctor of Kharkiv Oncology Hospital refused to admit the applicant since “according to the medical findings of 12 April 2007, the applicant could not undergo surgery”. The applicant's condition was described as of “medium severity” (“середньої тяжкості”).
28. Between September and October 2007 the applicant's condition remained serious; however, he had no fever and his body temperature was normal.
29. On 5 and 12 October 2007 the applicant participated in court hearings.
30. On 5 October 2007 the applicant was examined by a doctor from Zmiyivska Central Hospital. The applicant requested a prescription for morphine injections.
31. On 24 October 2007 the Kharkiv City health department was requested to assist the SIZO in providing pain relief since the SIZO was not entitled to buy narcotic analgesics.
32. On 25 October 2007 the applicant underwent an examination in Kharkiv Oncology Hospital.
33. Since 1 November 2007 the applicant has been receiving morphine injections.
34. On 5 November 2007 the applicant participated in a court hearing. A doctor was called into the hearing but the applicant refused to be examined. The doctor concluded that, judging from the applicant's appearance, he could participate in a court hearing, but recommended further diagnostic tests in a specialised hospital. By a separate ruling the court decided to make enquiries with the SIZO about the applicant's state of health since “he could not participate in a court hearing after the morphine injections and refused to participate without having them”.
35. On 8 November 2007 the applicant was examined by a doctor from Kharkiv City Hospital, who recommended the use of morphine twice a day.
36. On 12 November 2007 the applicant refused blood and urine tests and requested an increase in his morphine injections.
37. On an unspecified date in November 2007 the applicant requested his transfer to a civil hospital, a course of chemotherapy and an increase in his morphine injections. He was refused on the ground that “the oncologist had not prescribed such treatment”. The applicant, however, refused further diagnosis.
38. On 21 November 2007 the applicant participated in a court hearing and was assisted by a medical professional.
39. On 23 November 2007 the applicant again refused to submit to a blood test.
40. On 30 November 2007 the applicant was examined in Kharkiv Oncology Hospital. A biopsy was prescribed, as well as analgesics. According to the Government, the applicant refused to undergo a biopsy.
41. On 5 December 2007 the Governor of the SIZO hospital wing informed the court that, given the applicant's diagnosis, his state of health was serious; he could, however, participate in the court hearings.
42. On 6 December 2007 the applicant participated in a court hearing.
43. On 11 December 2007, following the applicant's request for Rule 39 of the Rules of Court to be applied, the President of the Fifth Section of this Court decided that the Government of Ukraine should ensure that the applicant was transferred to a hospital or other medical institution where he could receive the appropriate treatment.
44. On the same day the applicant was transferred to Kharkiv Oncology Hospital. On admission he was diagnosed with cancer of the kidney (hypernephroma) in the advanced stage (T3-4 N1M1).
45. By a letter of 14 December 2007 the head doctor of Kharkiv Oncology Hospital informed the Governor of the SIZO that on 11 and 13 December 2007 the applicant had refused any diagnostic tests and requested that the prosecutor and a representative of the Kharkiv Human Rights Group be present during his examination. The applicant explained his refusal to give blood tests by saying that he “wanted to live”. The hospital personnel also complained to the hospital management that the applicant had sworn at them and insisted that they leave his ward. The head doctor stated that in the absence of any diagnosis it was not appropriate for the applicant to stay in a specialised hospital. Later, allegedly following the intervention of the applicant's lawyer, the applicant agreed to further examination. The doctors decided that the applicant should undergo a biopsy and that in the event of confirmation of the diagnosis surgery should be performed. After several refusals the applicant finally agreed to a biopsy and surgery.
46. On 24 December 2007 the court proceedings in the applicant's case were stayed because of the applicant's illness.
47. According to the applicant, from 11 December 2007 until, at the earliest, 19 September 2008, he was handcuffed to his bed. By letter of 27 December 2007 the applicant's lawyer informed this Court that he had complained about this matter to the Governor of the SIZO.
48. By a letter of 8 January 2008 the Zmiyivskyy District Court rejected Mr Kristenko's request for information concerning the applications for the applicant's release and all court decisions taken in response to those applications, since Mr Kristenko had not submitted a proper power of attorney.
49. On 11 January 2008 the applicant underwent surgery. Afterwards he continued to receive morphine injections.
50. On 23 January 2008 the applicant was diagnosed with cancer of the kidney (hypernephroma), stage T3N0M0 2/2 clinical group.
51. By a letter of 23 January 2008 the deputy head doctor of Kharkiv Oncology Hospital requested the Governor of the SIZO to remove the applicant since there was no further need for him to stay in a specialised hospital and he was currently occupying a four-bed ward as he was being guarded by three SIZO officers.
52. On 1 February 2008 the authorities of the SIZO requested the Kharkiv health department and the Kharkiv regional prosecutor's office to admit the applicant to the radiotherapy department of the Oncology Hospital since the SIZO did not have the proper equipment and personnel for the applicant's further treatment.
53. From 4 to 17 February 2008 the applicant underwent radiotherapy. Subsequently he refused to continue it.
54. By letters of 19 and 27 February 2008 the deputy chief doctor of Kharkiv Oncology Hospital informed the Governor of the SIZO that the applicant had to be discharged from the hospital since he had refused to undergo radiotherapy, and the place in the hospital was expensive and was needed by other patients.
55. On 29 February 2008 the applicant was examined by a panel of doctors who concluded that his state of health was satisfactory and that he could be discharged from the hospital but placed under the supervision of an oncologist.
56. On 29 July 2008 the Zmiyivskyy District Court resumed proceedings in the applicant's case. The court considered the request by the applicant's lawyer (Mr Kh.) to release the applicant and rejected it. The court noted that the applicant was accused of committing a serious crime. The prosecutor and the victims, S. and Ya., objected to the applicant's release. In particular, S. stated that the applicant, while in detention, had written letters in which he had threatened her son and promised to pay him to change his testimonies and to incriminate another person, M. The applicant had never been employed, had no means of supporting himself and did not maintain any ties with his relatives.
57. By letter of 12 September 2008 the hospital informed the Governor of the SIZO that the applicant was suffering from cancer of the left kidney (medium stage) but did not need hospital treatment and could be held in the SIZO.
58. On 7 October 2008 the applicant was returned to the SIZO.
59. On 20 November 2008 the President of the Fifth Section reconsidered the present application and decided to lift the interim measure previously indicated on 11 December 2007 under Rule 39 of the Rules of Court.
60. The relevant extracts from the Constitution read as follows:
“Everyone has the right to respect for his or her dignity.
No one shall be subjected to torture, cruel, inhuman or degrading treatment or punishment that violates his or her dignity. ...”
“Human and citizens' rights and freedoms shall be protected by the courts.
Everyone is guaranteed the right to challenge in a court the decisions, actions or omissions of bodies exercising State power, local self-governing bodies, officials or officers.
...After exhausting all domestic legal remedies, everyone has a right of appeal for the protection of his or her rights and freedoms to the relevant international judicial institutions or to the relevant bodies of international organisations of which Ukraine is a member or participant.
Everyone has the right to protect his or her rights and freedoms from violations and illegal encroachments by any means not prohibited by law.”
“If a defendant ... is suffering from a mental or other serious long-term illness which makes further consideration of the case impossible, the court shall stay proceedings in the case until the defendant's recovery...”
61. Section 18 of the Act 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, truncheons, etc., with a view to putting an end to physical resistance, violence, outrage (безчинства) and opposition to the lawful directions of the authorities of the detention facility, when other means of achieving a legitimate objective prove ineffective.should be carried out so as to inflict as little injury as possible. Those persons against whom security measures have been used should undergo a medical examination.
VIOLATED_ARTICLES: 3
NON_VIOLATED_ARTICLES: 3
34