ITEMID: 001-88016
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: BASNET v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza
TEXT: 1. The applicant, Mrs Milan Basnet, is a Nepalese national who was born in 1960 and lives in Middlesex in the United Kingdom. She was represented before the Court by Mr S. Chhokar of Chhokar & Co. Solicitors, a lawyer practising in Southall. The United Kingdom Government (“the Government”) were represented by their Agent, Mr D. Walton of the Foreign and Commonwealth Office.
2. The facts of the case, as submitted by the parties, may be summarised as follows.
3. Either on 15 May or 15 October 2000 the applicant arrived in the United Kingdom and claimed asylum shortly thereafter.
4. On 13 December 2000, with a friend’s assistance, the applicant completed a Statement of Evidence form in which she detailed the reasons for her asylum request. She claimed that she had been ill-treated by Nepalese Government forces since her husband was a canvassing secretary and an active member of the Maoist Party of Nepal (“CPN”) since 1996. He had been arrested by the police on several occasions. In April 2000 her husband went missing and her son went missing six weeks later. Neither has been seen since, both presumably have been either arrested or abducted. Since the police were the source of the problem, she could not report these matters. She replied in the negative to a standard question as to whether there were outstanding charges against her or a member of her family.
5. On 13 June 2001 the applicant was interviewed by an immigration officer. As appears from the hand-written record of that interview, the applicant stated that she had claimed asylum on the basis of a fear of persecution by the Nepalese Government because of her husband’s activities with the CPN. She recalled his disappearance seventeen to eighteen months previously, visits and threats by the police who were looking for her husband both at her home and at her son’s school, her ill-treatment on two occasions by plain-clothed men who came to her home looking for her husband and her son’s disappearance, approximately six weeks after that of her husband.
6. By letter dated 15 June 2001 the applicant was notified that the Secretary of State had refused her asylum application under Articles 2, 3, 5 and 14 of the Convention. He considered that the harm the applicant claimed she would suffer on return to Nepal would not constitute “persecution” within the meaning of the UNHCR Handbook. He pointed out that the unidentified plain-clothed persons whom she claimed ill-treated her could not be considered “agents of persecution within the meaning of the Geneva Convention”. Her claims did not demonstrate a “sustained pattern or campaign of persecution” against her which was tolerated by the authorities or in respect of which the authorities were unable or unwilling to protect her. In particular, she could have attempted to seek redress through the proper Nepalese authorities. She had alleged a fear of return to only certain parts of Nepal and could therefore be returned to other parts of Nepal. The Secretary of State also noted significant discrepancies in her evidence relating to whether her husband had been arrested or had “disappeared” and when that had taken place, and concerning her allegations of her own ill-treatment. On the basis of all of the above, there was no “reasonable likelihood of (her) fear being realised”.
7. The Secretary of State did not consider that Articles 2 and 5 (her claim that she would be detained without trial and/or killed on return to Nepal) had extra-territorial effect. Therefore the United Kingdom was not the State responsible for those aspects of her claim. Her evidence disclosed no substantial grounds for believing that there was a real risk of ill-treatment contrary to Article 3 on her return. Her Article 14 claim did not constitute sufficient grounds for asylum. In light of all of the evidence, the Secretary of State concluded that she had not established a well-founded fear of persecution on return to Nepal.
8. On 4 July 2001 the applicant sent a letter of protest, through the Nepalese Embassy in London, to the monarch of Nepal in support of Prince Dipendra who had been accused of killing members of the royal family in June 2001. The applicant accused the monarch’s son (Prince Paras) and a military chief of being involved in these crimes.
9. The applicant then appealed to the Special Adjudicator (“SA”). While the applicant was legally represented before the SA, the only document submitted containing grounds of appeal to the SA appears to have been prepared by her. She made numerous submissions concerning the situation in Nepal and her fear of persecution. She alleged that she had been arrested and tortured in the past and that she had been detained, had escaped from prison and had left Nepal to save her life as soon as her trip to the United Kingdom had been arranged. She claimed that her friends and relatives were being arrested and tortured in Nepal because of her, that she was receiving threatening letters and that she was on the Nepalese security forces’ list of targets.
10. On 2 November 2001 the applicant sent a further letter of protest through the Nepalese Embassy to the monarch of Nepal protesting against the proposed accession of his son to the throne.
11. On 12 December 2001 the SA rejected the applicant’s appeal. He considered that, even allowing for her relative lack of sophistication, language problems and cultural differences, the number and nature of the inconsistencies between her accounts were such that her evidence was unreliable in important respects including in relation to her date of departure from Nepal and the circumstances of her husband’s and son’s disappearances. In this latter respect, he found that it was speculative as to whether they had left home voluntarily or not and he noted that the applicant had accepted that members of the CPN were in hiding. She had also accepted that the police did not threaten her thereafter. The SA did not accept her evidence that she had been assaulted by unknown persons as there were a notable number of inconsistencies about this in her previous evidence.
12. The SA noted the situation between the CPN and the Nepalese authorities but did not consider that there was any evidence that a wife, with no involvement in politics or public affairs, was likely to have her husband’s political opinions imputed to her; nor was there any evidence to suggest that a wife was likely to be targeted, detained, tortured, ill-treated or killed. In the opinion of the SA, there was no reasonable likelihood of the applicant suffering in any of these ways on return to Nepal. Even if she had a subjective fear, it was speculative and not well-founded. Accordingly, there was no reasonable risk of the United Kingdom’s Convention responsibility being engaged by her expulsion.
13. On 27 February 2002 the IAT gave the applicant leave to appeal against the SA’s decision. Her grounds of appeal contested the SA’s conclusions, and reiterated her account of her husband’s and son’s past involvement in the CPN, and of their arrest by the police and gave details of the threats and assaults by the plain-clothed persons who came to her house. The applicant accepted in paragraph two of her grounds of appeal that “it is true that I was not an active political lady but my husband was (a) very active worker of the Maoist party.” In the document the applicant further asserted that inconsistencies were to be explained by language and translation issues and stressed that spouses of activists had been arrested and tortured, giving specific examples. The applicant was not represented before the IAT. Having summarised the SA’s findings, the Tribunal stated:
“The grounds restate the applicant’s case at length. Documentary evidence is produced annexed to the grounds none of which appears to have been put in front of the [SA]. In these circumstances on balance I am satisfied that this appeal does not merit further consideration by the [IAT]. The [IAT] will require an explanation for the failure to produce the documentary evidence before the [SA]. Accordingly, leave to appeal is granted.”
14. Her letter dated 11 April 2002 addressed to the IAT indicated that she could not attend the hearing fixed for 19 April 2002 as she was ill. She asked for her case to be decided on the basis of her documents and explained that she had not been able to submit the documents to the SA as she had not yet received them at that stage from Nepal. She enclosed a medical certificate dated 8 April 2002 which indicated that she was unwell and had been started on anti-hypertension medication. She was unable to work for eight weeks and required rest.
15. On 19 April 2002 the IAT heard and rejected her application. The applicant was not present or represented at the hearing. The decision of the IAT was sent to her on 30 April 2002. The IAT held:
“Leave was given on the basis of various credibility points made in the grounds of appeal, and of further documentary evidence submitted with them. This evidence has neither been filed in triplicate for the use of the [IAT], as directed, not has any explanation been given, as also directed, for the failure to put it before the [SA]. We have not considered it.
The [applicant] and her solicitors were sent notice of hearing on 27 February: [the solicitors] withdrew by letter on 17 April, while she has given no explanation for her failure to appear before us. As required by r. 41.3 of the Procedure Rules, we have gone ahead with the hearing. While the grounds of appeal assert that the [applicant] arrived here on 15 October 2000, the statement attached to the statement of evidence form, apparently forwarded by the [applicant’s] own solicitors, not only says she did so on 15 May [2000], but gives circumstantial details of what is said to have happened then. There has been no explanation ..., either before the [SA] or us, for this serious discrepancy, and he [the SA] must be regarded as justified in the view he took of the [applicant’s] credibility.”
16. The applicant applied to the IAT for leave to appeal to the Court of Appeal and lodged detailed grounds of appeal. As to her non-attendance at the IAT hearing, she repeated that she had been ill with hypertension and had been advised by her doctor to rest. She had not been able to pay her lawyers so they had to withdraw from her case. Accordingly, she had requested the IAT to decide her case on the basis of the documents presented. It was unfair to reject her asylum claim because she had not lodged documents in triplicate: she would have done so had she been told that it was necessary. As for the inconsistencies referred to by the IAT, she referred to her lack of knowledge of the English language, her memory losses due to the traumas she had suffered and differences between the English and Nepalese calendars which made for confusing calculations. Indeed her first interpreter spoke Hindi but was not familiar with the Nepalese calendar: when the applicant indicated that she could not follow, the interpreter reassured her that it did not matter as she would have the chance to change her statement at the Home Office. Nor could she follow the Home Office interpreter, as the latter spoke Newari (another language spoken in Nepal) and not Nepali. She went on to describe again her experiences in Nepal, the current situation there and why she feared persecution. She indicated that her husband and son were being tortured in prison and that three close relatives had been recently killed by the police on the basis of involvement with the CPN.
17. On 12 May 2002 she addressed a further detailed letter of protest to the “Premier of Nepal” through the Nepalese Embassy in London.
18. On 12 July 2002 the IAT refused leave to appeal on the basis that there was no arguable point of law and that her grounds of appeal did not address the reasons for the IAT’s decision.
19. On 20 July 2002 the applicant applied to the Court of Appeal for leave to appeal against the IAT decision. She submitted further detailed grounds of appeal: she explained that she could not afford a lawyer for the IAT proceedings, that she was unwell, that she was suffering from depression and that she had language difficulties and difficulties with legal procedures. She explained that she had been unable to submit certain documentation to the SA as it was impossible to bring the documents with her when she left Nepal and she had to wait until friends could deliver them to her. She again explained why there were inconsistencies in her evidence as to her date of arrival in the United Kingdom. She pointed out that not all of the circumstances of her case had therefore been taken into account and she again described the situation in Nepal, her experiences there and her fears about being returned there. In particular, she claimed that her husband and son had been incarcerated and that she had learnt from friends that they were being “tortured very much” and that all her “fellow comrades” were being arrested, tortured and killed every day by the Nepalese government. She also explained that one of the reasons for any inconsistencies in her account was her fear of the United Kingdom authorities following her bad experiences in Nepal.
20. On 19 November 2002 a single judge of the Court of Appeal heard her application. The applicant was present with an interpreter. The judge rejected her application. The Court considered that her appeal had no prospects of success because:
“No error of law was made by the IAT. The [SA] did not believe the applicant’s claim as to her historic persecution, and was not satisfied that there was evidence that she might be at risk if she returned to Nepal. In the circumstances before it, the IAT was within the permissible limits of its practice not to look at the new material. Although, in the unusual circumstances of Ms Basnet’s allegations, the court made enquiries of her former solicitors, any unreasonable failure by them to assist her (which the court does not find demonstrated) cannot be found an error by the IAT. The explanation for not producing the new material before the [SA] is not satisfactory, particularly as some of it (e.g. some of the material about protests in the U.K.) must have been in Ms Basnet’s hands at the time of the hearing. I have also to express some scepticism as to whether someone who signs long letters in good English as “Chair, London Protest Committee” was as incapable of attending to her own defence as Ms Basnet claims to have been.
If Ms Basnet can demonstrate by the new material that her situation is markedly different from that which was before the IAT her only course is to approach the [Home Secretary]: although I must not be taken to have formed any view as to whether that course would be justified or successful.”
21. On 5 December 2002 the House of Lords confirmed that no appeal lay to it from a refusal by the Court of Appeal to grant leave to appeal.
22. By notice dated 7 December 2002 the applicant was served with removal directions, the removal being foreseen for 10 December 2002.
23. On 10 December 2002 the applicant lodged an application against the United Kingdom with this Court, submitting a document dated 12 December 2001 in Nepalese and its translation. It is said to be a letter from her lawyer in Nepal to her and the translation reads as follows:
“This office has [received] this arrest warrant against [the applicant] on the instruction of the Kathmandu District Police ... dated 16/11/01 on the charge of treason. I am unable to prepare, ... plead and [proceed with] her case because of ... harassment [by] the police, court officers and judges and fear of being arrested ... myself due to her protest letters against the present Royal family, government and army on the direction of [the CPN]. Now her son and husband are in Birgunj and Syanza jails, respectively. Now the Government has declared a state emergency against the [CPN]. All ... human Rights are being suspended and [the] press totally are being censored. It is certain that Mrs Basnet will be arrested, tortured, killed or disappeared at the airport on her arrival to this country. Her protest letters against the royal massacres and against Crown Prince ... have really increased her threat of life.”
24. The document referred to in that letter was also submitted in Nepalese together with its translation. It is described as an arrest warrant issued by the Nepalese Ministry of Home Area Police Office and dated 16 November 2001 and its translation reads as follows:
“On the instructions of the Kathmandu District Police Office Hamumandhoka, hereby this office issues an arrest warrant [in] the name of Mrs Milan Basnet - 41 of Ka. Ma. Na. Pa. Ward no. 34 [who is] 5’ 3’’ [in] height [and has] olive complexion, black hair and one broken tooth on the charge of treason. It is ordered to search and arrest and bring her to this office without letting her escape on the way until the withdrawal of this arrest warrant. If she is not arrested in seven days time except[ing] the period of your journey, be active to arrest her after delivering this arrest warrant to her home on the eight day until her arrest.”
25. The applicant also submitted to this Court a medical certificate dated 10 May 2002 which refers to her having undergone treatment for hypertension and cellulitis affecting her legs for which she had been treated in the accident and emergency service of a hospital and a letter dated 18 June 2002 from the CPN in Nepalese and its translation. It congratulated and thanked the applicant for her courage in protesting against the Nepalese Government.
26. On 14 January 2004 the applicant submitted a request to the Home Office for further consideration of her case enclosing a copy of the warrant for her arrest, a copy of the letter from her Nepalese lawyer and a copy of the letter from the CPN dated 18 June 2002.
27. On 10 May 2005 the Home Office decided not to treat her representations as a fresh application. It found, inter alia, that the arrest warrant and the lawyer’s letter had already been fully considered and dismissed by the domestic courts. Following further representations by the applicant, the Home Office conceded that the documents had not in fact been considered by the SA but maintained its refusal to consider the representations as amounting to a fresh application on 8 June 2005, explaining that as no reason had been given as to why the originals had not been submitted to them on this occasion, it was unable to examine the new evidence. It concluded that, having considered the findings of fact made by the SA and the ease with which such documents could be obtained and their timing and content, it was unable to place any reliance on them.
28. The applicant subsequently applied for permission for judicial review. On 21 February 2006, following an oral hearing, the High Court refused her application upon the assurance given by the Secretary of State that the applicant would not be removed by the Home Office if further representations were made to it within 14 days and until a decision was made on those representations.
29. On 7 March 2006 the applicant made further representations to the Home Office. Her arguments centred on the fact that the above mentioned documents (namely the copy of the warrant for her arrest in Nepal, letters from the CPN and a copy of a letter from her lawyer in Nepal) had never been considered. Her representatives asserted that she could not have produced these documents at the time of her first asylum claim as they were not then available to her. It was further contended that the applicant had become a marked person so far as the Government of Nepal was concerned due to her numerous protest letters against the Royal regime during her stay in the United Kingdom which had “doubled her risk to life as compared to her pre-arrival risk as a consequence of imputed political opinion”. It was finally maintained that the Secretary of State had failed to consider the risk the applicant would face in the light of the changed political situation in Nepal. In particular, the Nepalese King’s actions had “plunged the country into a human rights crisis and put any Maoists, even sympathisers, at a real risk of torture, disappearance or being killed.”
30. On 16 October 2006 these representations were accepted as amounting to a fresh claim by the Home Office.
31. On 8 December 2006 a decision was made to refuse to grant the applicant asylum under paragraph 336 of HC 395 (as amended) and on 11 December 2006 a decision was made to refuse her leave to remain in the United Kingdom.
32. On 7 February 2007 the AIT heard the applicant’s appeal, in the applicant’s absence on medical grounds without the latter seeking an adjournment, and the appeal was refused on 23 February 2007. The presiding Immigration Judge did not find the applicant to be credible and noted numerous inconsistencies in her account. In particular, he found that she had vacillated as to the exact date of her arrival in the United Kingdom and she had produced a letter attesting to the fact that she was the Chairperson of a Nepalese protest committee in the United Kingdom, yet, had answered that she was not the Chair but just a member when later questioned on this point. Furthermore, the fact that the applicant had not been cross-examined on the new evidence, thus depriving the Secretary of State of an opportunity to challenge her account, did little to enhance her credibility. It appeared also that the applicant had never taken part in any political activity in Nepal and that there had been no reason for the Nepalese authorities to issue an arrest warrant when she had left the country, let alone eighteen months later as the document she had proffered suggested. Ultimately, the AIT concluded that only in an exceptional case would a risk of persecution or treatment contrary to Article 3 be held to arise by virtue of being, or being perceived, as a Maoist and that the present was not such a case. Even assuming that the applicant’s account was true, country guidance reflected the fact that there was no risk to individuals on the basis of imputed political opinion by way of association with family members and internal relocation to Kathmandu, Nepal’s capital, appeared to be a viable option.
33. On 20 July 2007 the applicant’s application for reconsideration of the AIT’s decision under section 103A of the Nationality, Immigration and Asylum Act 2002 was refused by a Senior Immigration Judge sitting at the AIT on the basis that the grounds on which reconsideration was sought did not disclose any error of law.
34. Section 8 of the Asylum and Immigration Act 2003 (Treatment of Claimants, etc.) stipulates the following:
(1) In determining whether to believe a statement made by or on behalf of a person who makes an asylum claim or a human rights claim, a deciding authority shall take account, as damaging the claimant’s credibility, of any behaviour to which this section applies.
(2) This section applies to any behaviour by the claimant that the deciding authority thinks—
(a) is designed or likely to conceal information,
(b) is designed or likely to mislead, or
(c) is designed or likely to obstruct or delay the handling or resolution of the claim or the taking of a decision in relation to the claimant.
(3) Without prejudice to the generality of subsection (2) the following kinds of behaviour shall be treated as designed or likely to conceal information or to mislead—
(a) failure without reasonable explanation to produce a passport on request to an immigration officer or to the Secretary of State,
(b) the production of a document which is not a valid passport as if it were,
(c) the destruction, alteration or disposal, in each case without reasonable explanation, of a passport,
(d) the destruction, alteration or disposal, in each case without reasonable explanation, of a ticket or other document connected with travel, and
(e) failure without reasonable explanation to answer a question asked by a deciding authority.”
35. The AIT’s country guidance case entitled KG (review of current situation) Nepal CG [2006] UKAIT 00076, after examining available country information, concluded the following as to the potential risks to Maoists upon return to Nepal:
“So far as the issue of risk on return to Maoists from the current government is concerned, we consider that the latest background evidence, which includes reference to the dropping of all terrorism charges against Maoist rebels and to a clear commitment from the interim government to include Maoists both in the interim government (at some stage) and in a new regular government following elections, demonstrates that even active members of the CPN and members of the PLA would not be at risk on return to Nepal. In our view it would only be in the exceptional case that an appellant could show a continuing risk of persecution or serious harm or treatment contrary to Article 3 by virtue of being, or being perceived as, a Maoist.”
36. The United Kingdom Home Office Country of Origin Information Key Documents published on 6 May 2008 (COI Key Documents, 2008) cite at paragraph 2.06 the Foreign & Commonwealth Office’s (FCO) Country Profile on Nepal, which was last updated on 8 June 2007 and which states (at paragraph 4a) the following as regards the current political climate in Nepal:
“A peace agreement between the Government of Nepal and the Maoists was signed in Kathmandu on 21 November 2006 thereby ending 11 years of conflict in Nepal. Under the terms of the agreement the Nepali Army and Maoist cadres will be confined to barracks and cantonments. Both sides agreed a permanent ceasefire and an arms management arrangement, which will be monitored by the UN. The agreement also provides for elections to a Constituent Assembly by June 2007 and for the Maoists to become part of the political mainstream as a legitimate political party. Subsequently an arms management agreement was signed on 28 November 2006 between the Maoists and the government under the auspices of the UN.”
37. The COI key documents describe recent events and political developments in Nepal at paragraphs 2.07 and 2.08 as follows:
“The FCO Country Profile of Nepal, updated on 8 June 2007, observed that “On 15 January 2007 the House of Representatives was dissolved and the interim parliament was formed, promulgating the interim constitution. On 1 April 2007, the interim government was formed which for the first time includes Maoist ministers...”
“The BBC Timeline for Nepal, updated on 2 May 2008, noted that the Constituent Assembly elections due in April 2007 were postponed in May until November that year. In September 2007 Maoists quit the interim government in order to press demands for the monarchy to be scrapped. The Maoist withdrawal from the government forced the postponement of November’s constituent assembly elections. There was also a bomb attack in Kathmandu in September – the first since the end of the Maoist insurgency. In December 2007 Parliament approved the abolition of the monarchy as part of a peace deal with the Maoists, who agreed to re-join the government. In January 2008 the already postponed elections for the constituent assembly were set for 10 April 2008. Following the April polls, the former Maoist rebels won 220 of 601 seats in the constituent assembly, while the Nepali Congress Party and the Communist Party of Nepal won 110 and 103 seats respectively. The Maoists said they wished to include these “two other big parties” in a coalition government. (BBC News, 25 April 2008)...The Maoist leader, Prachanda, also confirmed that the first meeting of the assembly would abolish Nepal’s monarchy.”
38. On 28 May 2008 the Nepalese constituent assembly abolished the monarchy and declared the country a republic, with only four members of the 601 seat assembly opposing the change (see BBC News “Nepal votes to Abolish Monarchy”, article of 28 May 2008).


ITEMID: 001-104543
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF TOMASZ KWIATKOWSKI v. POLAND
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1+6-3
JUDGES: Lech Garlicki;Ledi Bianku;Nicolas Bratza;Päivi Hirvelä;Sverre Erik Jebens;Zdravka Kalaydjieva
TEXT: 5. The applicant was born in 1948 and lives in KonstancinJeziorna.
6. On 11 April 1997 the parliament passed the Law on disclosing work for or service in the State’s security services or collaboration with them between 1944 and 1990 by persons exercising public functions (ustawa o ujawnieniu pracy lub służby w organach bezpieczeństwa państwa lub współpracy z nimi w latach 19441990 osób pełniących funkcje publiczne; “the 1997 Lustration Act”). It entered into force on 3 August 1997. Persons falling under the provisions of the 1997 Lustration Act, i.e. candidates or holders of public office such as ministers and members of parliament, were required to declare whether or not they had worked for or collaborated with the security services during the communist regime. The provisions of the Act extended to, inter alia, judges, prosecutors and advocates.
7. On an unspecified date the applicant, who was an advocate, declared that he had not collaborated with the communistera secret services.
8. On an unspecified date in 2000 the Warsaw Court of Appeal (Sąd Apelacyjny) decided to institute lustration proceedings against the applicant following a request made by the Commissioner of the Public Interest (Rzecznik Interesu Publicznego) on the grounds that the applicant had lied in his lustration declaration by denying that he had cooperated with the secret services.
9. On 27 June 2002 the Warsaw Court of Appeal, acting as the firstinstance lustration court, found that the applicant had submitted an untrue lustration declaration. The operative part of the judgment was served on the applicant. However, the reasoning was considered “secret” and, in accordance with Article 100 § 5 of the Code of Criminal Procedure, could only be consulted in the secret registry of that court.
10. The applicant lodged an appeal in which he maintained, in particular, that his rights had been breached because he could not freely consult the reasoning of the judgment.
11. On 16 May 2003 the Warsaw Court of Appeal, acting as the secondinstance lustration court, upheld the impugned judgment.
12. The applicant lodged a cassation appeal against the judgment.
13. On 9 December 2004 the Supreme Court (Sąd Najwyższy) dismissed the applicant’s cassation appeal as being manifestly illfounded. The applicant was removed from the Bar Association with the result that he is unable to practise as an advocate for a period of ten years in application of the 1997 Lustration Act.
14. The judgment was notified to the applicant’s representative on 17 January 2005.
15. The relevant law and practice concerning lustration proceedings in Poland are set out in the Court’s judgment in the case of Matyjek v. Poland, no. 38184/03, § 2739, ECHR 2007V.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1
6-3


ITEMID: 001-108833
LANGUAGEISOCODE: ENG
RESPONDENT: IRL
BRANCH: ADMISSIBILITY
DATE: 2012
DOCNAME: BIRNEY v. IRELAND AND TROY AND BRENNAN v. IRELAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: André Potocki;Ann Power-Forde;Dean Spielmann;Elisabet Fura;Ganna Yudkivska;Karel Jungwiert;Mark Villiger
TEXT: The first, second and third applicants, Mr Stephen Birney, Mr John Troy and Mr Patrick Brennan, are Irish nationals. They were born in 1974, 1980 and 1964, respectively, and they live in Dublin. The first applicant was represented before the Court by Mr Conway O’Hara, a solicitor practising in County Wicklow. The second and third applicants were represented before the Court by Ms C. Almond, a solicitor with Garrett Sheehan and Partners, Dublin. The facts of the case, as submitted by the applicants, may be summarised as follows.
At 21.51 on 12 October 2002 the applicants were re-arrested pursuant to section 4(3) of the Criminal Law Act 1997 with a view to being taken to the Special Criminal Court (“SCC”) and charged with membership of the IRA. In the morning of 13 October 2002 they were brought before the SCC and charged: the period prior to charging was later calculated by the Supreme Court to be almost 13 ½ hours. They applied for and were refused bail and remanded in custody on a number of occasions (including on consent) until finally remanded for trial to begin on 9 December 2004. The applicants did not object to the jurisdiction of the SCC during their initial appearance or during the subsequent two-year remand period.
In the meantime (in April 2004), Mr O’Brien was arrested and brought before the SCC to be charged with membership of the IRA arising out of the same events to which the charges against the applicants related. He immediately challenged the jurisdiction of the SCC (prior to his arraignment) arguing that, since he had not been brought “forthwith” before the SCC, he had not therefore been “lawfully brought” before the SCC so that the SCC did not have jurisdiction to try him. Consequently, the present applicants also objected to the jurisdiction of the SCC to try them. Their objection was joined with that of Mr O’Brien. Following a hearing on 13 December, the SCC rejected those objections on 14 December 2004.
On the same day, the applicants’ trial began. It lasted some weeks and the applicants were convicted. On 12 May 2006 the Court of Criminal Appeal (CCA) refused leave to appeal, that court having examined and rejected the “forthwith” jurisdiction argument.
In the meantime, Mr. O’Brien had requested and obtained leave to apply for judicial review pending which his trial was adjourned. While the High Court refused leave, on 24 October 2007 the Supreme Court accepted his appeal (O’Brien v. The SCC and Another, [2007] IESC 45) finding that he had not been brought “forthwith” (approximately 16 hours) before the SCC, that he was not therefore lawfully before the SCC and that the SCC did not therefore have jurisdiction to try him.
Two weeks later the applicants took habeas corpus proceedings (Article 40(4)(2) of the Constitution) relying on the Supreme Court judgment in the O’Brien case arguing that, since the SCC had had no jurisdiction to try them, their imprisonment was unlawful. They sought release.
On 9 November 2007 the High Court rejected their application: while their cases were identical to Mr O’Brien’s and while the SCC clearly did not have jurisdiction in their cases, their right to raise that issue was spent since they had not objected to the jurisdiction of the SCC at the earliest opportunity before it (prior to arraignment) and they had not explained why.
By an ex tempore judgment of 5 December 2007 (the written judgment was delivered on 12 March 2008, Brennan and Others v. the Governor of Portlaoise Prison and Another [2008] IESC 12), the Supreme Court rejected the applicants’ appeal. Since an application had not been made under section 29 of the Courts of Justice Act 1924 (for a certificate that the case concerned a point of law of exceptional public importance requiring examination by the Supreme Court), the decision of the CCA on the jurisdiction point had become final and was res judicata. A habeas corpus action did not lie when the jurisdictional issue had already been determined to the point of statutory finality: the principle of finality would be subverted if habeas corpus could be used as a perpetual right of post-conviction appeal. The court did acknowledge that that there might be exceptional cases where a fundamental jurisdictional defect could be established in a habeas corpus action which defect, through nobody’s fault, had not been raised in the appeal processes. However, the present applicants could have raised an objection to the jurisdiction of the SCC earlier in the process, as in the O’Brien case, but they had failed to do so. On the contrary, they applied for and were refused bail and remanded in custody including on a consent order. They neither applied for judicial review nor for an adjournment of the trial pending same. Having permitted their trial to proceed, after unsuccessfully raising the jurisdictional point before the CCA, they could have, but did not, apply for a certificate under section 29 of the 1924 Act. The Supreme Court confirmed that, if Mr O’Brien had not objected to jurisdiction early and brought judicial review proceedings, his trial would have been joined with the trial of the applicants.


ITEMID: 001-61063
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2003
DOCNAME: CASE OF ALIEV v. UKRAINE
IMPORTANCE: 2
CONCLUSION: Preliminary objection rejected (non-exhaustion);Violation of Art. 3 with regard to prison conditions;No violation of Art. 3 with regard to alleged ill-treatment by prison officers;Violation of Art. 8 with regard to initial restrictions on receipt of parcels;No violation of Art. 8 with regard to later restrictions on receipt of parcels;No violation of Art. 8 with regard to denial of conjugal visits;Non-pecuniary damage - financial award
JUDGES: Nicolas Bratza
TEXT: 10. On 5 March 1996 the applicant was arrested by the Russian police and detained on remand in Krasnodar (Russia). On 7 March 1996 he was transferred to Simferopol (Ukraine) where he continued to be detained on remand.
11. On 10 February 1997 the Criminal Division of the Supreme Court of the Autonomous Republic of Crimea (судова колегія Верховного суду Автономної Республіки Крим) convicted the applicant of masterminding and carrying out organised crime and on several counts of aiding and abetting murder and attempted murder, and sentenced him to death. It also ordered the confiscation of his property.
12. On the same day the Administration of the Isolation Block of the Central Department of the Ministry of the Interior of the Autonomous Republic of Crimea (адміністрація слідчого ізолятору Головного Управління Міністерства внутрішніх справ Автономної Республіки Крим) moved the applicant to one of the cells for persons awaiting execution of the death sentence.
13. On 15 May 1997 the Criminal Division of the Supreme Court of Ukraine (судова колегія з кримінальних справ Верховного суду України) upheld the judgment given at first instance.
14. A moratorium on executions was declared by the President of Ukraine on 11 March 1997. In judgment no. 11рп/99 of 29 December 1999 the Constitutional Court held that the provisions of the Criminal Code concerning the death penalty were contrary to the Constitution of Ukraine. The death penalty was therefore abolished and replaced by life imprisonment by Act no. 1483-III of 22 February 2000.
15. On 8 June 2000 the Supreme Court of the Autonomous Republic of Crimea commuted the applicant's death sentence to life imprisonment.
16. Evidence of the applicant and four other witnesses was taken by the Court Delegates in Simferopol Prison on 4 October 1999. The Delegation was composed of Judges M. Pellonpää, J. Makarczyk and R. Maruste. The evidence taken may be summarised as follows:
17. The applicant stated that he had not been informed that under the general conditions he was entitled to a visit of one to two hours by his relatives. In general, he had been allowed to have one visit per month for 15-20 minutes or half an hour at the most. He said that until the day of the Court Delegates' visit, he had not received a document with his rights and obligations under the prison regime. He further said that he had been moved that day into a newly renovated cell where “something like” that was hanging on the wall. He stated that he had been asked by the prison administration to sign the document, but had refused and had said that he wanted first to be informed about his rights and obligations. According to him, in his previous cell there had been no document listing those rights and obligations. Whenever he had been punished, he had always asked to be shown this document. However, he had been told that it was a secret document.
18. As a punishment, he had once not been allowed to have daily walks for 10 days, he had been kept in isolation under a strict regime, and he had not been allowed to buy food in the prison shop. He had been punished for the first time when he had shared the cell with another inmate; a warder had found “something like a knife” on the other inmate, and the applicant had intervened. On the second occasion, a warder had found a soap of good quality in the cell, had asked where the applicant had found it and had later seized it. The applicant had been punished by being prevented from meeting his two children.
19. According to the applicant, health conditions in the prison were not satisfactory and he was not treated properly as far as his health was concerned. He had never been thoroughly examined, although, according to the rules, inmates had to have a complete medical check-up twice a year. The applicant had complained about food which had caused diarrhoea and stomach-aches, but had been told that such problems were not serious. He had also complained about heart-pains, headaches and toothache and especially problems with his crowns.
20. According to him, inmates were not provided with soap when taking a shower. However, they were allowed to have their own soap.
21. To the Court Delegates' question: “You are complaining about the food. I understand that you consider that the food provided here provokes diarrhoea and stomach-aches. You also complain that you are not allowed to receive parcels of food, vitamins, books and clothes. We learned that the situation had changed recently, last May. Now you can receive parcels and you can buy more goods from the prison shop. Do you confirm that?” the applicant replied: “Yes, more or less. However, what we can get is not sufficient.” In fact, the applicant confirmed that he was allowed to receive one parcel and two small packets every two months.
22. The applicant did not have any contact with other prisoners, apart from the period when he shared his cell with another inmate.
23. To the Court Delegates' question: “Did you ever have a feeling that there was any real attempt by the Government to hinder your complaint to the Strasbourg institutions?” the applicant's lawyer who is also the applicant's wife replied: “Yes, by the Supreme Court. As long I was associated with Mr Aliev, they were reluctant to help me all the time. Actually, he was arrested in Russia, in Krasnodar, but the head of the Simferopol Directorate no. IV, Mr Zverev, personally went there and brought him here without any documents. The applicant was beaten and intimidated. Afterwards, it was recorded that he had been arrested in Simferopol.”
24. The applicant was handcuffed during his wife's visits. A warden was present all the time, listening to the conversation. He could interrupt the visit. Once, the applicant was allowed to speak for only three minutes. He was not allowed to speak in the Avarian language, which is his mother tongue. The warden interrupted him when he spoke in that language. The applicant did not answer the Delegates' question whether he had complained about the interruption of the visits. On the day of the Delegates' visit, he stated that there was no longer any language ban during his visits. However, in response to the Government representative's question: “Since when? The Government has your letter in which you say that there is no problem with communicating in your native language”, the applicant stated: “Now there is no problem because we do not speak it.”
25. In response to the Government representative's questions: “Have there been any cases when the prison administration refused you permission to meet your lawyer?” the applicant stated: “Yes, that has happened. I was even told that there was some information coming from Kiev about that.” When asked: “When was the last time you met your representative?”, he replied: “Two weeks ago.” When the Government representative said: “So, two weeks ago you met your lawyer. Earlier you said that you had a meeting with your relatives in May 1999, which means you have not seen them for four months. However, your lawyer is in fact your wife”, the applicant's lawyer answered: “I am his lawyer. I am a member of the Russian Regional Bar Association. According to the international legal rules, I can represent my husband's interests abroad, and thus even in Ukraine. However, when I come to the Department for the Execution of Sentences, I always fear that my request to visit him will be refused. Today I found a letter from the Crimean Bar Association saying that, according to the Decree on Bar Associations, Aliev can only be represented by a Ukrainian citizen, so I cannot represent him any more. Owing to legal restrictions I have not, for the last three and a half years, had any intimate contact with my husband. I have two children; my five-year-old child realises that his father is in prison.”
26. To the Government representative's question: “Do you confirm that for the last four months you have not had meetings with your relatives, bearing in mind that two weeks ago you met your wife?” the applicant replied: “I did not have a date with my wife; it was a formal meeting with my lawyer. It is different.”
27. The applicant had been allowed to have outdoor walks since 24 May 1998. He said that he had been allowed to go for a walk except for the days when he had taken a shower, i.e. once every ten days. He then specified that in September 1999 the prison administration had arranged a shower every seven days, and on that day the inmates could not have a daily walk. He stated that during the walks the inmates had been handcuffed, holding their hands behind their backs. On 31 August 1999 they had been allowed to go for a walk without handcuffs. According to him, in winter they had not gone for walks.
28. Since May 1998 the applicant was allowed to write one letter per month. His mail was censored, and one letter from his wife had not been given to him, a fact that he learned during his wife's visit.
29. In his original application, the applicant alleged that he had been beaten in January 1998, that some masked men had entered his cell and that the prison governor had also been present. Before the Delegates he stated that only a certain Captain Doroshenko had not been wearing a mask. To the Court Delegates' question: “What, in your view, was the motive for this action?” the applicant replied: “In prison here everything is controlled by fear; nobody tries to educate or rehabilitate people, only to use force.” To the Court Delegates' further questions: “But why did that only happen to you? We have no other complaints. Why did they select you to enforce this 'fear policy'?” the applicant replied: “Many people complain. However, their complaints do not reach the complaints bodies. When someone is afraid, it is easier to control him.”
30. The applicant saw the governor of the prison for the first time on 20 August 1999 after having been beaten because he had not wanted to take off the shorts he had been wearing in hot weather. According to him, beatings had happened quite often before. He had not recognised the people who were beating him, apart from Mr Doroshenko who had not been masked and had given the orders. They had beaten him on his back and had torn his shorts to pieces. The applicant had neither complained to the prison governor nor requested medical assistance considering it to be “useless”.
31. He had also complained to the Prosecutor General's Office, but his letter had not, according to him, reached the addressee, having been stopped by the prison authorities. He said that the Prosecutor General had visited the prison in mid-September 1999, but the applicant was not aware of the results of the visit. The Prosecutor General, accompanied by Colonel Zemlyanskiy from the Crimean Department of the Interior, had asked the applicant about his complaints to the Court. The applicant had confirmed that there had been pressure exerted on him not to complain to Strasbourg. He had expressed fear about the consequences of the Court Delegates' visiting him.
32. The applicant said that prison warders had organised some sort of training three or four times a year or when inmates had seriously violated the prison rules. He described the training as follows: “People in masks come and throw explosive packets with nuts at the cells, making a sound like a grenade. They also shoot with rubber bullets. The inmates are forced to lie down on the floor and the wardens walk through, beating them and pulling some of them to the corridor by the leg.” The applicant had once been burned. According to him, the last “training session” had taken place in February 1999.
33. The witness was the governor of Simferopol Prison. He had been working as governor for two and a half years.
34. The witness said that about 3,000 prisoners were serving sentences of whom 30 were on death row. According to him, all prisoners were aware of their rights and duties. A copy of the list of rights and duties was posted in every cell. He confirmed that there was no secrecy as to the rights and obligations of prisoners and that after the decree about prisoners' rights and obligations had been published, the prisoners were aware of them.
35. The witness said that he regularly visited all death row prisoners once a week.
36. He considered the heating conditions to be sufficient. The prison had its own boiler and there was a fresh-air ventilation system in the cells. According to him, the prisoners took a hot shower once every seven days, when the bed linen was also changed. He denied the applicant's allegation that all death row prisoners used the same razor, which would have created health problems on account of the risk of infection. He said that they shaved separately with blades given to them by the prison administration.
37. He stated that in the daytime there were two lamps lit in addition to the natural light from the cell windows, which he considered sufficient. At night, they had only one lamp lit. He said that every death row inmate had a cell of not less than 12 square metres. It was possible to read books and literature using both natural and artificial light.
38. The witness said that the inmates underwent an X-ray examination twice a year. Once a week the head of the medical division visited them, and every day a medical assistant conducted an inspection.
39. The witness said that death row prisoners had the right to communicate with the outside world without any limitations on either sending or receiving letters. He further said that this situation had improved since May 1999. He admitted that under the existing procedure, inmates' correspondence was censored, but he could not remember any cases when an incoming letter had been stopped without being given to its addressee, including letters from the European Commission of Human Rights. He confirmed that the applicant's correspondence had been registered in the journal. Moreover, all death row prisoner could complain of any violations of the right to exchange letters to the governor, to the Prosecutor who supervised the prison, or to any other official in the relevant department.
40. According to the witness, the possibilities for receiving parcels had improved in May 1999. Since then, the prisoners had been allowed to receive six food parcels (посилка, передача) and two small packets (бандероль) per year [Nota: Parcels to be forwarded to a prisoner may be sent by post (посилка) or brought in person to the prison (передача). Small items like books or periodicals can be sent by post as a small packet (бaндepoль - literally a “bundle”).]. Previously, they had not been allowed to receive any parcels until the judgment in their criminal case had become final. Moreover, the prisoners could buy food in the prison shop. They could spend 55 Ukrainian hryvnas (UAH) per month at prices which were the same as in the State-owned shops from which the prison bought the food.
41. According to the witness, prior to May 1998 the inmates had not been allowed to go for daily outdoor walks. Since then, they had been taken out for one hour without handcuffs.
42. He denied that any “training” described by the applicant had ever taken place. He said that the Department for the Execution of Sentences had ordered that such training should be carried out without explosives or masks.
43. The witness was the doctor in Simferopol Prison, where he had been working since 1992.
44. He said that the prison medical staff included six doctors (four general practitioners, one psychiatrist and one radiologist), medical assistants (фельдшер), an X-ray laboratory assistant, a pharmacist and a clinical assistant. According to him, medical services were provided 24 hours a day. Any inmate could apply at any time and get urgent medical assistance. The death row prisoners were seen by a medical assistant every day during their daily walk. They could ask him for any medical assistance and, if his help was not sufficient, they could request to see the doctor. Besides, they could apply directly to the doctor. Every inmate had a medical file compiled upon his arrival where all details and results of medical examinations were recorded and which was kept during the period of his imprisonment.
45. The witness had received no complaints about the sanitary conditions in the prison. He considered that the changes in regime for death row prisoners, especially the possibility of having outdoor walks and natural light in their cells, had improved their health conditions.
46. According to him, HIV testing of inmates was not obligatory and was only conducted upon individual request. The test was preceded by a confidential interview between the doctor and the prisoner. The witness did not confirm if there were inmates infected with the HIV virus, claiming that this was confidential information. The only other person who knew about inmates infected by HIV was the doctor responsible for the testing and the preceding consultations.
47. The witness confirmed that the applicant had never applied for medical assistance. Nor had he asked for help because he had been beaten; even if he had done so, the result of his medical examination would have been recorded in his medical file.
48. The witness was a medical assistant who had been working in Simferopol Prison for two and a half years. He was responsible for the daily inspection of the inmates' sanitary conditions, while the doctor conducted visits and attended emergency situations. He considered that there were particular problems with death row inmates and, in fact, he worked mostly with them. He accompanied these prisoners during their daily outdoor walks.
49. He confirmed that the improvement of living conditions in the death row prisoners' cells had had a positive influence on their health. Since then he had not received any further complaints from them regarding health and hygiene.
50. The witness stated that he had never seen any signs of brutality by warders against the death row inmates, or any bodily injuries. He had never heard about any such complaints made to other staff in the prison. He examined the inmates on a weekly basis and reported to his superiors. According to him, the applicant had not complained any more than the other inmates.
51. He further said that for the last one and a half months there had been a dentist in the hospital and that other doctors were able to provide assistance. According to him, the applicant had not applied for dental help.
52. The witness was the senior warder of Simferopol Prison. His duties consisted in observing inmates, ensuring that they abided by the prison regime, receiving applications and complaints from them, and taking them for outdoor walks or to any meetings they had.
53. He had first met the applicant a year and half ago. He said that he had behaved like other inmates, without any distinguishing characteristics. The applicant had never made any complaints to the witness, and the witness had not heard about any complaints made by the applicant to other institutions. He saw him at least three times a day during the breaks for meals and sometimes at other times of the day.
54. The witness had not heard about any serious complaints from other inmates or any complaints about ill-treatment of an inmate. He could not remember if the applicant had ever been punished for violating the prison rules. He was not personally entitled to punish inmates. If an inmate behaved inappropriately, the witness wrote a report to his superior, who took a decision. The witness had never written anything about the applicant.
55. The Court Delegates visited the cell where the applicant was detained. The size of the applicant's cell area was about 12 square metres. The cell was in order and clean. There was an open toilet, a washbasin with a cold water tap, two beds fixed on the floor, central heating and a window with bars. There were some books, newspapers, a stock of soap and toilet paper. The cell was sufficiently heated and ventilated.
56. The Delegates were shown the prison shower area, which was reasonably clean. They also visited an exercise yard.
57. The applicant's medical file was created on 20 March 1996. It includes a list of vaccinations, according to which the applicant was vaccinated on 21 March and 19 September 1997, 20 March and 28 August 1998. Moreover, he underwent a test for detection of tuberculosis on 20 March and 22 September 1996, and on 11 February and 12 August 1999. On 29 April 1998 he underwent a full medical examination. He complained of pain in his hand. He underwent a blood test. The doctor noted that the applicant's state of health was normal and suggested that he take more vitamins.
58. From the documents produced before the Court it appears that the applicant's wife, in her capacity as the applicant's legal representative, made several requests to visit her husband. She received permission to see him on 7, 14 and 21 September 1999. Moreover, on 21 August 1999 she was given permission to visit her client every Tuesday.
59. According to the prison records, the applicant received money in his prison bank account on 22 May (UAH 50), 25 July (UAH 15), 15 August (UAH 20) and 5 September 1997 (UAH 27), and on 20 March (UAH 30), 24 April (UAH 50) and 4 August 1998 (UAH 50).
60. According to the prison shop records, he spent his money purchasing various items in the prison shop on the following occasions:
On 4, 8 and 23 July (UAH 14.45, 7.20 and 8.67 respectively), 8 August (UAH 7.77), 2 (UAH 8.91) and 24 September (UAH 6.67), 6 and 22 October (UAH 6.66 and 8.18 respectively), 5 and 20 November (UAH 6.13 and 7.64 respectively), 3 and 18 December 1997 (UAH 7.87 and 7.15 respectively), and on 9 January (UAH 7.48), 23 February (UAH 14.97), 5 and 20 March (UAH 8.00 and 6.99 respectively), 9 and 21 April (UAH 12.08 and 2.91 respectively), 22 May (UAH 14.99), 9 and 17 June (UAH 8.94 and 5.90 respectively), 7 and 21 July (UAH 7.54 and 7.18 respectively), 6 and 26 August (UAH 6.80 and 8.33 respectively) and 11 September 1998 (UAH 9.22).
On 8 August and 22 October 1997 and on 11 September 1998 the applicant bought some books.
On 1 December 1997 and 27 January 1998 he paid UAH 0.26 and UAH 0.52 respectively for posting two letters.
61. Under Article 8 §§ 2 and 3, the Constitution is directly applicable. There is a guaranteed right to lodge an action in defence of the constitutional rights and freedoms of the individual and of the citizen directly on the basis of the Constitution of Ukraine.
62. Article 9 § 1 provides that international treaties, which are in force and accepted as binding by the Verkhovna Rada of Ukraine, are part of the national legislation of Ukraine.
63. Article 15 § 3 prohibits censorship.
64. Under Article 19 the legal order in Ukraine is based on the principles according to which no one may be forced to do what is not envisaged by the law. State authorities and local self-government bodies and their officials are obliged to act only according to those principles, within the limits of their authority, and in the manner envisaged by the Constitution and the laws of Ukraine.
65. Article 22 provides that human and citizens' rights and freedoms are guaranteed and may not be diminished by the adoption of new laws or the amendment of laws that are in force.
66. Under Article 29 §§ 2 and 4 no one may be arrested or held in custody other than pursuant to a reasoned court decision and only on grounds and in accordance with procedures established by law. Everyone arrested or detained must be informed without delay of the reasons for his arrest or detention, apprised of his rights, and from the moment of detention must be given the opportunity to defend himself in person, or to have the assistance of a defence lawyer.
67. Under Article 55 §§ 2 and 4, everyone is guaranteed the right to challenge the decisions, actions or omissions of State authorities, local self-government bodies, officials and officers of a court of law. After exhausting all domestic legal remedies everyone has the right to appeal for the protection of his rights and freedoms to the relevant international judicial institutions or to the relevant authorities of international organisations of which Ukraine is a member or participant.
68. Under Article 59 everyone has the right to legal assistance. Such assistance is provided free of charge in cases envisaged by law. Everyone is free to choose the defender of his rights. In Ukraine the Bar (адвокатура) ensures the right to a defence against charges and the provision of legal assistance in deciding cases in courts and before other State authorities.
69. Article 63 § 3 provides that a convicted person enjoys all human and citizens' rights, subject only to restrictions determined by law and established by a court ruling.
70. According to Article 64, human and citizens' rights and freedoms may not be restricted guaranteed by the Constitution, except in cases envisaged by the Constitution of Ukraine.
71. Conditions on death row in the Ukrainian prison system were governed successively by an Instruction of 20 April 1998 on conditions of detention of persons sentenced to capital punishment (hereinafter “the Instruction”) and by Temporary Provisions of 25 June 1999 on the conditions of detention of persons sentenced to capital punishment in the isolation blocks (hereinafter “the Temporary Provisions”).
72. The Instruction provided that after the sentence had become final, persons sentenced to death had to be kept in isolation from other prisoners in specially designed cells. Save in exceptional cases, no more than two such prisoners were to be detained in one cell. The cell area allocated to one prisoner in a single cell had to be not less than 4 square metres and in a double cell not less than 3 square metres. The prisoners were provided with an individual sleeping-place and with bed linen. They wore a uniform designed for the category of especially dangerous recidivists. Reference was also made to their legal status and obligations. This determined the frequency of meetings with relatives and the number of letters inmates could send and receive: they were allowed one visit per month and could send one letter per month. There was no limitation on the correspondence they could receive. The inmates could receive two small packets a year. They were allowed to have a daily one-hour walk in the fresh air. Outside their cells, inmates were handcuffed. They were not allowed to work.
Prisoners were also allowed to read books, magazines and newspapers borrowed from the prison library and/or bought through the prison distribution network; they could receive money transfers; they could keep personal objects and food in their cells, and buy food and toiletries in the prison shop twice a month (up to the value of the statutory minimum wage), and play board games. They could meet lawyers. Medical treatment was provided in accordance with national legislation.
The prisoners could lodge complaints with State authorities. Such complaints had to be dispatched within three days. Complaints to the Public Prosecutor were not censored.
73. The Temporary Provisions extended the rights of persons sentenced to capital punishment in comparison with the Instruction. In particular, prisoners were allowed to have eight hours of sleep during the night; they could receive six parcels and three small packets per year, buy food and toiletries in the prison shop (up to the value of 70% of the statutory minimum wage), pray and read religious literature and have visits from a priest, and write complaints to State authorities. They were allowed to send and receive letters without any limits and to have monthly visits of up to two hours from their relatives. A prison official had to be present during those visits. Meetings with a lawyer in order to provide the inmates with legal aid were carried out in accordance with the correctional-labour legislation.
74. According to the Code of Criminal Procedure, pre-trial detention is a preventive measure applicable to an accused, a defendant or a person suspected of having committed a crime punishable with imprisonment, or a convicted person whose sentence has not yet been enforced.
75. In accordance with section 8(4), persons sentenced to capital punishment whose sentence had not become final were held separately from all other detained persons.
76. Section 9(1) of the Act provides inter alia that detainees have the right (a) to be defended in accordance with the rules of criminal law, (b) to be acquainted with the rules of detention, (c) to take a one-hour daily walk, (d) to receive twice a month a parcel weighing up to eight kilograms and to receive unlimited money transfers and amounts of money by way of remittance or personal delivery, (e) to buy foodstuffs and toiletries to the value of one month's statutory minimum wage, paying by written order, as well as unlimited amounts of stationery, newspapers and books in prison shops, (f) to use their own clothing and footwear and to have with them documents and notes related to their criminal case, (g) to use TV sets received from relatives or other persons and board games, newspapers and books borrowed from the library in their previous place of detention or bought from shops, (h) individually to perform religious rituals and use religious literature and objects made of semi-precious materials pertaining to their beliefs, provided that this does not lead to a breach of the rules applicable to places of pre-trial detention or restrict the rights of other persons, (i) to sleep eight hours a night, during which time they are not required to participate in proceedings or to do anything else except in cases of extreme emergency, and (j) to lodge complaints and petitions and send letters to State authorities and officials in accordance with the procedure prescribed by section 13 of the Act.
77. Under section 11, detainees are required to be provided with everyday conditions that meet sanitary and hygiene requirements. The cell area for one person may not be less than 2.5 square metres. Detainees are to be supplied with meals, an individual sleeping-place, bedclothes and other types of material and everyday provisions free of charge and according to the norms laid down by the Government. In case of need, they are to be supplied with clothes and footwear of a standard form.
78. In accordance with section 12(1), permission for relatives or other persons to visit a detainee (in principle, once a month for one to two hours) can be given by the administrative authorities of the place of detention, but only with the written approval of an investigator, an investigative authority or a court dealing with the case. Under paragraph 4, detainees have the right to be visited by defence counsel, whom they may see alone with no restrictions on the number of visits or their length, from the moment the lawyer in question is authorised to act on their behalf, such authorisation being confirmed in writing by the person or body dealing with the case.
79. Under section 13(1), detainees can exchange letters with their relatives and other persons and enterprises, establishments and organisations with the written permission of an authority dealing with the case. Once a sentence starts to run, correspondence is no longer subject to any limitations.
80. According to Article 28 of the Code (Main requirements of the regime in detention institutions), the main features of the regime in detention establishments are: the compulsory isolation and permanent supervision of sentenced persons, so as to exclude any possibility of the commission of new crimes or other acts against public order being committed by them; strict and continuous observance of obligations by these persons; and various detention conditions dependent on the character and gravity of the offence and the personality and behaviour of the sentenced person.
Sentenced persons must wear a uniform. They must also be searched; body searches must be conducted by persons of the same sex as the person searched. Correspondence is subject to censorship, and parcels and packages are subject to opening and checking. A strict internal routine and strict rules must be established in corrective labour establishments.
Sentenced persons are prohibited from keeping money and valuables, or other specified objects, in corrective labour establishments. Any money and valuables found are to be confiscated and, as a rule, transferred to the State in accordance with a reasoned decision of the governor of the institution, sanctioned by a prosecutor.
A list of objects which sentenced persons are allowed to possess, giving the number or quantity of each item and the procedure for confiscating objects whose use is prohibited in corrective labour establishments, must be established by the internal regulations of such establishments.
Under the procedure established by the Code, sentenced persons are allowed to buy food and toiletries, to be paid for by written order, to be visited, to receive parcels and small packets and money by remittance, to correspond and to send money to relatives by remittance.
81. Article 37 § 1 (Purchase of food and toiletries by sentenced persons) provides that sentenced persons are allowed to buy food and toiletries, paying by written order, from the money received by remittance.
82. Article 40 provides inter alia that a lawyer may be given permission to meet his client on presentation of his licence and identity card. Visits are not limited as to their number and length and, at the lawyer's request, may be carried out without a prison warder being present.
83. Under Article 41 (Receipt of parcels and small packets by persons sentenced to imprisonment) sentenced persons held in corrective labour colonies (виправнo-тpудова колонія) are allowed to receive, per year: seven parcels in colonies subject to the general regime (колонія загального режиму), six parcels in colonies subject to the restricted regime (колонія посиленого режиму) and five parcels in colonies subject to the strict and special regime (колонія суворого режиму). Sentenced persons held in educational labour colonies (колонія виховно-трудова) are allowed to receive per year: ten parcels in colonies subject to the general regime and nine parcels in colonies subject to the restricted regime.
Convicted offenders serving their sentence in a prison are not allowed to receive parcels.
Irrespective of the type of regime under which they are held, sentenced persons are allowed to receive not more than two small packets per year, and to buy literature through the sales distribution network without any restrictions.
The quantity of parcels and small packets of all types is not restricted for sentenced persons held in corrective labour colony camps (виправнo-тpудова колонія-поселення).
A list of foodstuffs and toiletries which sentenced persons are allowed to receive in parcels and small packets, as well as the procedure for their receipt by and delivery to the sentenced persons, is to be established in the internal regulations of corrective labour establishments.
84. Under Article 42 (Receipt and sending of money by sentenced persons by remittance) sentenced persons are allowed to receive unlimited amounts of money by remittance, as well as to send money to their relatives and, if this is permitted by the authorities of the corrective labour establishments, to other persons. The money received by remittance is transferred to the personal account of the sentenced person.
85. Article 43 § 2 (Correspondence of persons sentenced to imprisonment) provides that sentenced persons held in prisons may receive unlimited mail and may send letters as follows: one letter per month for those held under the general regime and one letter every two months for those held under the strengthened regime.
86. According to section 12(1), the public prosecutor deals with petitions and complaints concerning breaches of the rights of citizens and legal entities, except complaints that are within the jurisdiction of the courts. Paragraph 4 provides that an appeal lies from the prosecutor's decision to the supervising prosecutor and, in certain cases, to the court. Paragraph 5 provides that the decision of the Prosecutor General is final.
87. Under section 38 the prosecutor or his deputy has the power to make a request to a court for any material in a case where a judgment or another decision has come into force. If there are any grounds for reopening the proceedings, the prosecutor may challenge the court judgment or any other decision.
88. Under section 44(1) the matters subject to the public prosecutor's supervision are: adherence to the legal rules on pre-trial detention and corrective labour or other establishments for the execution of sentences or coercive measures ordered by a court; adherence to the procedures and conditions for holding or punishing persons in such establishments; the rights of such persons; and the manner of carrying out by the relevant authorities of their duties under the criminal law and legislation on the enforcement of sentences. The public prosecutor may at any time visit places of pre-trial detention, establishments where convicted persons are serving sentences or establishments for compulsory treatment or reform, in order to conduct interviews or peruse documents on the basis of which persons have been detained, arrested or sentenced or subjected to compulsory measures; he may also examine the legality of orders, resolutions and decrees issued by the administrative authorities of such establishments, terminate the implementation of such acts, appeal against them or cancel them where they do not comply with the law, and request officials to give explanations concerning breaches which have occurred.
89. In its Resolution, the Assembly deplored the executions which, reportedly, had been carried out recently in Latvia, Lithuania and Ukraine. In particular, it condemned Ukraine for apparently violating its commitments to introduce a moratorium on executions of the death penalty upon its accession to the Council of Europe. It called upon this country to honour its commitments regarding the introduction of a moratorium on executions and the immediate abolition of capital punishment warning it that further violation of its commitments, especially the carrying out of executions, would have consequences under Order No. 508 (1995).
90. The Assembly confirmed in this Resolution that it had received official information that, in the first half of 1996, eighty-nine executions had been carried out in Ukraine, and regretted that the Ukrainian authorities had failed to inform it of the number of executions carried out in the second half of the year. The Assembly was particularly shocked to learn that executions in Ukraine had been shrouded in secrecy, with apparently not even the families of the prisoners having been informed, and that the executed had reportedly been buried in unmarked graves. It condemned Ukraine for having violated its commitment to put into place a moratorium on executions, deplored the executions that had taken place, and demanded that Ukraine immediately honour its commitments and halt any executions still pending.
91. In these texts, the Assembly noted that Ukraine had clearly failed to honour its commitments (212 persons had been executed between 9 November 1995 and 11 March 1997, according to official sources). At the same time, it noted that since 11 March 1997 a de facto moratorium on executions had been in effect in Ukraine. The Assembly insisted that the moratorium be reconfirmed de jure and that the Verkhovna Rada ratify Protocol No. 6 to the Convention. It stressed the importance of the de facto moratorium on executions and firmly declared that, if any further executions took place, the credentials of the Ukrainian parliamentary delegation would be annulled at the following part-session of the Assembly, in accordance with Rule 6 of its Rules of Procedure.
92. Delegates of the CPT visited places of detention in Ukraine in the years 1998, 1999, and 2000. Reports on each of the visits were published on 9 October 2002, together with the Responses to the Reports of the Ukrainian Government.
93. The visit of the delegation, which took place from 8 to 24 February 1998, was the CPT's first periodic visit to Ukraine. In the course of the visit the delegation inspected, inter alia, the pre-trial prison (SIZO) (“investigation isolation” establishment) No. 313/203 in Kharkiv. On the ground floor of building No. 2 of SIZO No. 203 were housed at the time of the visit fifteen prisoners who had been sentenced to death, although as was recorded in a footnote to the Report, the delegation had received assurances that since 11 March 1997 a de facto moratorium on executions had been observed.
94. In its Report (paragraph 131), the CPT expressed at the outset its serious concern about the conditions under which these prisoners were being held and about the regime applied to them. It was noted that prisoners sentenced to death were usually accommodated two to a cell, the cell measuring 6.5-7m². The cells had no access to natural light, the windows being obscured by metal plates. The artificial lighting, which was permanently on, was not always sufficiently strong with the result that some cells were dim. To ventilate the cells, prisoners could pull a cord that opened a flap; despite this the cells were very humid and quite cold (paragraph 132).
The equipment in the cells was described in the Report as being rudimentary, consisting of a metal bed and/or sloping platform (equipped with a thin mattress, sheets of dubious cleanliness and a blanket which was manifestly insufficient to keep out the cold), a shelf and two narrow stools. Prisoners were supposed to be able to listen to radio programmes via a speaker built into the wall of the cell, but it had been reported to the delegation that the radio only functioned sporadically (ibid.).
All the cells had un-partitioned toilets which faced the living-area; as a result, a prisoner using the toilet had to do so in full view of his cellmate. As regards toiletries, prisoners sentenced to death were in a similarly difficult situation as many of the other inmates; items such as soap and toothpaste were rarities (ibid.).
It was further recorded that prisoners sentenced to death had no form of activity outside their cells, not even an hour of outdoor exercise. At best they could leave their cells once a week to use the shower in the cell-block, and for an hour a month, if they were authorised to receive family visits. In-cell activities consisted of reading and listening to the radio when it worked. Apart from the monthly visits which some inmates received, human contact was limited essentially to the occasional visit by an Orthodox priest or a member of the health-care staff, who spoke to the prisoners through a grill in the cell-door (paragraph 133).
95. The CPT summarised its findings in this regard as follows:
“In short, prisoners sentenced to death were locked up for 24 hours a day in cells which offered only a very restricted amount of living space and had no access to natural light and sometimes very meagre artificial lighting, with virtually no activities to occupy their time and very little opportunity for human contact. Most of them had been kept in such deleterious conditions for considerable periods of time (ranging from 10 months to over two years). Such a situation may be fully consistent with the legal provisions in force in Ukraine concerning the treatment of prisoners sentenced to death. However, this does not alter the fact that, in the CPT's opinion, it amounts to inhuman and degrading treatment.” (paragraph 134).
It was further recorded that the delegation had received numerous complaints from prisoners sentenced to death about the fact that they lacked information with regard to their legal situation the progress of their cases, follow-up to applications for cases to be reviewed, examination of their complaints etc. (paragraph 138).
96. In its Response to the 1998 Report, the Ukrainian Government recorded that a number of organisational and practical steps had been taken to resolve the problems identified by the CPT. In particular, the Temporary Regulations had been introduced to guarantee to prisoners sentenced to death the right to be visited once a month by relatives, to be visited by a lawyer to get legal assistance, to be visited by a priest and to receive and send correspondence without limitation. It was further noted
(i) that prisoners sentenced to death would have daily walks in the open air and that for this purpose 196 yards of the pre-trial prisons had been rebuilt or re-equipped;
(ii) that, in order to improve natural lighting and air of all cells, the blinds and metal peakes over cell windows had been removed; and
(iii) that, for the purposes of informing inmates sentenced to death of their rights and legal status, extracts from the Temporary Regulations had been placed on the walls of each cell.
97. A CPT delegation visited Ukraine from 15 to 23 July 1999 in the course of which they again inspected SIZO No. 313/203 in Kharkiv where, at the time of the visit, there were detained 23 prisoners who had been sentenced to death. The Report noted that certain changes had occurred since the previous visit. In particular, the cells had natural light and were better furnished and the prisoners had an hour of exercise per day in the open air, although it was observed that there was insufficient space for real physical exercise (paragraphs 34-35). The Report further recorded that important progress had been made in the right of prisoners to receive visits from relatives and to correspond (paragraph 36). However, the CPT noted certain unacceptable conditions of detention including the fact that prisoners continued to spend 23 out of 24 hours a day in their cells and that opportunities for human contact remained very limited (paragraph 37).
98. A third visit to Ukraine took place from 10 to 21 September 2000, in the course of which the delegation inspected, inter alia, the pre-trial prison (SIZO No.15) in Simferopol. The CPT welcomed the decision of the Ukrainian authorities to abolish the death penalty and noted that most of the approximately 500 prisoners subject to the death sentence had had their sentences commuted to life imprisonment.
99. Despite these welcome steps, the CPT recorded that the treatment of this category of prisoner was a major source of concern to the Committee (paragraph 67). It was noted that, further to a provisional instruction issued in July 2000 and pending the establishment of two high-security units specifically intended for life prisoners, such prisoners were subjected to a strict confinement regime (paragraph 68). While living space in the cells was generally satisfactory and while work had started on refurbishing cells in all the establishments visited, there were major deficiencies in terms of access to natural light and the quality of artificial light and ventilation (paragraph 69). Moreover, life-sentence prisoners were confined in their cells for 23 ½ hours a day with no form of organized activities and, by way of activities outside their cells, were entitled to only half an hour outdoor exercise, which took place in unacceptable conditions. There was virtually no human contact: since the entry into force of the July 2000 instruction, visits from relatives had been forbidden and prisoners were only allowed to send one letter every two months, although there were no restrictions on receiving letters (paragraph 70).
100. In their Response to the Report the Ukrainian Government noted further legal amendments which ensured that life prisoners had one hour of exercise per day and two family visits of up to four hours per month. Further, to ensure adequate access to light, metal shutters had been removed from windows in all cells.
VIOLATED_ARTICLES: 3
8
NON_VIOLATED_ARTICLES: 3
8


ITEMID: 001-75470
LANGUAGEISOCODE: ENG
RESPONDENT: SVK
BRANCH: ADMISSIBILITY
DATE: 2006
DOCNAME: GERGEL v. SLOVAKIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant, Mr Ľubomír Gergel, is a Slovakian national of Roma ethnic origin. He was born in 1950 and lives in Zvolen. He was represented before the Court by Mr A. Dobrushi of the European Roma Rights Center in Budapest and Mr C. Igboanusi of the League of Human Rights Advocates in Bratislava.
On 19 March 2001 two Railway Police officers brought the applicant to their premises at the Zvolen railway station for the alleged purpose of checking his identity papers. On the way to the police station the officers insulted the applicant with racist remarks and one of them hit him across the face.
During the interrogation at the police station one officer kicked the applicant in the head, slapped him across the face, and while the applicant was on the floor, the officers kicked him repeatedly in the chest. The officers stole 1,500 Slovak korunas (SKK) from the applicant.
The applicant suffered a number of injuries including severe injuries to one kidney, contusion of his chest and face and a broken rib. He had to be treated and remained incapable to work for 42 days after the incident.
On 20 March 2001 the applicant tried to file a complaint, but the Railway Police officers at the Zvolen refused to accept it. On 27 March 2001 the applicant filed a complaint with the District Prosecutor in Zvolen. The latter transferred the complaint to the Railway Police Office in Zvolen. He also informed the Inspection Section at the Ministry of the Interior’s regional office in Banská Bystrica of the police officers’ refusal to receive the applicant’s complaint on 20 March 2001.
On 8 June 2001 a Railway Police investigator informed the applicant that the matter was being treated as an internal disciplinary investigation as there was no indication that an offence had been committed. In reply to the applicant’s complaint, the public prosecutor ordered the Railway Police to start criminal proceedings against three officers for abuse of authority.
On 22 April 2002 the District Court in Zvolen issued a summary penal order in which it convicted one Railway Police officer of abuse of authority and of causing intentional bodily harm while carrying out his duties. The court imposed a fine of SKK 10,000 (the equivalent of approximately 250 euros) on the convicted officer and ordered the latter to pay SKK 4,020 in damages to the applicant. The applicant was referred to a civil court with the remainder of his claim for damages. The other two railway officers involved had not been charged with any offence. In accordance with the relevant provisions of the Code of Criminal Procedure, the penal order was issued by a single judge without any prior hearing. It contained a notice about the remedies available the relevant part of which reads as follows:
“The accused or other persons entitled to do so on his behalf, the public prosecutor and the injured person to whom compensation for damage was granted can file an objection to the penal order within 8 days from its service. Upon filing of an objection, the penal order shall be quashed and a main hearing shall be held in the case.
The injured person can file an objection to the operative part [of the penal order] by which compensation for damage was granted to him...
If no objection is filed within the period fixed for that purpose, the penal order shall become final and enforceable.”
On 30 April 2002 the applicant challenged the penal order by means of a submission entitled an “appeal”. He argued, inter alia, that he had been injured by two officers and that a sum of money had been stolen from him.
The relevant part of the penal order which concerned the conviction of the accused and the sentence imposed on him became final on 11 May 2002. The District Court did not notify the applicant of this fact of its own initiative as this was not required by the law.
In a letter dated 17 July 2002 the District Court judge informed the applicant that he had no right to file an appeal as regards the court’s finding as to the guilt of the accused police officer and as regards the sentence imposed.
On 14 August 2002 the District Court delivered a decision in which it referred the applicant to a civil court with his claim for damages. Reference was made to Article 314g(2) of the Code of Criminal Procedure.
On 17 September 2002 the applicant filed a complaint to the Constitutional Court. He alleged that by its above conduct the District Court in Zvolen had violated his rights under Article 46 of the Constitution and Article 13 of the Convention. On 8 November 2002 the applicant extended his complaint in that he also alleged a violation of Articles 3 and 6 § 1 of the Convention, of Article 13 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and of Article 14 of the International Covenant on Civil and Political Rights. He requested that the penal order should be quashed and the District Court in Zvolen ordered to proceed with the case.
The Constitutional Court dismissed the complaint on 28 November 2002 as having been filed outside the statutory two month time-limit. The decision referred to section 53(3) of the Constitutional Court Act.
The Constitutional Court noted that the applicant did not allege that the penal order issued by the District Court in Zvolen had not been served on him. The penal order clearly indicated which remedies the applicant could use against it and, accordingly, it was evident from it that under the relevant law the applicant lacked standing to challenge the decision as to culpability of the accused and as to the sentence imposed on the latter. The applicant should have sought protection of his fundamental rights within two months from the final effect of the penal order.
Article 127 of the Constitution, as in effect from 1 January 2002, provides 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 a failure to act, the Constitutional Court may order [the authority] which violated the rights or freedoms in question to take the necessary action. At the same time the Constitutional Court may return the case to the authority concerned for further proceedings, order the authority concerned to abstain from violating fundamental rights and freedoms ... or, where appropriate, order those who violated the rights or freedoms set out in paragraph 1 to 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.” ...
Section 53(3) of the Constitutional Court Act provides that a constitutional complaint can be filed within a period of two months from the date on which the decision in question has become final and binding or on which a measure has been notified or on which a notice of other interference has been given. As regards the measures and other interferences, the above period commences when the complainant could have become aware of them.
Pursuant to Article 314e(1), a single judge can issue a penal order, without a hearing, where the evidence obtained permits the establishment of the relevant facts in a reliable manner.
Paragraph 5 of Section 314(e) provides that a penal order is, by its nature, equivalent to a judgment by which a person has been convicted.
Pursuant to Article 314g(1), the accused person, other persons entitled to do so on his or her behalf as well as the public prosecutor can file an objection to a penal order within 8 days from its service.
Paragraph 2 of Article 314g provides that an injured person can file an objection to the relevant part of a penal order by which compensation for damage was granted to him or her. Where the injured person files an objection, the part of the penal order which concerns compensation for damage is to be quashed. In such a case a single judge of the criminal court shall deliver a decision referring the injured person with his or her claim for damages to a civil court.
Under paragraph 3 of Article 314g, where a person entitled to do so files an objection to a penal order, a single judge shall hold a main hearing in the case. Otherwise the penal order becomes final and enforceable.
Pursuant to Article 314g(8)(a), a penal order becomes final and enforceable when no objection has been filed to it within the time-limit set for that purpose.
Regulation 66/1992, as amended, governs the internal rules of District Courts and Regional Courts including the organisation of their work.
Pursuant to section 23, as soon as it is established that a judicial decision has become final, the judge or another person authorised to do so shall indicate this fact and the date of its final effect on the decision included in the case file.
Section 24 provides that, at the request of a person who has been served with a decision prior to its final effect, the court shall put a stamp on that decision indicating when it became final and enforceable.