ITEMID: 001-104946
LANGUAGEISOCODE: ENG
RESPONDENT: NLD
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF S.T.S. v. THE NETHERLANDS
IMPORTANCE: 1
CONCLUSION: Remainder inadmissible;Violations of Art. 5-4;Non-pecuniary damage - award
JUDGES: Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Ján Šikuta;Josep Casadevall;Kristina Pardalos;Nona Tsotsoria
TEXT: 5. The applicant was born in 1988 and lives in Groningen.
6. The applicant’s parents’ relationship ended in 1990. The applicant’s mother was granted parental authority.
7. In 2001 the Child Care and Protection Board (Raad voor de Kinderbescherming) investigated the applicant’s situation because he had been displaying severe behavioural difficulties, had dropped out of school, had committed a number of offences and appeared disinclined to respect authority in any shape or form.
8. By a decision of 9 October 2002, the Juvenile Judge of the Groningen Regional Court (kinderrechter bij de rechtbank) placed the applicant under the supervision (ondertoezichtstelling) of the Groningen Juvenile Care Foundation (Stichting Jeugdzorg – “the Foundation”) for a period of one year and also issued an authorisation to the Foundation for the applicant’s custodial placement in a confined institution for treatment (gesloten uithuisplaatsing) for a period of three months. On 14 November 2002 the applicant was admitted to “Het Poortje” Juvenile Institution, a confined institution for treatment, in order to be observed and psychologically examined.
9. On 8 January, 6 March and 3 April 2003 the Juvenile Judge extended the authorisation for the applicant’s custodial placement in a confined institution. The last such extension was set to expire on 9 October 2003 – one full year after the first decision.
10. On 1 August 2003 the Juvenile Judge of the Groningen Regional Court received the Foundation’s request (dated 29 July) for a prolongation of the authorisation for the applicant’s custodial placement for the duration of the supervision order. Reference was made to a report containing the results of an examination of the applicant’s personality by a remedial educationalist/psychologist that had been issued on 1 February 2003.
11. On 10 September 2003 a hearing was held before the Juvenile Judge. The applicant stated that he did not want to be placed in a confined institution for treatment and that his behaviour had improved. On behalf of the Foundation it was submitted that the applicant had recently been placed at Rentray, a confined orthopsychiatric institution for persons with severe behavioural difficulties, that the intended treatment would take one to one and a half years, and that it was out of the question that the applicant would be able to live with his father or his grandmother as he had indicated he wished to do. The Juvenile Judge stated that the report on the applicant’s personality was clear and that a relapse, which was considered to be a real possibility, had to be prevented at all costs. Treatment was necessary, also in view of his age, and he had already been admitted to Rentray.
12. On 17 September 2003 the Juvenile Judge decided to extend the period of supervision for a further year, with effect from 9 October 2003, and to prolong the authorisation issued to the Foundation for the applicant’s custodial placement in a confined institution for treatment for the duration of the supervision order.
13. On 17 October 2003 the applicant lodged an appeal with the Leeuwarden Court of Appeal against the decision of 17 September 2003, in so far as it concerned the custodial placement.
14. A hearing was held on 11 December 2003. At the hearing the applicant’s counsel, emphasising that the case was not a particularly complicated one, requested the applicant’s immediate release as the case at issue had not been dealt with speedily within the meaning of Article 5 § 4 of the Convention. After having deliberated on this matter, the Court of Appeal considered that there appeared to be insufficient grounds to release the applicant immediately; nevertheless, a decision would be rendered as soon as possible and at the latest on 19 December 2003.
15. On 19 December 2003 the Court of Appeal quashed the decision of 17 September 2003 and extended until 1 May 2004, that is to say for six months rather than one year, the authorisation issued to the Foundation for the applicant’s custodial placement in a confined institution for treatment. In this connection the court ruled as follows:
“37. Having regard to the far-reaching character of [the] measure – involving as it does a deprivation of liberty –, it should not last longer than strictly necessary. On 14 November 2002 [the applicant] was placed in a confined institution for observation and diagnosis and on 26 August 2003 he was placed there for treatment. Having regard, inter alia, to the ... positive development in [the applicant’s] behaviour and to the individual treatment meeting which will take place in April 2004, the court perceives cause to extend the authorisation for [the applicant’s] custodial placement in a confined setting for treatment until 1 May 2004.”
As regards Article 5 § 4 of the Convention the Court of Appeal held as follows:
“7. In answering the question whether the case was decided sufficiently speedily, the court is of the opinion that the nature of the custodial measure at issue, the duration of that measure and the relationship between the duration of the measure and the (total) time that has elapsed between the moment the appeal was lodged and the date on which the appeal was decided upon should also be taken into consideration.
8. In the present case a measure involving deprivation of liberty was imposed in the framework of a child protection measure.
9. The imposed ... measure consists of extending the authorisation for [the applicant’s] custodial placement in a confined setting for a duration of one year, with effect from 9 October 2003.
10. [The applicant] lodged an appeal against that decision on 17 October 2003.
11. In a letter of 20 October 2003, the court invited the Foundation and [the applicant’s] father and mother to file their submissions by 10 November 2003 at the latest. It is to be noted, also in view of the custodial character of the measure, that these interested parties have been granted a shorter period of time within which to lodge observations than is customary in family-law cases. After all, pursuant to section 7 of the Uniform Regulations for petition-based proceedings in family-law cases (Uniform Reglement voor rekestprocedures in familiezaken) the usual period within which observations are to be lodged is six weeks.
12. Subsequently, by letters of 11 November 2003, the parties were summoned to appear at the court’s hearing of 11 December 2003 and the decision has been scheduled for today.
13. In view of the above-mentioned elements and the way they are related to each other, the court concludes that in the present case the decision can still be said to have been taken speedily within the meaning of Article 5 § 4 of the Convention, and that this provision has therefore not been breached.”
16. On 13 January 2004 the applicant lodged an appeal on points of law (beroep in cassatie) with the Supreme Court (Hoge Raad). He complained explicitly of a breach of Article 5 § 4 of the Convention in that the Court of Appeal had been wrong to have had regard only to the period between 17 October 2003, the date on which the appeal had been lodged, and 19 December 2003, the date of the decision. He argued that the court should have included the period from 14 November 2002 to 17 October 2003 during which time he had also been deprived of his liberty, as well as the fact that (at that time) he had been a minor below the age of 16. He further claimed that the considerations of the Court of Appeal relating to the shorter time than usual for the submission of observations could not warrant the conclusion that the decision had been taken speedily, nor were they relevant in that context. The statement of points of appeal was lodged by a member of the Supreme Court bar, a lawyer practising in The Hague.
17. On 10 September 2004 an Advocate-General (advocaat-generaal) to the Supreme Court, acting as deputy to the Procurator General (procureurgeneraal), submitted an advisory opinion. She considered that as the period for which the authorisation had been granted had in the meantime lapsed, the applicant no longer had an interest in the appeal and it therefore ought to be declared inadmissible in accordance with the established case-law of the Supreme Court. Nevertheless, with a view to developing the law, the Advocate-General addressed the merits of the appeal. Reference was made to the Court’s judgments and decision in the following cases: Sanchez-Reisse v. Switzerland (21 October 1986, Series A no. 107); E. v. Norway (29 August 1990, Series A no. 181A); Van der Velden v. the Netherlands ((dec.), no. 29514/05, ECHR 2006XV); Navarra v. France (23 November 1993, Series A no. 273B); and Bouamar v. Belgium (29 February 1988, Series A no. 129). The Advocate-General noted that the period between 17 October 2003, the date on which the appeal to the Court of Appeal had been lodged, and the hearing before that court on 11 December 2003 had already lasted 54 days, and that a further 8 days had elapsed until the decision of 19 December 2003. However, the entire procedure – from the first request for extension of the authorisation until the decision taken on appeal – had lasted from 1 August 2003 to 19 December 2003, that is a period of 141 days. As to other circumstances that had to be taken into consideration, such as the complexity of the case and the applicant’s behaviour, the Advocate-General pointed out that the extension at issue was based on reports that had been issued before the start of the proceedings in question and that the only delay that could be attributed to the applicant concerned the time that had elapsed between the decision of the Juvenile Judge of 17 September 2003 and the lodging of the appeal on 17 October 2003. The Advocate-General concluded that, in her opinion, the decision of the Court of Appeal had not been taken speedily within the meaning of Article 5 § 4 of the Convention.
18. The applicant, through counsel, submitted a written response to the Advocate-General’s advisory opinion on 23 September 2004. He argued that the lawfulness of the detention orders following on from the original order depended on the lawfulness of the original order. Furthermore, domestic law provided for an appeal to the Supreme Court in cases such as the present; such an appeal could only be effective if the Supreme Court declared the applicant’s appeal admissible and ruled on its merits.
19. By a final decision of 5 November 2004, the Supreme Court declared the applicant’s appeal inadmissible for lack of interest, since the authorisation at issue had already lapsed in the meantime.
20. On 29 April 2004, shortly before the day on which the Court of Appeal’s order of 19 December 2003 was due to expire (1 May 2004), the Juvenile Judge of the Groningen Regional Court extended its validity for four more weeks. It was extended for a further two months on 19 May 2004. The intention was to transfer the applicant to an open setting during this time.
21. On 14 June 2004 the applicant was transferred to an open (non-custodial) unit within the Rentray institution. It appears that the applicant absconded from this unit three times between July and September 2004.
22. On 6 October 2004 the Juvenile Judge of the Groningen Regional Court made a new supervision order and authorised the applicant to be placed in a custodial institution for a period of six months, backdated to 30 September 2004. The applicant and his mother appealed on 17 October and 4 November respectively.
23. On 8 December 2004 the Leeuwarden Court of Appeal, ruling on both appeals, shortened the placement order to three months instead of six on formal grounds. It dismissed an argument based on Article 5 § 4 of the Convention, holding that the proceedings had been sufficiently speedy, and that in any event a finding of a violation of the requirement of “speediness” would not ipso jure have entitled the applicant to immediate release since that might well have gone against his own best interests.
24. It appears that the applicant remained in a secure institution until the time he reached his majority, which was in mid-2006.
25. Under Article 1:254 of the Civil Code (Burgerlijk Wetboek), the Juvenile Judge may, on the application of, inter alia, the Child Care and Protection Board, order a minor child’s placement under the supervision of a family supervision agency (gezinsvoogdij-instelling) within the meaning of section 60 of the Juvenile Care Services Act (Wet op de Jeugdhulpverlening), if the child is growing up under such conditions that he or she is threatened with moral or physical ruin (zedelijke of lichamelijke ondergang). Such an order may be given for a maximum period of one year, but can be extended by a maximum of one year at a time (Article 1:256 of the Civil Code).
26. If it is deemed necessary in the interest of the child’s care and upbringing or for the purposes of an examination of the child’s mental or physical health, the Juvenile Judge may further authorise a custodial placement of the child (Article 1:261 § 1 of the Civil Code). Authorisation for custodial placement in a confined institution can be extended only if this is required on account of severe behavioural difficulties of the minor concerned (Article 1:261 § 3). Such authorisation may only be given for a maximum period of one year, with the possibility of subsequent extension for a maximum of one year at a time (Article 1:262 § 1).
27. An appeal against decisions taken in petition-based proceedings, including those of the Juvenile Judge, lies to the Court of Appeal (Article 358 § 1 of the Code of Civil Procedure (Wetboek van Burgerlijke Rechtsvordering)). The time-limit for bringing such an appeal is three months from the date of the decision (Article 358 § 2).
28. Pursuant to Article 426 § 1 of the Code of Civil Procedure, those who have participated in the proceedings at first instance or at the appellate stage may lodge an appeal on points of law with the Supreme Court within three months from the date of the decision. Such an appeal is introduced by way of a petition signed by a member of the Supreme Court bar (Article 426a). The Supreme Court takes its decision after the Procurator General has submitted a written advisory opinion, within a time-limit set by the Supreme Court itself (Article 429 § 1).
29. At the relevant time, the Supreme Court bar was composed of all legal practitioners who were members of the bar of The Hague, excluding any others (section 1(2) of the Legal Profession Act (Advocatenwet)).
30. It is constant case-law of the Netherlands Supreme Court to declare appeals on points of law contesting the lawfulness of detention inadmissible if the detention has ended, for whatever reason, by the time the court comes to consider the question. This is what it decided, for example, in its judgment of 7 October 1997 (see Nederlandse Jurisprudentie (Netherlands Law Reports, “NJ”) 1998, no. 227).
31. The Supreme Court confirmed this position in a judgment of 31 May 2005 (NJ 2005, no. 531), in which it declared inadmissible an appeal on points of law lodged by a person committed to detention for twelve days for failing to give evidence as a witness in court but who had been released nearly eleven months earlier. Even so, the Supreme Court saw fit to address the merits of the case obiter, considering that had the appeal been admissible, it would have failed nonetheless.
VIOLATED_ARTICLES: 5
VIOLATED_PARAGRAPHS: 5-4


ITEMID: 001-81731
LANGUAGEISOCODE: ENG
RESPONDENT: SVK
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF KUCERA v. SLOVAKIA
IMPORTANCE: 2
CONCLUSION: Preliminary objection dismissed (non-exhaustion of domestic remedies);No violation of Art. 5-1;Violation of Art. 5-3;Violation of Art. 5-4;Violation of Art. 8 (entry of the applicant's apartment by the police);Violation of Art. 8 (refusal to allow the applicant to meet with his wife during his detention on remand);Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award
JUDGES: Nicolas Bratza
TEXT: 8. The applicant was born in 1962 and lives in Považská Bystrica.
9. The applicant was the director of the Police Department in the Považská Bystrica District. His application relates to criminal proceedings instituted against him, the circumstances of which are described below.
10. According to the applicant, at 6 a.m. on 17 December 1997 several armed policemen in masks burst into his flat without his consent. The policemen presented a police investigator's decision to the applicant and his wife. It was dated 17 December 1997 and accused them, together with several others, of extortion. The investigator suspected the accused of having forced the owner of a limited liability company to transfer his shares in the company and his car to a third party.
11. According to the Government, the police had come to the applicant's door and entered the apartment with the applicant's permission. The purpose of their visit had been to deliver the investigator's decision to the applicant and his wife.
12. The applicant was brought to the Regional Office of Investigation in Žilina. The applicant's wife was allowed to take their daughter to the kindergarten and she too was subsequently escorted to the Regional Office of Investigation, where she and the applicant were questioned. The applicant was held in a cell until 5 a.m. on 18 December 1997 when a public prosecutor ordered his release.
13. On 19 December 1997 an officer of the Police Interventions Department in Žilina wrote a report on the visit to the applicant's apartment on 17 December 1997. It indicated that the purpose of the visit had been fulfilled and that the applicant had been escorted to the Regional Office of Investigation. It had not been necessary to use any coercive measures, no one had been injured and no damage had been caused.
14. On 4 February 1998 the applicant filed a complaint about the incident of 17 December 1997. It was transferred to the Inspection Department of the Police Corps within the Ministry of the Interior.
15. On 5 March 1998 the applicant stated to the investigator that the police had entered his apartment without a search warrant after he had opened the door. They had delivered an envelope to him and had looked around the apartment without his consent.
16. On 22 April 1998 the applicant's wife was questioned. She stated that she had been in bed when the police arrived. After her husband had opened the door she had heard him asking the policemen what had happened and what they wanted. She had gone to the door and seen four policemen in the corridor, two of whom were wearing masks. She was asked to sign a document. Subsequently, the masked policemen had left with her husband and two officers in plain clothes had remained in the apartment with her, before accompanying her to the kindergarten. The officers had then taken her to the Regional Office of Investigation. No force had been used. She said that she had not heard her husband give the policemen permission to enter the apartment.
17. The investigator took statements from three policemen who had gone to the applicant's apartment on 17 December 1997. On 15 April 1998 Officer B. of the police interventions unit stated that the applicant had asked to be allowed to read the charge and to get dressed. The officers of the criminal police had therefore asked him whether they could enter the apartment. According to Officer B., the applicant had replied in the affirmative. Two members of the criminal police and two members of the police interventions unit had entered the apartment. On 24 April 1998 Officer M. stated that the applicant had invited them into the corridor of his apartment as he had not wanted to deal with them at the front door. The police had served the charge on both the applicant and his wife. They had not used force and did not search the apartment. Finally, on 26 May 1998 Captain B. stated that the applicant had invited them into his apartment as he considered that the whole matter was a mistake. No search had been carried out.
18. On 28 May 1998 the Inspection Department of the Police Corps dismissed the applicant's complaint about the police's entry into his apartment on 17 December 1997. The decision was based on statements of the applicant and his wife and on the explanations given by the three policemen involved. The inspection department concluded that there was no evidence of an offence having been committed.
19. On 19 December 1997 the police again arrested the applicant. On 20 December 1997 a judge of the Trenčín District Court remanded him in custody with effect from 19 December 1997. Reference was made to Article 67 § 1(b) of the Code of Criminal Procedure. The judge found that Mr R., the alleged victim, had described in detail the acts the accused were alleged to have committed, including threats of physical liquidation. There was nothing to indicate that those statements were wholly unsubstantiated. The judge therefore considered the detention of the accused necessary to prevent them from exerting further pressure on the alleged victim.
20. On 27 January 1998 the Trenčín Regional Court dismissed the applicant's complaint against the decision to remand him in custody. It found that the acts the applicant and his co-accused were alleged to have committed had been described in detail by the alleged victim and several witnesses. Both the serious nature of those accusations and the need to take further evidence justified the conclusion that the accused's release could jeopardise the investigation.
21. In a letter dated 25 February 1998, the applicant asked for his release. He argued that the available evidence showed that the accusations the alleged victim had made against the applicant were false.
22. The request for release was filed with the Trenčín Regional Prosecutor's Office on 5 March 1998. The public prosecutor refused to release the applicant and submitted his request to the Trenčín District Court the same day.
23. On 12 March 1998 the Trenčín District Court dismissed the request on the ground that the available evidence did not indicate that the alleged victim's statements were false and the applicant's detention was still necessary within the meaning of Article 67 § 1(b) of the Code of Criminal Procedure. The decision was served on the applicant and his lawyer on 18 and 19 March 1998 respectively.
24. On 23 and 26 March 1998 the applicant filed a complaint. He alleged that despite the fact that the investigation had been under way for a long time, no direct evidence had been obtained against him. The applicant had been cross-examined in the presence of the alleged victim, who had expressly stated that the applicant had exerted no pressure on him.
25. The file was submitted to the Trenčín Regional Court on 2 April 1998. On 12 May 1998 the Trenčín Regional Court dismissed the applicant's complaint for the reasons set out in the District Court's decision. It added that the applicant's detention was also necessary on the ground that he had attempted, on 19 January 1998, to send a letter to his wife from the prison in secret. The decision was served on the applicant on 28 May 1998.
26. On 8 June 1998 Judge T., one of the two judges at the District Court in Trenčín then dealing with criminal matters, informed the President of that court that she had a conflict of interest as she had earlier acted as a lawyer of the alleged victim and had had contact with the applicant and his wife. The judge stated that she agreed to her replacement by a different judge pursuant to Article 30 § 4 of the Code of Criminal Procedure. On 18 June 1998 Judge T. formally requested the Trenčín Regional Court to allow her to stand down. The Regional Court granted the request on 7 July 1998. The decision stated that Judge T. had asked to be allowed to stand down after the applicant's request for release was submitted to her for a decision.
27. In the meantime, on 13 June 1998, Judge Š., the other District Court judge involved in criminal matters, extended the period of detention of the applicant and four other accused until 19 December 1998. As regards the applicant, the decision stated that he had attempted to send a letter to his wife from the prison in secret. His wife had consulted the file on the premises of the Trenčín Regional Court without the prior consent of the public prosecutor or investigator and in the absence of the judge dealing with the case. There was a risk that the accused might interfere with witnesses and their co-accused or hamper the investigation into the case.
28. The applicant complained that the judge who had extended his detention on 13 June 1998 had not been entitled to deal with the case as by the time no decision had been taken on the request by the other judge to withdraw from the case.
29. On 22 September 1998 the General Prosecutor's Office found that the decision of 13 June 1998 to extend the applicant's detention had been taken in accordance with Article 71 § 1 of the Code of Criminal Procedure. The letter stated, inter alia, that the President of the Trenčín District Court had found no reason for proceeding pursuant to Article 30 § 4 of the Code of Criminal Procedure, and that the judge had therefore asked on 18 June 1998 to be allowed to stand down. The decision on the extension of the applicant's detention on remand and the decisions on the judge's request to withdraw were independent of each other and did not affect the merits of the case.
30. The Government submitted a statement made by the President of the Trenčín District Court on 16 January 2004 explaining that, at the relevant time, Judges T. and Š. dealt with all criminal matters. The public prosecutor's proposal to extend the detention of the applicant and his co-accused had been registered as a new matter in Judge Š's division in accordance with the work schedule for 1998 that had been issued by the President of the District Court. It had been allocated file number 4Tp 41/98. Judge Š. had ruled on the proposal on 13 June 1998.
As regards Judge T., the applicant's request for release had fallen to be examined by her. The file was registered under number 3Tp 42/98. Following Judge T.'s complete withdrawal from the criminal case concerning the applicant, the applicant's request for release had been assigned to Judge Š.
The practice had been to register separately all new submissions on which the District Court was required to decide at the pre-trial stage of the criminal proceedings against the applicant and his co-accused. As a result, different judges had determined various issues concerning the same accused.
31. On 26 July 1998 the Trenčín District Court dismissed the applicant's request for release for the reasons set out in its decisions of 20 December 1997 and 13 June 1998. The decision was taken in response to the applicant's complaint of 26 April 1998 to the General Prosecutor's Office about his detention. The complaint was treated as an application for release and was submitted to the Trenčín District Court on 5 June 1998 for decision.
32. On 11 August 1998 the applicant filed another request for release. Referringvarious witnesses, he claimed that there was no evidence against him. There was nothing to suggest that he had threatened the alleged victim. The content of the letter he had attempted to send to his wife from the prison was purely personal and had no bearing on the criminal proceedings. His wife had consulted the case-file in accordance with the relevant provisions of the Code of Criminal Procedure in the presence of two employees of the Regional Court.
33. The public prosecutor submitted the request to the Trenčín District Court on 28 August 1998, which dismissed it on 10 September 1998. The decision was served on 21 September 1998. It stated that the case was complex and that the available evidence indicated that the alleged victim's fear that the applicant might interfere with the witnesses in the event of his release was justified.
34. On 25 and 29 September 1998 the applicant filed a complaint in which he alleged that the investigation into the accusation against him had ended, that the witnesses had been heard and that there was no evidence that he had attempted to interfere with the witnesses or anybody else.
35. On 5 November 1998 the Trenčín Regional Court dismissed the applicant's complaint. The Regional Court held that the evidence taken did not weaken the suspicion that the applicant had committed the offence of which he was accused. The serious nature of the offence in question and the fact that it was likely that it had been committed by an organised group justified the conclusion that the applicant's continued detention was necessary within the meaning of Article 67 § 1(b) of the Code of Criminal Procedure. The file was returned to the District Court on 22 December 1998. The Regional Court's decision of 5 November 1998 was served on the applicant on 15 February 1999.
36. On 16 November 1998 the applicant requested the Regional Prosecutor's Office in Trenčín to deal with the charges against him and his wife in a separate set of proceedings pursuant to Article 23 § 1 of the Code of Criminal Procedure. He explained that several other charges against the other accused were being examined in the proceedings. As a result, there had been no progress in the investigation in respect of the accusation against the applicant for several months. There was no reason for his continued detention as the investigation into the accusation against him had ended in October 1998.
37. On 4 December 1998 the Trenčín District Court dismissed the applicant's request of 23 November 1998 for release. The judge found that the reasons for the applicant's detention on remand, as set out in the above decisions, were still relevant. The offences in question were serious and there was a suspicion that they had been committed in the context of organised crime. The decision was served on 15 December 1998.
38. On 9 February 1999 the Trenčín Regional Court dismissed a complaint filed by the applicant on 18 December 1998 against the District Court's decision. The Regional Court's decision was served on the applicant on 25 February 1999.
39. In the meantime, on 7 December 1998, the Trenčín District Court extended the detention of the applicant and four other accused until 9 June 1999. The decision stated that the case was complex and that several of those involved had been accused of further offences. Co-operation with the German authorities was necessary with a view to establishing the relevant facts. There was a risk that the accused would interfere with the witnesses or otherwise hamper the investigation into the case. The decision referred to the previous decisions on the detention of the accused. It contained no specific reasons on the need for the further detention of the applicant.
40. On 16 February 1999 the applicant filed another request for release. The public prosecutor submitted it to the Trenčín District Court on 3 March 1999. The District Court dismissed the request on 16 March 1999. The decision stated that one of the accused had been arrested in the Czech Republic and would be extradited to Slovakia. Further investigations needed to be carried out including investigations into the criminal activity of which the applicant had been accused. The decision became final on 26 March 1999.
41. In the meantime, on 25 March 1999, the applicant again applied for release. On 6 April 1999 the Regional Prosecutor's Office informed him that under Article 72 § 2 of the Code of Criminal Procedure he was not allowed to re-apply for release until fourteen days after the date the decision on his previous request had become final.
42. On 15 April 1999 the applicant filed a further application for release. He argued that there was no indication that he had been involved in the offences that were under examination.
43. The public prosecutor submitted the file with the application for release to the Trenčín District Court on 16 April 1999. On 20 April 1999 the District Court dismissed the request, holding that the applicant's continued detention was necessary within the meaning of Article 67 § 1(b) of the Code of Criminal Procedure.
44. On 26 April 1999 the applicant filed a complaint. He argued that the investigation into the case had ended. The file was submitted to the Trenčín Regional Court on 20 May 1999. The Regional Court dismissed the complaint on 10 June 1999.
45. In the meantime, on 11 May 1999, the applicant and his counsel examined the file. On 9 June 1999 the public prosecutor indicted the applicant, his wife and seven others before the Banská Bystrica Regional Court. The applicant and his wife were indicted on one count of extortion committed as members of an organised group. The indictment comprised nine other counts which did not concern the applicant or his wife.
46. On 23 June 1999 the Regional Court in Banská Bystrica dismissed a request by the applicant for release. On 30 June 1999 the applicant filed a complaint. He alleged that he had not threatened Mr R., the injured party, who in any event was abroad. There existed no relevant reason for his continued detention.
47. On 16 September 1999 the Regional Court in Banská Bystrica dismissed the applicant's further request for release. The decision referred to a statement by R. according to which the applicant had threatened him on 4 March 1997.
48. The applicant was released from custody on 19 December 1999. During his time in detention he had not been allowed any visits from his wife until 29 January 1999. Prior to that, on 6 May 1998, counsel for the applicant and his wife had requested that her clients be allowed to meet, if need be in the presence of the investigator. Reference was made to the suffering caused by the lengthy separation of the applicant from his wife and also to the fact that the investigation into the offences in issue had practically ended.
49. On 11 February 1999 the applicant's wife complained that her request for leave to visit the applicant on 24 February 1999 had not been accepted. She referred to a statement by the investigator of 15 January 1999 that he did not intend to carry out further questioning of the applicant or his wife.
50. On 28 January 2000 the Banská Bystrica Regional Court acquitted the applicant and his wife pursuant to Article 226(c) of the Code of Criminal Procedure, as it had not been shown that they had committed extortion. The court convicted seven other defendants.
51. On 7 February 2001 the Supreme Court quashed the relevant part of the Banská Bystrica Regional Court's judgment of 28 January 2000. The Supreme Court acquitted the applicant and his wife pursuant to Article 226(b) of the Code of Criminal Procedure, holding that their actions did not constitute an offence.
52. On 26 June 2002 the applicant and his wife sought damages from the State, as represented by the Ministry of Justice. They claimed compensation for the expenses they had incurred in the criminal proceedings. The applicant also claimed a specific sum in compensation for loss of income. He argued that a sum which the Ministry had paid to him earlier on that account had not been determined correctly. Finally, the applicant and his wife claimed 7,000,000 and 5,000,000 Slovakian korunas (SKK) respectively as compensation for non-pecuniary damage.
53. An initial decision by the District Court in Banská Bystrica was quashed by the Regional Court in Banská Bystrica on 30 April 2004. The Regional Court instructed the District Court to establish whether the plaintiffs were claiming compensation for damage under the State Liability Act of 1969 exclusively or whether they were also claiming compensation for non-pecuniary damage pursuant to Articles 11 et seq. of the Civil Code.
54. On 31 May 2005 the District Court in Banská Bystrica ordered the defendant to pay SKK 7,000,000 and 5,000,000 to the applicant and SKK 5,000,000 to his wife in compensation for damage of a non-pecuniary nature. That decision was based on Articles 11 et seq. of the Civil Code. With reference to the State Liability Act 1969, the District Court also ordered the defendant to pay SKK 67,464 plus default interest to the applicant in compensation for lost income as well as SKK 170,535 plus default interest in reimbursement of the costs and expenses the applicant had incurred in the criminal proceedings.
55. The Ministry appealed, arguing that the first-instance court had erroneously applied Articles 11 et seq. of the Civil Code, that the applicant had been prosecuted and tried in accordance with the relevant provisions of the criminal law, and that the impact of the criminal proceedings on him could not be qualified as an unjustified interference with his personal rights.
56. On 7 July 2006 the Regional Court in Banská Bystrica reversed the relevant part of the first-instance judgment. It took note of the applicant's arguments that the criminal proceedings had been unjustified and the decisions taken in those proceedings unlawful, that the applicant had been prohibited from meeting his wife and that his rights under the Convention had been violated. It summed up the Court's decision on the admissibility of the present application given on 4 November 2003. It also had regard to the documents included in the file concerning the criminal case against the applicant.
57. The Regional Court concluded that the applicant had not shown that the authorities involved in his criminal case had acted in an unlawful manner. In particular, as regards the entry of the police into the applicant's apartment on 17 December 1997, it noted that neither the applicant nor his wife had complained during their first interrogations on 17 and 19 December 1997. They had not submitted any evidence in support of that allegation. As regards the applicant's detention on remand, the Regional Court found that its length had not been excessive given the complexity of the case and the applicant's requests for release had been decided within a reasonable time.
58. Relying on the Supreme Court's judgment of 20 October 2005 in a different case (no. 5 Cdo 150/03), the Regional Court held that criminal proceedings conducted in compliance with the applicable law could not constitute unjustified interference with the accused's integrity even if they ended with his acquittal. The same applied to any other action taken by the competent authorities in respect of an accused in criminal proceedings. There had therefore been no unjustified interference with the applicant's rights under Articles 11 et seq. of the Civil Code.
59. The Regional Court went on to find, however, that the right of the applicant and his wife under Article 6 § 2 of the Convention to be presumed innocent had been violated in that public officials had made inappropriate statements about the case in the media. It ordered the Ministry to pay SKK 2,000,000 to the applicant and SKK 1,000,000 to the applicant's wife as compensation for non-pecuniary damage they had suffered as a result.
60. Article 23 § 1 provides that, with a view to expediting the proceedings or for other important reasons, proceedings concerning a particular offence or one of the accused may be conducted separately.
61. Under Article 30 § 4, where a judge whose impartiality is in question agrees to be replaced, the president of the court concerned may replace him or her by a different judge.
62. Pursuant to Article 67 § 1(b), an accused can only be remanded in custody when there are concrete grounds to believe that he or she will interfere with witnesses or the co-accused or otherwise hamper the investigation into the relevant facts of the case.
63. Article 72 § 2 entitles the accused to apply for release at any time. When the public prosecutor dismisses such an application in the course of pre-trial proceedings, he or she must submit it immediately to the court. The decision on an application for release must be taken without delay. If an application is dismissed, the accused may only renew it fourteen days after the decision has become final unless he or she invokes other reasons justifying his or her release.
64. The right to protection of a person's dignity, honour, reputation and good name is guaranteed by Articles 11 et seq. of the Civil Code.
65. According to Article 11, any natural person has the right to protection of his or her personality, in particular, his or her life and health, civil and human dignity, privacy, name and personal characteristics.
66. By virtue of Article 13 § 1, any natural person has the right to request an order restraining any unjustified infringement of his or her personal rights and remedying the consequences of such infringement, and to obtain appropriate satisfaction.
67. Article 13 § 2 provides that in cases where the satisfaction obtained under Article 13 § 1 is insufficient, in particular because the loss of dignity and social status has been considerable, the injured party is entitled to compensation for non-pecuniary damage.
68. Under section 8(1), police officers are under a duty to respect people's honour and dignity while carrying out their duties. They must avoid inflicting unjustified harm or interfering with a person's rights beyond what is necessary to achieve the aim of their action. Pursuant to paragraph 2 of section 8, when police action interferes with a person's rights or freedoms, the police must inform that person of his or her rights as soon as possible.
69. Section 29(1) permits the police to open and enter apartments and to take measures with a view to preventing a danger where, inter alia, a person's life is at risk or where the perpetrator of a serious offence is on the premises and fails to comply with an order to come out. Paragraph 3 of section 29 requires the presence of an impartial person during such action unless the life or health of the witness is in danger or the circumstances permit no delay.
70. Section 10 of the Detention on Remand Act 1993 (Zákon o výkone väzby), the legislation in force at the material time, provided, inter alia, that a person remanded in custody for reasons set out in Article 67 § 1(b) of the Code of Criminal Procedure could receive visits only with the prior written consent of the authority dealing with the case.
71. Section 1(1) of Act no. 58/1969 on the liability of the State for damage caused by a State organ's decision or by an erroneous official act (“the State Liability Act”) provided that the State was liable for damage caused by the unlawful decisions of a public authority.
72. Section 18(1) rendered the State liable for damage caused in the context of carrying out functions vested in public authorities resulting from erroneous official acts of persons entrusted with the exercise of those functions. An award of compensation could be made when the plaintiff showed that he or she had suffered damage as a result of an erroneous act of a public authority, quantified its amount, and showed that there was a causal link between the damage and the erroneous act in question.
73. Under the domestic courts' practice, the State Liability Act 1969 did not allow for compensation for non-pecuniary damage unless it was related to a deterioration in a person's health (for further details see Havala v. Slovakia (dec.), no. 47804/99, 13 September 2001).
VIOLATED_ARTICLES: 5
8
VIOLATED_PARAGRAPHS: 5-3
5-4
NON_VIOLATED_ARTICLES: 5
NON_VIOLATED_PARAGRAPHS: 5-1


ITEMID: 001-98140
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF LOTAREV v. UKRAINE
IMPORTANCE: 3
CONCLUSION: Preliminary objection dismissed;Preliminary objection joined to merits and dismissed (non-exhaustion of domestic remedies);Remainder inadmissible;Violation of Art. 3 (substantive aspect);Violation of Art. 3 (procedural aspect);Non-pecuniary damage - award
JUDGES: Mark Villiger;Mirjana Lazarova Trajkovska;Mykhaylo Buromenskiy;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva
TEXT: 5. The applicant was born in 1972 and is currently serving a sentence of life imprisonment in Zhytomyr no. 8 Prison (“the prison”).
6. In the morning of 9 June 2004 the wardens conducted a routine cell inspection and body searches of life prisoners. Following such an inspection in the applicant's cell an incident took place, the parties' accounts of which differ.
7. According to the applicant, he requested warden P. to clean up the mess left behind after the search, after which the latter handcuffed him, took him out into the corridor and repeatedly threw him against the walls until the applicant pushed him away in self-defence. At that point another warden, T., joined in the applicant's beating. Both wardens continued kicking and punching him even after he had been knocked on to the floor. Later the applicant was conveyed to the operational unit, where he was beaten again by wardens whose identities and number he was not able to establish. The applicant was left on the floor for several minutes, examined superficially by two medical assistants who found his condition to be satisfactory, and then taken back to his cell. Although he had a fever and was suffering from pain in the chest which severely constrained his movements, the applicant felt discouraged from seeking any medical assistance by what he perceived to be indifference and mockery on the part of the prison's medical staff.
8. As submitted by the Government with reference to the information provided by the prison administration, the applicant resisted being body-searched by warden P., using obscene language and attempting to hit the latter with his head. Although warned that force might be used against him if he resisted further, the applicant tried to kick officer P., who, in his turn, knocked him down using a martial art technique (sambo). The applicant was then convoyed to the prison's operational unit where he was held until he had calmed down.
9. On the same date warden P. completed a “Form regarding application to a prisoner (detainee) of handcuffs, straitjacket or other special measures”, in which he reported to the prison governor that he had used a sambo technique against the applicant caused by the latter's “physical resistance”. Two other wardens certified the form as accurate. The prison surgeon, in his turn, issued a report on the applicant's examination “following the usage of a sambo technique”, in which he noted that the applicant's condition was satisfactory with no pathology of the internal organs discovered, while the applicant himself had not raised any complaints.
10. According to the Government's submissions based on the domestic investigation materials, on 9 June 2004 the applicant was X-rayed with no bone fractures discovered. The applicant denied having been X-rayed before November 2004 (see paragraph 20 below).
11. On 15 June 2004 the prison governor disciplined the applicant for the incident of 9 June 2004 by way of a written reprimand.
12. On an unspecified date the applicant complained to the prison's medical unit of pain in the left part of his chest which worsened with a deep inhalation or sharp movement.
13. On 16 July 2004 the head of the prison's medical unit, a therapist, a surgeon and a radiographer examined the applicant and diagnosed him with “osteochondrosis”.
14. On 25 August 2004 the applicant's mother complained to the prosecution authorities that prison wardens had used unjustified force against her son.
15. On 17 September 2004 the investigator of the Zhytomyr Prosecutor's Office for Supervision of Compliance with the Legislation in Enforcement of Sentences (“the Zhytomyr Prosecutor's Office”) examined wardens P. and T., whose description of the events of 9 June 2004 was identical to that summarised in paragraphs 8 and 9 above.
16. On the same date the investigator issued a decision refusing to institute criminal proceedings against warden P. as there had been nothing criminal in his actions. It was based on a finding that force had been used against the applicant on the grounds and in the manner envisaged by the Internal Regulations of the Establishments for Enforcement of Sentences. The investigator also took into account the fact that the applicant had been examined by a doctor immediately after the incident, with no complaints received from him and no injuries discovered. It was further mentioned in the decision that the applicant had refused, with reference to Article 63 of the Constitution (absolving a person from any responsibility for refusing to testify or to explain anything about himself) to give any explanation as regards his disobedience of the legitimate orders of the prison administration on 9 June 2004.
17. On 28 October 2004 the Deputy Prosecutor of the Zhytomyr Prosecutor's Office quashed the above decision as not based on comprehensive investigation. Specifically, the investigator had wrongly dispensed with questioning the applicant's cellmate. He should also have identified and heard other prisoners who might have witnessed the incident. Lastly, no forensic medical examination of the applicant had been undertaken with a view to establishing the nature and gravity of his injuries.
18. On 4 November 2004 the investigator examined A., the inmate with whom the applicant shared a cell from April to July 2004, who stated that he knew the applicant as a calm and even-tempered person. A. described the events of 9 June 2004 as follows. Warden P. and his colleague conducted a search in the cell, which they left in a mess. The applicant made a remark to P., who advised him to officially complain to the prison administration if he wished to. The applicant, in his turn, addressed some obscene language to P., who then unlocked the cell and took the applicant out into the corridor. A. submitted that he had seen P. kicking the applicant once and punching him twice. After that the door to the cell was closed and he heard the sound of blows. The applicant returned about forty minutes later with the left part of his back bruised and his left ear injured.
19. On 12 November 2004 warden T., as well as another prison staff member, gave written statements concordant with those of P.
20. From 15 to 29 November 2004 the Zhytomyr Regional Bureau of Forensic Medical Examinations examined the applicant and studied his medical documentation at the investigator's instruction with a view to clarifying: whether there were any injuries on the applicant's body and what their origin was; as well as the date, the nature and the gravity of the injuries, should any be discovered. In the course of that examination the applicant was X-rayed on 15, 18 and 19 November 2004. According to him, that was his first X-ray since the incident of 9 June 2004. The experts discovered (in addition to some changes in the applicant's lungs characteristic of chronic tuberculosis) that he had a closed blunt chest injury and fractures of two ribs estimated to be of medium gravity and no older than two months. The possible date of the fractures was established on the basis of the appearance of the broken bones' edges on the X-ray film, which were only to a slight extent covered by callus (a connective tissue emerging on a bone at the site of a fracture and transforming into normal bone in approximately one year). The fractures had resulted from blows with blunt objects. As regards the X-ray film of 9 June 2004, which was among the applicant's medical documents, three radiographers participating in the examination concluded that it was impossible to identify it as belonging to the applicant, given that it was of low quality and did not mention his name.
21. On 2 December 2004 the Zhytomyr Prosecutor's Office again refused to institute criminal persecution of warden P. and the prison doctors (against whom the applicant and/or his mother had apparently also made complaints) having found that the elements of the crime had not been set out. In addition to the reasons given for the refusal on 17 September 2004 (see paragraph 16 above), the investigator referred to the medical report of 29 November 2004, according to which the applicant's injuries could not have dated back as far as to June 2004. While noting the statement given by the applicant's cellmate A. (summarised in paragraph 18 above), the investigator decided to treat it with scepticismprison administration”.
22. On 3 December 2004 the Zhytomyr Prosecutor's Office directed the prison governor to investigate the circumstances in which the applicant could have sustained the rib fractures which had been discovered during his medical examination in November.
23. In the course of the investigation subsequently undertaken the prison governor took written statements from eleven wardens who had been on duty at various times during August and September 2004. All of them stated that the applicant had never complained about anything and that there had been no fights or other incidents during their shifts.
24. On 8 December 2004 the prison administration issued a report about the applicant's refusal to give any explanation regarding the injuries supposedly sustained by him some two months before mid-November 2004.
25. On the same date the head of the prison medical unit issued a report, according to which the applicant had not addressed any complaint to the medical unit regarding his injuries.
26. In December 2004 (the date is illegible on the available copy) the prison governor issued a report finding no grounds to initiate criminal investigations into the infliction of the rib fractures on the applicant. He noted that the applicant had neither complained about those injuries nor explained their origin.
27. On 2 April 2005 the Zhytomyr Prosecutor's Office quashed the decision of 2 December 2004, finding that additional investigation was required. It noted that the investigation had failed to duly examine all the concerned staff of the prison. Neither had it clarified whether any force had been applied to the applicant when he was being convoyed from his cell to the operational unit and later in the operational unit. The applicant's cellmate A. had not been duly examined as regards the applicant's beating supposedly witnessed by him. While the medical examination established that the applicant had had two ribs broken, the circumstances in which he had sustained those injuries remained unknown. Furthermore, it had not been established whether the applicant had in fact been X-rayed on 9 June 2004 and whether that had been duly reflected in the documentation of the prison's medical unit. Lastly, the decision to refuse to institute criminal proceedings concerned only warden P., while the applicant alleged that he had been beaten up by several wardens.
28. On 12 April 2005 wardens P. and T. gave additional written statements. According to T., he had not participated in the applicant's convoying to the operational unit on 9 June 2004 and was therefore not aware whether any force had been applied to the applicant at that stage. As submitted by P., he had been among the wardens who had convoyed the applicant. He stated that he could give an assurance however that no force had been used.
29. On the same date the investigator examined the scene of the incident of 9 June 2004.
30. According to his report, also dated 12 April 2005, the applicant's cellmate at the material time, A., “unequivocally refused to give any explanations”.
31. On 13 April 2005 the investigator questioned another inmate, O., who had been sharing the cell with the applicant between 15 July and 15 August 2004. He contended to have noticed bruises on the applicant's face and on the left side of his torso as soon as he had been transferred to that cell. The applicant had told him that he had been beaten by wardens P. and T. on 9 June 2004. O. further submitted that he had not had any conflict with the applicant, and that during the period when they had been sharing the cell the applicant had not had any fights with anybody and had not fallen. Two other inmates who were held later in the same cell with the applicant refused to make any statements.
32. On 19 April 2005 another medical report was issued with a view to clarifying, at the prosecutor's request, whether the applicant could have sustained the fractures of his two ribs as a result of a fall or of being punched or kicked. The expert replied that the injuries could have been inflicted by punches, kicks or by other blunt objects, while he excluded any accidental fall as a plausible reason.
33. On the same date the Zhytomyr Prosecutor's Office issued a new decision refusing to institute criminal proceedings against wardens P. and T., as well as against the staff of the prison's medical unit, for lack of corpus delicti in their actions. In addition to the findings of the previous similar decisions (see paragraphs 16 and 21 above), the investigator mentioned the medical report of the same date (19 April 2005) and the statements of inmate O., without comment. Having repeatedly referred to the doctors' finding of 29 November 2004, the investigator concluded that it should be interpreted as refuting the applicant's allegation about his ill-treatment on 9 June 2004. He further noted that the applicant had had unfriendly relations with warden P. and therefore his allegations against the latter had to be taken with criticism.
34. The Government submitted to the Court a copy of a letter of the Zhytomyr Prosecutor's Office addressed to the applicant's mother and dated 20 April 2005, by which it informed her about the aforementioned decision, as well as that it was possible to challenge it with the Zhytomyr Regional Prosecutor's Office within seven days of receiving its copy (which would be sent to her if requested). The applicant and his mother denied ever having received that letter.
35. Following the communication of the application to the Government, Mr Bushchenko, the applicant's lawyer representing him in the proceedings before the Court, requested a private expert, Mr T. (Professor of the Criminology, Forensic Medicine and Psychiatry Department of the Kharkiv National University of the Interior, Ph.D. in medicine (кандидат медичних наук) and a forensic medical expert of the highest-qualified category according to the existing appraisal system) for an advisory opinion with a view to clarifying, in particular: what could have been the object, which had caused the fractures of the applicant's ribs; the probable date of the fractures; explanation of the absence of any visible injuries on the applicant's body during his examination by the prison's doctors; what illnesses the applicant was suffering from; and whether his tuberculosis and lengthy stay in prison could have delayed the fractures' healing process.
36. On 10 September 2009 the expert issued the requested advisory opinion, which was based on the applicant's medical documentation and contained the following findings: The fractures in issue could have been inflicted by a foot in a shoe or by another object with a short protrusion. Having regard to the statements given by the applicant's cellmates A. and O., the applicant's consistent complaints of pain in the left part of his chest and the nature of those complaints, as well as the poor quality of the applicant's X-ray film of 9 June 2004, it was not ruled out that the applicant could have sustained the fractures on 9 June 2004. As to the medical report of 29 November 2004, according to which those fractures could not have been inflicted more than two months before the last X-ray (15 and 18 November 2004), that conclusion was based on an assumption that a regular recovery process was being analysed, while the coalescence in the applicant's case could well have been retarded by his chronic tuberculosis (from which he was suffering, as was obvious from his X-rays), as well as by the fact that the prison conditions were not the most favourable for a quick recovery. In other words, the expert found it possible that while indeed under the normal circumstances the callus on the edges of the broken ribs had the appearance of being two months old, in the applicant's case it could have in fact been older (several months). Lastly, as regards the fact that the prison doctors who had examined the applicant shortly after the incident of 9 June 2004 had not seen any visible injuries on his body, the expert noted that it could have been explained by the “depth” of the haematomas, which could have become apparent with a delay.
37. In November 2001 the applicant was diagnosed with tuberculosis.
38. In March 2002 he considered himself to have fully recovered, attributing that to his faith. From then on he refused all treatment, for religious reasons, and complained to various authorities that his diagnosis was false. The doctors however considered that the applicant remained ill.
39. On 24 April 2002 the Bogunskyy District Court of Zhytomyr (“the Bogunskyy Court”) ordered the applicant to be treated forcibly for tuberculosis, which was apparently undertaken.
40. As discovered by a routine check in April 2005 and confirmed by control X-raying in July and September 2005, the disease reappeared. The applicant however again refused from any treatment for religious reasons.
41. On 6 April 2006 a commission of the Ministry of Health examined him and confirmed infiltrative tuberculosis of both lungs.
42. On 4 December 2006 the applicant was transferred for specialised treatment to Kherson no. 61 Prison, where he stayed till 21 February 2008, when his condition was found satisfactory.
43. According to his submissions to the Court, he had contracted tuberculosis anew at some point because of being forced to share cells (or wards) with inmates who were ill.
44. The applicant has been serving his sentence of life-term imprisonment in Zhytomyr no. 8 Prison since 5 October 2001, with exception of the period from 4 December 2006 to 21 February 2008 (see paragraph 42 above).
45. The cells in which the applicant was held fell short of meeting basic hygienic standards being dirty, damp and poorly ventilated. The situation deteriorated even more after the prison authorities had stopped providing prisoners with chlorine powder in summer 2005. The applicant had to whitewash and paint his cell at his own expense once in an attempt to improve its sanitary condition.
46. The medical wing of the prison, which was situated on the ground floor and where the applicant was placed occasionally, was often flooded with sewage and its walls were covered in mould. While staying there, he had to share a ward with another inmate suffering from tuberculosis, while he considered himself to have recovered from that disease. The ward lacked proper ventilation. The medical staff were not well qualified and lacked compassion. No medical assistance was provided when it was required, but was imposed on prisoners who did not need it.
47. The nutrition was insufficient and inadequate, while the prices of food in the prison shop were unreasonably high and the administration either refused to accept parcels of food for the applicant from his mother or kept them for themselves. There was a practice of adding bromine to food, adversely affecting the prisoners' cerebral cortex and sexual potency. While being treated for tuberculosis the applicant did not receive the required diet.
48. The cells for life prisoners underwent cosmetic repairs on the annual basis. Prisoners of this category are never involved in any repairing of the cells, which is the job of other prisoners assigned to the maintenance service of the prison. Life prisoners are transferred to a different cell twice a month. The cells in which they are held measure at least eight square metres and twenty-four cubic metres. They have natural ventilation and double window frames with ventilation panes. An assigned staff member disinfects once a week the cells of life prisoners who are under follow-up medical monitoring after recovery from tuberculosis. The prison does not have any shortages of disinfection materials, and the chlorine powder is never issued to prisoners.
49. The prison medical unit is staffed with highly-qualified doctors and assistants of various areas of specialisation. Namely, its staff includes: the chief of the medical unit, a therapist, a tuberculotherapist, a dermatovenerologist, a radiologist, a dentist, six medical assistants (фельдшери), a clinic laboratory assistant, an X-ray examination assistant, a pharmacist, and a disinfector. Some of the personnel are assigned qualification categories meaning that they have extensive work experience and positive theoretical and practical competence appraisals reaffirmed on a regular basis. Thus, the dermatovenerologist has the first qualification category, for which at least seven years' experience is required; the dentist and the clinic laboratory assistant have the highest qualification category assignable after at least ten years' experience; while the X-ray examination assistant and the pharmacist have the second qualification category (at least five years' experience). The medical assistants are occasionally seconded to the Zhytomyr ambulance station with a view to improving their skills. Pursuant to the accreditation certificate issued by the Ministry of Health on 22 March 2007, the medical unit has the right to carry out medical practice in the following areas: therapy, surgery, psychiatry, dermatovenereology, dentistry, radiology, phthisiology, and clinical laboratory diagnostics. The unit is fully equipped in compliance with applicable standards. Its premises, which are wet-cleaned and disinfected on a daily basis, are of satisfactory sanitary condition. The applicant never shared a cell or ward with prisoners with an active form of tuberculosis.
50. The food for prisoners is subjected to regular and strict control. A staff member of the medical unit and the deputy prison governor taste each meal after the cooking and certify its quality in a special logbook, that being a precondition for its distribution to prisoners. The food undergoes laboratory verification as regards its nutritional value and chemical composition twice a year. During the whole period of the applicant's stay in the prison there was not a single case of any deterioration of prisoners' health caused by inadequate quality of food. Prisoners with tuberculosis follow a special diet in the framework of the recurrence prevention programme twice a year. Thus, during the period from 1 March to 31 May, from 1 September to 30 November 2008, and from 1 March to 31 May 2009 the applicant received dietetic nutrition according to his medical condition and in compliance with the applicable regulations. The prices of food in the prison shop are within the limits set by the State Department for Enforcement of Sentences. In any event, the applicant never had any money on his prison account and never bought anything there.
51. The prison administration returned to the applicant's mother the parcel of food she had sent, which was received on 14 March 2002, as it had been sent less than six months following the previous one, while the applicant had only been entitled to two parcels per year at that time.
52. On 22 February 2005 the applicant's mother complained about the conditions of his detention and insufficient nutrition to the prison governor, who, in his turn, had a conversation with the applicant. According to the prison governor, the applicant did not complain about anything.
53. According to the applicant, the prison administration reviewed all his incoming and outgoing correspondence and did not dispatch any of his complaints to the authorities. It also delayed or reported lost some of his correspondence with his mother.
54. In May 2006 the applicant's mother complained to the State Department for Enforcement of Sentences of, inter alia, a failure of the prison authorities to dispatch the applicant's letters to various authorities.
55. On 18 August 2006 the Zhytomyr Regional Office of the Department found her allegation unsubstantiated, referring to a number of letters successfully sent by the applicant to the prosecution and other authorities in 2006.
56. On 3 August 2004 and 22 June 2005 the applicant's mother complained to the Court, on his behalf, about his alleged ill-treatment, health problems, conditions of detention, and alleged interferences of the prison administration with his correspondence.
57. On 6 July 2005 the Court received the application form signed by the applicant's mother. Enclosed to it there was a standard authority form distributed earlier by the Court Registry, which had been completed by the applicant's mother and signed both by her and the applicant and by which the latter authorised her to represent him in the proceedings before the Court. It did not state the date it had been issued.
58. On 16 August 2005 the Registry received a letter from the applicant, in which he referred to the number of his case file and reiterated the earlier submitted complaints. It was sent by his mother and contained additional notes written by her in the margins.
59. In September 2009 the applicant's lawyer submitted to the Court, inter alia, a copy of an informally worded letter of authority dated 29 August 2005, in which the applicant stated that he fully trusted his mother to represent his interests before any domestic or international authority, including the Strasbourg Court.
60. Article 106 of the Code on Enforcement of Sentences (2003) sets out rules governing the use of force in prisons. Prison officers are entitled to use force with a view to putting an end to physical resistance, violence, outrage (буйство) and opposition to lawful orders of the prison administration, or with a view to preventing prisoners from inflicting harm on themselves or on those around them. The use of force should be preceded by a warning if the circumstances so allow. If the use of force cannot be avoided, it should not exceed the level necessary for fulfilment by the officers of their duties, should be carried out so as to inflict as little injury as possible and should be followed by immediate medical assistance if necessary. Any use of force must be immediately reported to the prison governor.
61. The above rules are reiterated in paragraph 25 of the Internal Regulations of the Establishments for Enforcement of Sentences (2003). Paragraph 59 of the Regulations further specifies that prison officers are entitled to use force, including martial art techniques with a view to putting an end to wrongdoing by prisoners and overcoming their resistance to lawful orders of the administration when other means prove ineffective for the officers to be able to carry out their duties. The choice of a special measure to be used and its time and intensity depend on the circumstances, the nature of the wrongdoing and the personal characteristics of the perpetrator.
62. The relevant provisions of the Code of Criminal Procedure (1960) are summarised in Kats and Others v. Ukraine, no. 29971/04, §§ 76-80, 18 December 2008.
63. Pursuant to Article 117 of the Code on Enforcement of Sentences, prisoners suffering from contagious diseases who have not completed their medical treatment and refuse from it should be treated forcefully. A decision to that regard shall be taken by a court following a respective application from the prison administration.
64. Before it was amended on 28 December 2007, Article 151 of the Code on Enforcement of Sentences allowed life prisoners to receive no more than two parcels (packages) per year. After the aforementioned date that restriction was lifted.
65. The relevant extracts from the Report to the Ukrainian Government on the visit to Ukraine carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) from 24 November to 6 December 2002 [CPT/Inf (2004) 34] read as follows:
“94. In its report on the 2000 visit ..., the CPT stated that the treatment of prisoners serving life sentences was a major source of concern to the Committee, and it made a whole series of recommendations with a view to improving their situation.
The delegation's on-the-spot observations in 2002 in Zhytomyr Prison no. 8 ... confirmed that certain improvements have been made to material conditions and some aspects of the regime.
95. Material conditions of detention for these prisoners in Zhytomyr Prison No. 8 ... were acceptable. The cells were clean, properly lit and ventilated, equipped with beds with full bedding, a table, a stool and toilets that were partitioned off. The cells measured 6 to 10.2 m². They had all been originally designed for two prisoners, although sometimes they accommodated only one.
The CPT would stress that cells measuring 6 to 7 m² should, as a rule, be reserved for one prisoner (except in exceptional circumstances, where it is inadvisable to leave a prisoner alone). Cells measuring 10 m² could be considered acceptable for two people, provided the prisoners are able to spend a reasonable part of the day outside their cell. ...
96. The 2002 visit confirmed that life-sentenced prisoners may now receive two large parcels weighing 30 kg each a year and two small packets weighing 2 kg each a year; they may also buy supplies at the prison shop. It emerged, however, that the amount they could receive was much smaller than that which sentenced persons in the colonies could receive. In addition, for many of them, access to supplies from the prison shop was only theoretical since, because of lack of work, they did not earn any money. ...
105. In Prison No. 8, the delegation observed the practice of frequently moving life-sentenced prisoners ... to different cells. Life-sentenced prisoners changed cells within the section every week and changed floors every six months ....
The CPT has already dealt with this issue in ... its report on the 2000 visit, in which, while acknowledging that operational considerations might exceptionally require such measures, the Committee stressed that it was desirable to avoid, as far as possible, the needless uprooting of prisoners. The CPT recommends that the Ukrainian authorities review the policy of frequently moving prisoners to different cells in Prison No. 8 and, if necessary, in Ukraine's other penitentiary establishments, in the light of these considerations. ...
107. Prison No. 8 in Zhytomyr was built in 1914. With a capacity of 1,600 places, it was accommodating 1,199 prisoners at the time of the visit. ...
111. ... material conditions varied. Many of the cells visited, although modestly equipped, were properly maintained and clean. Others, however, had been damaged by damp and were dirtier, with toilets in relatively poor condition, rusty beds and very modest bedding infested with cockroaches and other vermin. ...
112. The prison administration made real efforts to provide those prisoners who needed them with basic essentials (hygiene and cleaning products and, if necessary, extra clothing/shoes). ...
118. In the establishments visited, the delegation received numerous complaints about restrictions on the number of parcels. The CPT notes that Section 41 of the Code on the Execution of Sentences provides for different entitlements in terms of the number of parcels per year, depending on the type of regime. ...
The CPT can understand that in certain penitentiary establishments there may be logistical, as well as security-related reasons for imposing a restriction on the number of parcels which can be received. However, this implies that the penitentiary administration is in a position to respond adequately to prisoners' fundamental needs (food, clothing, medication, etc.). The fact is that this is not yet the case, since economic problems are preventing it from meeting prisoners' basic needs. In the circumstances, the grounds for the restrictions should be reviewed. Indeed, some countries faced with a similar situation have granted prisoners the right to receive an unlimited number of parcels.
The CPT recommends that the Ukrainian authorities review the provisions of the Code on Execution of Sentences and of the law governing detention on remand in respect of the entitlement to receive parcels, in the light of the above remarks. ...
194. A number of improvements had been made to the material conditions of detention and some aspects of the regime applicable to life-sentenced prisoners. While welcoming this progress, the CPT stressed the need to give a high priority to the introduction of a proper prison management policy for these prisoners. ...
195. With regard to material conditions of detention, the CPT recommended that in Prison No. 8 the necessary repairs be carried out to building No. 1 so that the material conditions equalled those in building No. 2, reserved for women and minors, in all respects. ...
197. With regard to health care, the CPT welcomed the progress that had been made in combating tuberculosis, in terms of a decrease in the number of prisoners suffering from tuberculosis and the fall in the number of deaths due to the disease. Substantial efforts had also been made to ensure that penitentiary establishments were provided with sufficient quantities of appropriate medication for the treatment of the disease. Progress was, however, slower with regard to the standard of food for prisoners suffering from tuberculosis, because of the limited resources of the prison administration. The CPT recommended sparing no effort in ensuring that the measures adopted to combat tuberculosis were fully implemented and giving a high priority to the implementation of the nutritional programme for prisoners suffering from the disease. ...”
VIOLATED_ARTICLES: 3


ITEMID: 001-108436
LANGUAGEISOCODE: ENG
RESPONDENT: NLD
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF G.R. v. THE NETHERLANDS
IMPORTANCE: 3
CONCLUSION: Violation of Article 13+8 - Right to an effective remedy (Article 13 - Effective remedy) (Article 8 - Right to respect for private and family life;Article 8-1 - Respect for family life)
JUDGES: Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Ján Šikuta;Josep Casadevall;Kristina Pardalos;Nona Tsotsoria
TEXT: 5. The applicant was born in 1961. He is married; he and his wife (born in 1968) have three children, born in 1992, 1993 and 1998 respectively. The family are resident in Zoetermeer.
6. On 8 December 1997 the applicant arrived in the Netherlands, five months after his wife and two children had arrived there. On 10 December 1997 the applicant applied for asylum. The Deputy Minister of Justice (Staatssecretaris van Justitie) rejected this application on 19 February 1999 but he did grant the applicant a conditional residence permit (voorwaardelijke vergunning tot verblijf), valid as of 10 December 1997, on the basis of a temporary “policy of protection for certain categories” (categoriaal beschermingsbeleid). The applicant’s wife and children received residence permits for the purpose of asylum that same day. The applicant lodged an objection against the decision to refuse him asylum.
7. The situation in Afghanistan not having sufficiently improved, the applicant’s conditional residence permit was ex lege converted into an indefinite residence permit after he had held it for a period of three years. Subsequently, with the entry into force of the Aliens Act 2000 (Vreemdelingenwet 2000) on 1 April 2001, the permit held by the applicant came to be named an indefinite residence permit for the purpose of asylum. In view of this development, the applicant’s objection against the decision of 19 February 1999 was declared inadmissible on 16 July 2001.
8. On 28 May 2004 the Minister for Immigration and Integration (Minister voor Vreemdelingenzaken en Integratie, at that time the successor to the Deputy Minister of Justice) withdrew the applicant’s residence permit (but not those of his wife and children) as Article 1F of the 1951 UN Convention relating to the Status of Refugees was held against him. The applicant filed an appeal against this decision which was rejected by the Regional Court (rechtbank) of The Hague on 29 March 2005. On 4 August 2005 the Administrative Jurisdiction Division of the Council of State (Afdeling Bestuursrechtspraak van de Raad van State) confirmed the decision of the Regional Court at final instance.
9. The applicant’s wife and children were granted Netherlands nationality on 13 December 2004.
10. On 21 October 2005 the applicant filed a new application for asylum, which was rejected by the Minister on 27 October 2005. The applicant’s appeal was dismissed by the Regional Court of The Hague on 17 November 2005, and on 22 December 2005 the Administrative Jurisdiction Division of the Council of State dismissed the applicant’s appeal at final instance.
11. Subsequently, on 9 January 2006, the applicant applied for a residence permit for the purpose of residing in the Netherlands with his wife. At the same time, he requested an exemption from the obligation to pay the statutory administrative charges (leges) of 830 euros (EUR). In this respect he invoked Decision 2005/46 amending the Aliens Act Implementation Guidelines 2000 (Wijzigingsbesluit Vreemdelingencirculaire 2000), according to which an alien who has a justifiable claim under Article 8 of the Convention in proceedings to obtain a residence permit for the purposes of family reunion (gezinshereniging) or family formation (gezinsvorming) could be exempted from paying the required charges if he or she complied with certain conditions. The applicant argued that he had a legitimate claim under Article 8 and that he had provided sufficient proof that he did not have the resources to pay the charges: since the withdrawal of his residence permit he himself was no longer eligible for social assistance and his family had to survive on social assistance intended for a single-parent family. There were no relatives or third persons prepared or able to pay the charges for him. He submitted a copy of his wife’s social assistance pay slip for the month of December 2005 (stating a total payable amount of EUR 988.71), an official extract from the register of marriages dated 29 December 2005 showing him to be married to his wife, and an official document showing him, his wife and their children to be registered at the same address.
12. On 23 March 2006 the Minister decided not to process the application for a residence permit, as the applicant had failed to pay the required charge.
13. The applicant lodged an objection with the Minister against that decision, arguing that he had submitted a reasoned request to be exempted from the obligation to pay the administrative charge, which request the Minister had rejected without stating any grounds. On 31 March 2006 the applicant also applied for a provisional measure (voorlopige voorziening) to the Regional Court of The Hague in order to be allowed to await the outcome of his appeal in the Netherlands.
14. On 27 March 2007 the Regional Court rejected the request for a provisional measure and at the same time dismissed the objection. It considered that the applicant had failed to submit sufficient proof of his lack of resources to pay the required fees; it had therefore not been unreasonable for the Minister to decide not to process the applicant’s request for a residence permit.
15. No appeal lay against the judgment of the Regional Court.
16. On 11 January 2008, in reply to questions put to them pursuant to Rule 49 § 3 (a) of the Rules of Court, the Government confirmed that, at the time the applicant lodged his request for a residence permit for the purpose of residing with his wife, the latter was in receipt of social assistance benefits for a single-parent family. They further confirmed that the applicant was not in possession of a residence permit entitling him to acquire income by working in the Netherlands. He had nevertheless not qualified for the exemption from the obligation to pay administrative charges as he had submitted neither the required declaration of income and assets nor evidence relating to efforts made by his wife (being the residence permit holder with whom the applicant intended to stay) to obtain the necessary funds.
17. In reply to a further question, the Government submitted on 28 May 2008 that the assessment framework for an objection against the decision not to process an application for a residence permit due to a failure to pay the administrative charges was based on an ex tunc evaluation of whether that decision had been taken on reasonable grounds. Paying the administrative charges or submitting the required evidence subsequently was not an option; nor would it have any bearing on the decision not to process the application, as an ex nunc assessment was no longer possible.
18. On 21 July 2008, in response to a further question, the Government confirmed that the applicant could submit a new application for a residence permit, which would be processed once he had paid the administrative charges or obtained an exemption from the obligation to pay them. The examination of the merits of such an application would include an assessment of compliance with Article 8 of the Convention.
19. Section 4.1.2 of Chapter B1 of the Aliens Act Implementation Guidelines 2000 (Vreemdelingencirculaire 2000), as applicable at the relevant time, stated that if an applicant for a residence permit claimed to be unable to pay administrative charges, that inability must be substantiated. The following documents should then be submitted with the application:
a. a statement of income and assets relating to the residence permit holder with whom the alien intended to stay;
b. evidence relating to efforts on the part of the alien and the residence permit holder over the previous three years to obtain funds;
c. documents establishing a plausible case for the fact that neither the alien nor the residence permit holder would be able in the short term to obtain the funds necessary to pay the administrative charges that were owed, and that obtaining the funds from a family member or third party was likewise impossible.
20. Day-to-day implementation of the Work and Social Assistance Act, including the providing of social assistance and any verification, is the responsibility of the Mayor and Aldermen (burgemeester en wethouders) of the municipality (section 7 (1)).
21. An entitlement to social assistance exists for every Netherlands national and every alien lawfully resident in the Netherlands if he or she has not the means to meet necessary living expenses (section 11(1) and (2)). A married couple in such a position are jointly entitled to such social assistance, unless one of the parties is not so entitled (section 11(4)); in the latter event, the other party is entitled to social assistance in the amount applicable to a single person living alone or a single-parent family as the case may be (section 24).
22. Persons in receipt of social assistance are obliged to make demonstrable efforts to obtain and take up generally accepted employment, and to co-operate with the Mayor and Aldermen in any attempts aimed at finding them such employment (section 9(1) and (2); see also Schuitemaker v. the Netherlands (dec.), no. 15906/08, 4 May 2010).
23. Persons seeking or receiving social assistance under this Act must inform the Mayor and Aldermen, on their own initiative or when so required, of all facts and circumstances that may reasonably be expected to influence inter alia their entitlement to social assistance; except in so far as such facts and circumstances can be established on the basis of certain authentic or official information (section 17(1)).
24. Social assistance paid in excess of entitlement may be recovered from the recipient (section 58(1)). In cases where another person is liable to support the recipient financially, the Mayor and Alderman may recover moneys paid by way of social assistance from that person (sections 60-62i).
25. Certain official and private institutions and persons are legally obliged to provide information to the Mayor and Aldermen when so required. These include, among others, the tax authorities; landlords; pension funds; chambers of commerce; health insurance providers; heads of police; suppliers of water and energy; and the registrars of the courts (section 64 (1) and (4)).
VIOLATED_ARTICLES: 13
8
VIOLATED_PARAGRAPHS: 8-1