ITEMID: 001-107282
LANGUAGEISOCODE: ENG
RESPONDENT: SRB
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF ŠORGIĆ v. SERBIA
IMPORTANCE: 3
CONCLUSION: No violation of Art. 6-1;Violation of Art. 6-1;Non-pecuniary damage - claim dismissed
JUDGES: András Sajó;David Thór Björgvinsson;Françoise Tulkens;Guido Raimondi;Paulo Pinto De Albuquerque
TEXT: 5. The applicant was born in 1962 and lives in Sopot, Serbia.
6. The relevant facts of the case, as submitted by the parties, may be summarised as follows.
7. On 22 May 1995 an inheritance-related case (ostavinski postupak) was instituted before the Fifth Municipal Court in Belgrade. The applicant was only one of the parties formally involved.
8. On 14 June 1995 the Fifth Municipal Court suspended the proceedings since one of the heirs had contested the validity of a life-long support contract (ugovor o doživotnom izdržavanju) concerning the deceased’s flat. The inheritance proceedings were to be resumed once this issue had been resolved in a separate civil suit.
9. The deceased’s wife subsequently brought a number of cases against the applicant, the deceased’s son, who had concluded the said life-long support contract with his father (see paragraphs 15-33 below).
10. On 14 June 2000 and in view of the judgment adopted on 2 March 1999 (see paragraphs 15-17 below), the applicant requested that the inheritance proceedings be terminated given that there remained no estate to be divided between the heirs.
11. On 15 April 2010 and in view of the decisions adopted on 13 August 2001 and 20 April 2006 (see paragraphs 19, 20 and 25 below), the deceased’s wife requested that the inheritance proceedings be continued.
12. The applicant apparently opposed this motion, stating that the relevant parallel proceedings were still pending (see paragraphs 18-33 below).
13. On 7 September 2010 the inheritance proceedings resumed, but the hearing of the same date was adjourned due to the failure of the deceased’s wife to appear before the court.
14. The next hearing was scheduled for 21 February 2011. This hearing, however, was also adjourned, this time in order for the court to obtain additional information about the estate. The applicant, it seems, did not appear at this hearing.
15. On 20 September 1995 the deceased’s wife filed a claim against the applicant with the Fifth Municipal Court. She sought that the life-long support contract be declared fictitious (fiktivan).
16. On 2 March 1999 the Fifth Municipal Court ruled against the plaintiff, partly based on the “inadequately” specified cause of action.
17. Having been upheld on appeal, by 25 January 2000 this judgment became final.
18. On 15 August 2000 the deceased’s wife brought another claim against the applicant before the Fifth Municipal Court. She outlined the relevant facts and sought that the life-long support contract be partly annulled (poništen) and partly cancelled (raskinut).
19. On 25 December 2000 the Fifth Municipal Court adopted a partial judgement against the applicant (doneo delimičnu presudu). In so doing, it stated that one half of a disputed flat belonged to the plaintiff as the deceased’s spouse, and that the corresponding part of the life-long support contract was therefore to be deemed null and void. The presiding judge in the case was judge B.
20. On 13 August 2001 the District Court in Belgrade confirmed this judgment on appeal and it thereby became final. The appeal bench included judge D.
21. On 17 June 2003 the Fifth Municipal Court cancelled the remainder of the above contract, noting that the applicant had not been fulfilling his contractual obligations properly.
22. On 24 March 2004 the District Court in Belgrade quashed this judgment in view of the incoherence between its operative provisions and its reasoning. It did not, however, offer any guidance in terms of the desired outcome of the plaintiff’s remaining claim on its merits. The appeal bench included judges D and B.
23. On 21 January 2005 the Fifth Municipal Court again cancelled the remainder of the contract in question.
24. On 31 August 2005 the District Court in Belgrade confirmed this decision on appeal, and it thereby became final.
25. On 20 April 2006 the Supreme Court rejected the applicant’s appeal on points of law (revizija), reasoning that the applicant had not been complying with his contractual obligations. The Supreme Court’s bench included judge D.
26. On 12 July 2006 the applicant filed a request for the reopening of the above proceedings (predlog za ponavljanje postupka), which request, inter alia, referred to the unlawful composition of the courts on 24 March 2004 and 20 April 2006.
27. On 20 September 2006 the Fifth Municipal Court rejected the applicant’s request as inadmissible (odbacio predlog), applying the Civil Procedure Act 2004 (see Article 422 at paragraph 44 below).
28. On 9 October 2006 the applicant filed a request for the protection of legality (zahtev za zaštitu zakonitosti) with the Supreme Court.
29. On 16 October 2006 the Fifth Municipal Court informed the applicant that his request for the protection of legality would not be considered until a final decision had been adopted in respect of his request for reopening.
30. On 2 July 2008 the District Court in Belgrade quashed the Fifth Municipal Court’s decision of 20 September 2006 on appeal, noting that the applicable legislation was the Civil Procedure Act 1977 (see Articles 421.1 and 71.5 at paragraphs 40 and 36 below, in that order).
31. On 3 December 2008 the Fifth Municipal Court again rejected the applicant’s request for reopening as inadmissible. In particular, it applied the Civil Procedure Act 2004 and noted, inter alia, that the said legislation, unlike the Civil Procedure Act 1977, did not provide for reopening in cases where the composition of the courts was not in accordance with the law.
32. On an unspecified date thereafter the applicant appealed against this decision.
33. On 28 April 2010 the High Court in Belgrade, now acting as the court of second instance in the former District Court’s stead, quashed the impugned decision and ordered the court of first instance to re-examine the applicant’s request. The High Court described the impugned decision’s reasoning as incoherent, and reaffirmed that the applicable legislation was the Civil Procedure Act 1977.
34. On 22 May 2008 the Constitutional Court rejected as inadmissible the applicant’s appeal (ustavna žalba) lodged against the Fifth Municipal Court’s, the District Court’s and the Supreme Court’s decisions of 21 January 2005, 31 August 2005 and 20 April 2006, respectively. In so doing, it explained that all were rendered prior to the adoption of the new Serbian Constitution in November 2006.
35. On an unspecified date the applicant apparently lodged a further constitutional appeal concerning the fairness and length of the proceedings initiated on the basis of his request for reopening.
36. Article 71.5 provides, inter alia, that a judge may not sit in a case where he or she has already taken part in its adjudication before a lower court.
37. Article 72 § 1 provides that as soon as a judge discovers this ground for recusal, he or she must cease dealing with the case and request the president of the court to appoint another judge in his or her stead.
38. Articles 354 § 2 (1) and 365 § 2, inter alia, list a breach of Article 71.5 as a ground for appeal which, even if not specifically relied on by the appellant, shall be taken into account by the appeals court ex officio.
39. Articles 382 § 1, 383 and 400 § 1 provide that parties to a case may file an appeal on points of law (revizija) with the Supreme Court. They may, however, only do so against a final judgment or decision resulting in the termination of a lawsuit at second instance. Articles 385 § 1 (1) and 386 further specify that an appeal on points of law may be lodged if the composition of the lower courts was not in accordance with Article 71.5, but do not specify that this ground shall be taken into account by the Supreme Court ex officio.
40. Article 421.1, read in conjunction with Articles 427 and 428, provides that a case concluded by means of a final court decision shall be reopened, at the request of one of the parties, if Article 71.5 has not been complied with.
41. In 1987 and 1995, respectively, the Federal Court clarified that under Article 71.5 a judge could only be excluded from deciding on a remedy lodged against the very decision in whose adoption he or she had already participated. This provision, however, does not preclude a judge from sitting in a case in any other situation, including where he or she had otherwise taken part in its adjudication before a lower court (Gzs. 50/87 and Gzs. 36/95).
42. The substance of Articles 66 § 1 (6), 67 § 1, 361 § 2 (1), 372 § 2, 394 § 1, 396, 398 § 1 (1), 399 and 412 § 1 of the Civil Procedure Act 2004 essentially corresponds to the substance of the aforementioned Articles 71.5, 72 § 1, 73 § 1, 354 § 2 (1), 365 § 2, 382 § 1, 383, 385 § 1 (1), 386 and 400 § 1 of the Civil Procedure Act 1977.
43. Articles 378 and 411 provide, inter alia, that second and third instance courts may remit a case either to the same judge/panel which had already taken part in the adoption of the impugned decision or to another judge/panel of the same court.
44. Article 412 § 4 provides that an appeal on points of law may also be filed where a request for the reopening of proceedings has already been decided upon at second instance.
45. Article 422 of the Civil Procedure Act 2004 does not provide that a case concluded by means of a final court decision may be reopened if the composition of the courts was not in accordance with Article 66 § 1 (6), which provision, as noted above, essentially corresponds to Article 71.5 of the Civil Procedure Act 1977.
46. The Civil Procedure Act 2004 entered into force on 23 February 2005, thereby repealing the Civil Procedure Act 1977.
47. Article 491 § 1 of the Civil Procedure Act 2004, however, provides that the Civil Procedure Act 1977 shall be applied to all cases where first instance proceedings have been concluded prior to 23 February 2005. Article 491 § 4 of the Civil Procedure Act 2004 further provides that in all cases which were brought before the said date the applicable legislation, as regards an appeal on points of law, shall be the legislation which was in force at the relevant time.
48. Articles 24 and 121 provide, inter alia, that should a legal heir of the deceased raise an issue in respect of what comprises the latter’s estate, the inheritance court shall instruct him or her to initiate a separate civil suit and suspend the inheritance proceedings pending its final outcome (do pravosnažnosti).
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-23607
LANGUAGEISOCODE: ENG
RESPONDENT: SWE
BRANCH: ADMISSIBILITY
DATE: 2003
DOCNAME: EKELUND v. SWEDEN
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant, Mr. Hans-Olof Ekelund, is a Swedish national, who was born in 1948 and lives in Höllviken, Sweden.
The facts of the case, as submitted by the applicant, may be summarised as follows.
It appears that the applicant was detained on remand for two days between 3 and 5 December 1997. He was later charged with aggravated fraud (grovt bedrägeri) and complicity in aggravated fraudulent behaviour towards creditors (grov oredlighet mot borgenärer). The indictment was brought by the chief prosecutor at the Economic Crimes Bureau (ekobrottsmyndigheten) in Malmö.
The District Court (tingsrätten) of Malmö heard the case, which also involved charges against two co-accused, during 13 days between 15 January and 16 February 1998. The court heard 15 witnesses and the parties submitted a considerable amount of written evidence. In hearing the case, the District Court was composed of one professional judge and four lay assessors (nämndemän).
Delivery of judgment was delayed on several occasions due to illness or a heavy workload. Eventually, by a judgment of 5 May 1998, the District Court found the applicant guilty of attempted aggravated fraud and complicity in aggravated fraudulent behaviour towards creditors and sentenced him to one and a half year’s imprisonment. However, the prosecutor’s request that the applicant be prohibited from running a consulting business (förbud att bedriva rådgivningsverksamhet) was rejected.
Upon appeal, the Court of Appeal (hovrätten) of Skåne and Blekinge heard the case during 12 days between 1 and 29 March 1999. On the first day of the hearing, the applicant joined the objection made by one of the co-accused that the hearing should be suspended as a person suspected of complicity in the crimes in question was absent and thus could not be heard by the Court of Appeal. By a decision of the same day, the appellate court decided that the absence of this person did not constitute an obstacle to the continuation of the hearing. It took into account that there had been no contact with this person for a long time and that, despite the efforts to find him, his whereabouts were still unknown. It considered therefore that there was no reason to believe that he would be found in the foreseeable future.
On 23 April 1999 the Court of Appeal rendered its judgment. It upheld the conviction for aggravated fraudulent behaviour towards creditors but acquitted the applicant of the charge of aggravated fraud. The prison sentence remained unchanged. Moreover, the Court of Appeal decided to prohibit the applicant from running a consulting business for three years. It had regard to the oral and written evidence presented to it and did not base any part of its assessment on statements made by the person who could not be heard during the hearing.
On 3 January 2000 the Supreme Court (Högsta domstolen) refused leave to appeal.
The criminal proceedings against the applicant and the co-accused attracted interest from the media, and the public prosecutor and the applicant’s lawyer made statements to the press in regard to the proceedings.
As from October 1998 a criminal investigation, lead by the Public Prosecutor’s Office in Helsingborg, was carried out concerning the District Court judge who had presided in the applicant’s case. Due to the investigation, the judge was suspended from his work in February 1999. He later resigned from his duties at the District Court. On 7 June 1999 the District Court of Lund convicted him of breach of trust (trolöshet mot huvudman), consisting of embezzlement of assets belonging to his aunt during the period of November 1995 – May 1998. He was given a suspended sentence.
The applicant subsequently filed complaints with the police and the Chancellor of Justice (Justitiekanslern), claiming that the District Court judge should not have dealt with his case since the judge had been involved in criminal activities. In the applicant’s view, this had affected his trial by, for instance, delaying the delivery of the District Court judgment. By decisions of 3 and 23 September 1999, respectively, neither the Chancellor of Justice nor the Prosecutor-General (Riksåklagaren) found reason to take action in the matter.


ITEMID: 001-80932
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF BOTMEH AND ALAMI v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: No violation of Art. 6
JUDGES: Josep Casadevall;Nicolas Bratza
TEXT: 5. The applicants were born in 1967 and 1965 respectively and, prior to their sentences of imprisonment, lived in Rugby.
6. On 26 July 1994 a car-bomb exploded outside the Israeli Embassy in London and the following morning a second bomb went off outside the headquarters of a Jewish organisation, also in London.
7. The applicants and two others (subsequently acquitted) were arrested and charged with having participated in the conspiracy to make, place, and detonate these bombs. Ms Alami was a chemical engineer who admitted possessing other explosive devices and relevant literature. Mr Botmeh was an engineer who was alleged to have procured the two cars in which the bombs were delivered, and a large amount of TATP explosive (of a different type to that used in the two bombs) was found in a lock-up rented by him. The Crown's case was that both were members of, or sympathisers with, the Popular Front for the Liberation of Palestine (PFLP) but, being dissatisfied with official policy, had become part of a breakaway English group. In evidence before the jury at trial, both appellants denied any involvement in the bombings but admitted having carried out experiments with TATP and model aircraft. The sole purpose, they said, was to develop and test techniques which could be used not in this country, but in the Occupied Territories. Both condemned the bombings, regarding them as short-sighted. They alleged that a Palestinian known to them as “Reeda”, whom they were unable further to identify, had supplied the TATP found in the lock-up and accompanied Mr Botmeh to buy cars at auction. “Reeda” was not mentioned by either applicant in the course of the police interviews, and his name came up for the first time during Mr Botmeh's evidence-in-chief. The Crown, pursuant to its duty to review disclosure during the trial, unsuccessfully tried to find evidence confirming his existence.
8. Although the trial judge, following ex parte proceedings, ruled that certain documents should not be disclosed to the defence on grounds of public interest immunity, some intelligence information was disclosed before the trial, including material indicating that the bombs had been planted by an Iranian-backed terrorist organisation. This possibility was mentioned by the judge in his summing-up to the jury, as follows:
“Unless the bombs were the work of Iranian backed Hezbollah, who were named at one time by the media, although there was no evidence that they ever claimed responsibility or were, in fact, involved, we have to look elsewhere and ask whether these defendants were part of some breakaway group or faction and whether what they have said about their views and attitudes is, in fact, true. ...
The question is, for you, did these three defendants, and almost certainly one or more people unknown to us, form their own English group rejecting the PLO, Fatta, PFLP non-violent policy and decide to paint the name of Palestine on the mountain again? Or was it an Islamic fundamentalist group with which these applicants have no connection seeking to damage Israel and, at the same time, to discredit the PLO? These are the things that we have to think about. ...”
9. On 11 December 1996 both applicants were convicted and on 16 December 1996 they were sentenced to twenty years' imprisonment and recommended for deportation. They lodged appeals against conviction and sentence.
10. On 4 November 1997, eleven months after the conclusion of the trial, the applicant's solicitors drew the attention of the Crown Prosecution Service to a press article quoting a former intelligence officer, David Shayler, who declared that the United Kingdom's intelligence agency, MI5, had been warned by a reliable source prior to the embassy bombing that such an attack was imminent, but that the information had not been passed to the police. They requested the details of the warning and an interview with the “reliable source”.
11. On 6 April 1998 the Crown Prosecution Service replied, indicating that an ex parte application was to be made to the Court of Appeal, on notice, in relation to the information relevant to the disclosure request which had been made.
12. On 8 May 1998 the Home Secretary signed a public interest immunity certificate in respect of a bundle of documents, confirming that these documents “concerned the part played by the Security Service in events prior to the prosecution of the defendants” and that they “pass the threshold test for disclosure in the criminal proceedings against the applicants” (in other words, that they were relevant to the issues raised on appeal).
13. In March 1999, before granting leave to appeal, a division of the Court of Appeal (which did not include any of the judges who were later to preside over the substantive appeal) held an ex parte hearing to consider the material which the Crown sought to withhold pursuant to the Secretary of State's certificate, and which the Crown conceded had not been placed before the trial judge prior to, or during, the trial.
14. The same division of the Court of Appeal subsequently considered the applicants' oral application for leave to appeal, where it was submitted that the ex parte hearing which had already taken place was incompatible with Article 6 of the Convention. On 3 May 1999, the Court of Appeal granted leave to appeal against conviction on grounds relating to the lack of full disclosure.
15. On 23 September 1999 the defence served a further formal request for disclosure. In a letter dated 31 March 2000 the prosecution replied to the defence request, setting out the approach it had adopted to the disclosure of unused material and confirming its intention to make a further ex parte application to the Court of Appeal following inter partes submissions on the procedure to be followed. The letter indicated that the category into which the material appended to the Secretary of State's certificate was said to fall was “agent material”.
16. The substantive appeal was first listed for hearing on 24 October 2000. It began with inter partes submissions on the procedure to be followed. On behalf of the applicants it was submitted that it would be inconsistent with Article 6 of the Convention for the Court of Appeal to sit ex parte to consider material which had not been placed before the trial judge and then uphold a claim for public interest immunity and dismiss the appeal. The Court of Appeal invited the applicants' counsel to examine the material in question, subject to an undertaking not to disclose its contents to the applicants. After taking the advice of his professional association, counsel informed that court that no such undertaking could be given.
17. The Court of Appeal then concluded that it should view the material ex parte and rule on the claim for public interest immunity. Having done so, on 26 October 2000 it ordered the following summary of the undisclosed evidence to be released to the applicants and their representatives, but declined to order any further disclosure of the material in question:
“Some months prior to the bombing of the Israeli Embassy in London on 26/7/94, the Security Service and MPSB [Metropolitan Police Special Branch] had received information from an agent source that a terrorist organisation, unconnected to these appellants, was seeking information about the location and defences of the Israeli Embassy in London for a possible bombing attack.
The Security Service and MPSB information was that such information regarding the Embassy was not provided to the terrorist organisation.
Related intelligence received after the bombing attack indicated that the terrorist organisation had not, in fact, carried out the bombing.
In relation to the Security Service the document containing the information was disseminated within the Security Service. However the particular document, for reasons of human error, was not placed on files subsequently shown to Counsel during the disclosure exercise.
Other documents from the same source were placed before Counsel. Two of these other documents, both later in time than the original, were very similar. One of those documents contained a short reference to the information referred to above. Through oversight, of the two documents, the one not referring to the information was placed before [the trial judge] during the disclosure hearing.
Following publicity in 1997 ensuing from the allegations of Mr Shayler, the Security Service papers were reviewed. The particular document was located on a file not seen by Counsel. The Security Service took immediate steps to bring the document to the attention of the CPS [Crown Prosecution Service] and Counsel.
Regarding the SIS (MI6), with regard to the document received by the Security Service, a copy was passed by the Security Service to SIS. This was handled by the desk officer dealing with the terrorist group in question. This was not the same officer who was handling the CPS request for disclosure. The information was filed by the desk officer in a file containing information from the same source. The information did not emerge in the disclosure exercise carried out by SIS through human error.
In relation to MPSB, the document recording the information was placed on a file germane to the main thrust of the information received, but it was not placed on a file connected to the Israeli Embassy or one which would have fallen within the Crown's disclosure strategy.
There was a cross-reference to the document in a file received for disclosure which would have led to the document if noted, but the unusual physical position of the cross-reference on the file was such that it was over-looked during the disclosure exercise.”
18. The hearing of the appeal was adjourned for reasons unconnected with the present application, and resumed almost a year later, on 16 October 2001, when the applicants repeated their submission that the present case was indistinguishable from Rowe and Davis v. the United Kingdom [GC], no. 28901/95, ECHR 2000-II (see paragraphs 37-38 below), and that, in order to comply with Article 6 of the Convention, the Court of Appeal was required either to quash the conviction or order full disclosure of all relevant evidence not seen by the trial judge. In its judgment of 1 November 2001 ([2001] EWCA Crim 2226), the Court of Appeal rejected the argument that it could never be appropriate for it to conduct an ex parte hearing to determine a claim for public interest immunity in respect of material which had not been placed before the trial judge. It explained its approach in the disclosure proceedings as follows:
“We turn next to the ex parte hearing which we held at the first stage of this appeal and its consequences. We considered the matter in relation to which the prosecution claimed public interest immunity before us in the context of all the matter before the trial judge, both disclosed on his order and undisclosed. We specifically bore in mind the grounds of appeal and the terms of the letter of 31st March 2000, from the CPS to the appellants' solicitors setting out their disclosure strategy in response to the solicitors' request for disclosure. We also specifically considered whether there was disclosable material relating to any warning by the Israeli ambassador or any involvement in the bombing by Mossad or in relation to bombings in Argentina in 1992 and 1994. Our approach was to consider whether there was a public interest in the non-disclosure of particular matter and, if there was, whether this was outweighed because it might, if disclosed, have helped the defence on issues raised by them at trial.... Because a year had elapsed between the first and second stages of this appeal we again, at the second stage, and in accordance with the same considerations, looked at the matter in relation to which public interest immunity was claimed. We also took into account the further submissions made on behalf of the appellants during the second stage of the appeal. We are unpersuaded that the Crown's system and strategy in relation to disclosure ... is flawed. In particular the suggestion that they adopted too narrow an approach is unsubstantiated.
Having considered all the matter placed before us in this way, we were and are entirely satisfied about five things. First, prosecuting counsel have had access to everything they want to see and have examined all relevant and potentially material matter ... and they have continued to keep the need for disclosure under review. Secondly, the trial judge was correct to rule as he did in relation to the disclosure and non-disclosure of the matter before him. Thirdly, no one has attempted to conceal from this court any relevant or potentially material matter. Fourthly, public interest immunity has been rightly claimed in relation to the matter which we have seen, because it affects national security at the highest level and would, if disclosed, present a clear and immediate threat to life. Fifthly, apart from the two matters to which we shall refer, there is nothing of significance before this court which was not before the trial judge. Having ordered disclosure of these matters to the appellants, in a suitable form, and having heard submissions in relation to them, we are satisfied that no injustice was done to the appellants by not having access to that matter at trial. We say this, first, because the matter added nothing of significance to what was disclosed at trial and, secondly, because, for whatever reason, no attempt was made by the defence at trial to exploit, by adducing it in any form before the jury, the similar material in relation to the embassy which had been disclosed at trial. This included information, on the day before the bombing, that Hizbollah was planning attacks in London and Geneva and, after the bombing, that it had been carried out by Hizbollah using nonMuslim mercenaries. Information was also disclosed that three named Iranians were involved in the bombing under the direction of the IRGC Chief in Europe and in relation to terrorist activity in Argentina in 1992 and 1994. At trial, no attempt was made to place this, or other disclosed material pointing to the possible involvement of other groups, before the jury. Whether this was because the principal issue at trial was whether Reeda existed and this information was inconsistent with the appellants' claim that Reeda was a Palestinian, or for some other reason, we do not know. We do not accept [counsel for the applicants'] submission that its vagueness or contradictory nature precluded its use if, otherwise, it was thought to help the defence. Expert evidence was called for the defence that the bombers could have come from many different places, though responsibility was not attributed to any particular group or organisation. There was also expert evidence that the organisation with which Alami was connected did not believe in violence outside Israel. The judge's summing-up rehearsed these matters in what [counsel for the applicants] called 'commendable detail' No complaint of any kind is directed to the summing-up. The jury could not have failed to realise that there were many possible candidates for carrying out bombings of this kind.
The two matters which we ordered should be disclosed during the course of this appeal were, first, further information, prior to the bombings, suggesting that a terrorist organisation unconnected with the appellants may have been contemplating an attack on the Israeli Embassy and, secondly, an explanation as to the circumstances in which a document was not shown to counsel and a later document was not shown to the trial judge. As to the information, for the reasons already given, this would have had no impact on the trial. As to the explanation about the documents, which we accept, this disposed of any possible sinister implication: we do not take the view that deliberate malpractice is a necessary or proper inference from repeated human error, particularly in the light of the explanation given to us in the ex parte proceedings. Further, having seen the later document which the judge did not see, we are satisfied that it, like the similar, but not identical, document which he did see, was not a document which ought to have been, or should now be, disclosed: its terms, so far as they are material, are properly reflected in the information which we ordered to be disclosed. [Counsel for the applicants'] final submissions proceeded on the assumption that this court had seen material, not disclosed, tending to suggest that another English-based group unconnected with the appellants may have been involved in these bombings. All we say about that assumption is that, if it were correct, this court's obligations, at common law and under Article 6, would have required us to order its disclosure. We should also emphasise that assessment of the accuracy or reliability of the information disclosed is no part of this court's function.”
The Court of Appeal therefore concluded that there had been no breach of the applicants' Article 6 rights and no reason to regard their convictions as unsafe.
19. The applicants petitioned the House of Lords for leave to appeal against the judgment of the Court of Appeal, but were refused leave on 14 November 2002.
20. At common law, the prosecution has a duty to disclose any material which has or might have some bearing on the offence charged. This duty extends to any earlier written or oral statement of a prosecution witness which is inconsistent with evidence given by that witness at the trial and statements of any witnesses potentially favourable to the defence.
21. In December 1981 the Attorney-General issued guidelines, which did not have force of law, concerning exceptions to the common-law duty to disclose to the defence evidence of potential assistance to it ((1982) 74 Crim App 302 – “the Guidelines”)). According to the Guidelines, the duty to disclose was subject to a discretionary power for prosecuting counsel to withhold relevant evidence if it fell within one of the categories set out in paragraph 6. One of these categories (6(iv)) was “sensitive” material which, because of its sensitivity, it would not be in the public interest to disclose. “Sensitive material” was defined as follows:
“... (a) it deals with matters of national security; or it is by, or discloses the identity of, a member of the Security Services who would be of no further use to those services once his identity became known; (b) it is by, or discloses the identity of, an informant and there are reasons for fearing that the disclosure of his identity would put him or his family in danger; (c) it is by, or discloses the identity of, a witness who might be in danger of assault or intimidation if his identity became known; (d) it contains details which, if they became known, might facilitate the commission of other offences or alert someone not in custody that he is a suspect; or it discloses some unusual form of surveillance or method of detecting crime; (e) it is supplied only on condition that the contents will not be disclosed, at least until a subpoena has been served upon the supplier – e.g. a bank official; (f) it relates to other offences by, or serious allegations against, someone who is not an accused, or discloses previous convictions or other matters prejudicial to him; (g) it contains details of private delicacy to the maker and/or might create risk of domestic strife.”
22. In R. v. Ward ([1993] 1 WLR 619), the Court of Appeal stressed that the court and not the prosecution was to decide whether or not relevant evidence should be retained on grounds of public interest immunity. It explained that “... a judge is balancing on the one hand the desirability of preserving the public interest in the absence of disclosure against, on the other hand, the interests of justice. Where the interests of justice arise in a criminal case touching and concerning liberty or conceivably on occasion life, the weight to be attached to the interests of justice is plainly very great indeed”.
23. In R. v. Davis, Johnson and Rowe ([1993] 1 WLR 613), the Court of Appeal held that it was not necessary in every case for the prosecution to give notice to the defence when it wished to claim public interest immunity, and outlined three different procedures to be adopted. The first procedure, which had generally to be followed, was for the prosecution to give notice to the defence that they were applying for a ruling by the court and indicate to the defence at least the category of the material which they held. The defence would then have the opportunity to make representations to the court. Secondly, however, where the disclosure of the category of the material in question would in effect reveal that which the prosecution contended should not be revealed, the prosecution should still notify the defence that an application to the court was to be made, but the category of the material need not be disclosed and the application should be ex parte. The third procedure would apply in an exceptional case where to reveal even the fact that an ex parte application was to be made would in effect be to reveal the nature of the evidence in question. In such cases the prosecution should apply to the court ex parte without notice to the defence.
24. The Court of Appeal observed that although ex parte applications limited the rights of the defence, in some cases the only alternative would be to require the prosecution to choose between following an inter partes procedure or declining to prosecute, and in rare but serious cases the abandonment of a prosecution in order to protect sensitive evidence would be contrary to the public interest. It referred to the important role performed by the trial judge in monitoring the views of the prosecution as to the proper balance to be struck and remarked that, even in cases in which the sensitivity of the information required an ex parte hearing, the defence had “as much protection as can be given without pre-empting the issue”. Finally, it emphasised that it was for the trial judge to continue to monitor the position as the trial progressed. Issues might emerge during the trial which affected the balance and required disclosure “in the interests of securing fairness to the defendant”. For this reason it was important for the same judge who heard any disclosure application also to conduct the trial.
25. The leading case on disclosure at the time of the applicants' trials was the judgment of the Court of Appeal in R. v. Keane ([1994] 1 WLR 746). The Lord Chief Justice, giving the judgment of the court, held that the prosecution should put before the judge only those documents which it regarded as material but wished to withhold on grounds of public interest immunity. “Material” evidence was defined as evidence which could be seen, “on a sensible appraisal by the prosecution: (1) to be relevant or possibly relevant to an issue in the case; (2) to raise or possibly raise a new issue whose existence is not apparent from the evidence which the prosecution proposes to use; (3) to hold out a real (as opposed to fanciful) prospect of providing a lead on evidence which goes to (1) or (2)”.
26. Once the judge was seized of the material, he or she had to perform the balancing exercise between the public interest in non-disclosure and the importance of the documents to the issues of interest, or likely to be of interest, to the accused. If the disputed material might prove the defendant's innocence or avoid a miscarriage of justice, the balance came down firmly in favour of disclosing it. Where, on the other hand, the material in question would not be of assistance to the accused, but would in fact assist the prosecution, the balance was likely to be in favour of non-disclosure.
27. In the case of R. v. Turner ([1995] 1 WLR 264), the Court of Appeal returned to the balancing exercise, stating, inter alia:
“Since R. v. Ward ... there has been an increasing tendency for defendants to seek disclosure of informants' names and roles, alleging that those details are essential to the defence. Defences that the accused has been set up, and allegations of duress, which used at one time to be rare, have multiplied. We wish to alert judges to the need to scrutinise applications for disclosure of details about informants with very great care. They will need to be astute to see that assertions of a need to know such details, because they are essential to the running of the defence, are justified. If they are not so justified, then the judge will need to adopt a robust approach in declining to order disclosure. Clearly, there is a distinction between cases in which the circumstances raise no reasonable possibility that information about the informant will bear upon the issues and cases where it will. Again, there will be cases where the informant is an informant and no more; other cases where he may have participated in the events constituting, surrounding, or following the crime. Even when the informant has participated, the judge will need to consider whether his role so impinges on an issue of interest to the defence, present or potential, as to make disclosure necessary ...”
28. The requirements of disclosure have since been set out in a statutory scheme. Under the Criminal Procedure and Investigations Act 1996, which came into force in England and Wales immediately upon gaining Royal Assent on 4 July 1996, the prosecution must make “primary disclosure” of all previously undisclosed evidence which, in the prosecutor's view, might undermine the case for the prosecution. The defendant must then give a defence statement to the prosecution and the court, setting out in general terms the nature of the defence and the matters on which the defence takes issue with the prosecution. The prosecution must then make a “secondary disclosure” of all previously undisclosed material “which might reasonably be expected to assist the accused's defence as disclosed by the defence statement”. Disclosure by the prosecution may be subject to challenge by the accused and review by the trial court.
NON_VIOLATED_ARTICLES: 6


ITEMID: 001-84971
LANGUAGEISOCODE: ENG
RESPONDENT: BGR
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF KOSTADINOV v. BULGARIA
IMPORTANCE: 3
CONCLUSION: Violations of Art. 3;Violation of Art. 5-3;Violations of Art. 5-4;Violation of Art. 5-5;Non-pecuniary damage - award
JUDGES: Javier Borrego Borrego;Margarita Tsatsa-Nikolovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Snejana Botoucharova;Volodymyr Butkevych
TEXT: 7. On 18 January 1999 a preliminary investigation was opened against the applicant for robbery. On the same day, the applicant was charged with the offence and remanded in custody upon a decision of an investigator which was confirmed by the public prosecutor's office. It was alleged that the applicant, together with another individual, had robbed an individual of 17,480,000 old Bulgarian levs (BGL; approximately 8,964 euros (EUR)) and in the process had used force and rendered the victim unconscious. In ordering that the applicant be remanded in custody the investigator referred to, inter alia, the personality of the detainee, the gravity of the offence and, in general terms, the likelihood that he might abscond or re-offend.
8. The applicant filed an application for release on 27 January 1999, which was dismissed by the Pazardzhik District Court on 3 February 1999. The court found, inter alia, that the applicant was charged with a serious intentional offence, which warranted mandatory detention, and that it was likely that he might commit offences against some of the witnesses, thereby obstructing the investigation. In conclusion, no evidence warranting an exception to the requirement of mandatory detention was found to exist.
9. On 1 March 1999 the applicant filed another application for release arguing, inter alia, that in the course of the preliminary investigation it had been established that the amount which he had allegedly taken from the victim had been only BGL 5,000,000 (approximately EUR 2,564) because the latter had been robbed on more than one occasion on the day in question.
10. The applicant's application for release was dismissed by the District Court on 15 March 1999, which found, inter alia, that the applicant was charged with a serious intentional offence, which warranted mandatory detention, that he might obstruct the investigation and that due to his lack of income he was likely to re-offend. In conclusion, no evidence warranting an exception to the requirement of mandatory detention was found to exist.
11. On 29 March 1999 the applicant filed his third application for release claiming, inter alia, that there was no evidence that he would abscond, re-offend or obstruct the investigation, that he suffered from jaundice and that his health was deteriorating as a result of his detention.
12. The applicant's application for release was dismissed by the District Court on 23 April 1999, which found, inter alia, that the applicant had been charged with a serious intentional offence, which warranted mandatory detention, that he was in good health and that there were indications that he might commit offences against some of the witnesses, thereby obstructing the investigation. In conclusion, no evidence was established to exist warranting an exception to the requirement of mandatory detention.
13. The applicant contended that the charges against him were amended on 9 June 1999, which the Government did not challenge.
14. The preliminary investigation against the applicant was partially terminated on 30 June 1999. The only outstanding charge against him concerned common robbery of BGL 17,480,000 (approximately EUR 8,964).
15. The applicant filed his fourth application for release on 1 July 1999, which was examined by the District Court on 27 July 1999. The court found in favour of the applicant and released him on bail of 200 new Bulgarian levs (approximately EUR 102). It found, inter alia, that the applicant had no criminal record and had good character references, and that the preliminary investigation had already been completed.
16. The applicant was released on the same day, 27 July 1999.
17. The preliminary investigation against the applicant was further partially terminated on 8 October 1999 as a result of its findings pertaining to the amount and currency of the stolen money. The only outstanding charge against the applicant concerned common robbery of 5,000 German marks (approximately EUR 2,564).
18. An indictment against the applicant was filed with the District Court on an undetermined date.
19. In a judgment of an unspecified date the District Court acquitted the applicant. That judgment was subsequently upheld, also on an unspecified date, by the Pazardzhik Regional Court.
20. Between 18 January and 1 July 1999 the applicant was detained at the Pazardzhik Regional Investigation Service detention facility. From 1 July to 27 July 1999 he was detained at the Pazardzhik Prison.
21. The applicant contended, in respect of both detention facilities, that there had been (a) insufficient oxygen in the cells; (b) inadequate hygiene, the use of a bucket for the sanitary needs of the detainees and the presence of parasites (fleas and wood worms), skin infections (scabies) and rodents (mice and rats); (c) insufficient natural light; (d) no special recreational area; (e) unhealthy food; (f) no access to literature, newspapers, magazines, radio or television; (g) no possibility for the applicant to meet with his attorney in private at his initiative; and (h) no possibility to maintain active correspondence.
22. The applicant's contentions in respect of the conditions of detention at the above facilities are corroborated by the signed declarations of two other detainees, Mr D. Alexov and Mr R. Dobrev.
23. The relevant provisions of the Code of Criminal Procedure (“the CCP”) and the Bulgarian courts' practice before 1 January 2000 are summarised in the Court's judgments in several similar cases (see, among others, Nikolova v. Bulgaria [GC], no. 31195/96, §§ 25-36, ECHR 1999-II, Ilijkov v. Bulgaria, no. 33977/96, §§ 55-59, 26 July 2001; and Yankov v. Bulgaria, no. 39084/97, §§ 79-88, ECHR 2003-XII (extracts)).
24. On the basis of the relevant law before 1 January 2000, when ruling on applications for release of a person charged with having committed a “serious” offence, the domestic courts generally disregarded facts and arguments concerning the existence or absence of a danger of the accused person's absconding or committing offences and stated that every person accused of having committed a serious offence must be remanded in custody unless exceptional circumstances dictated otherwise (see decisions of the domestic authorities criticised by the Court in the cases of Nikolova and Ilijkov, both cited above, and Zaprianov v. Bulgaria, no. 41171/98, 30 September 2004).
25. The State and Municipalities Responsibility for Damage Act 1988 (the “SMRDA”: renamed in 2006) provided at the relevant time that the State was liable for damage caused to private persons by (a) the illegal orders, actions or omissions of government bodies and officials acting within the scope of, or in connection with, their administrative duties; and (b) the organs of the investigation, the prosecution and the courts for unlawful pretrial detention, if the detention order has been set aside for lack of lawful grounds (sections 1-2).
26. In respect of the regime of detention and conditions of detention, the relevant domestic law and practice under sections 1 and 2 of the SMRDA has been summarised in the cases of Iovchev v. Bulgaria (no. 41211/98, §§ 76-80, 2 February 2006) and Hamanov v. Bulgaria (no. 44062/98, §§ 56-60, 8 April 2004).
27. The CPT visited Bulgaria in 1995, 1999, 2002, 2003 and 2006. All but its most recent visit report have since been made public.
28. The Pazardzhik Regional Investigation Service detention facility and the Pazardzhik Prison were visited in 1995.
29. The CPT found that most, albeit not all, of the investigation service detention facilities were overcrowded. With the exception of one detention facility where conditions were slightly better, the conditions were as follows: cells did not have access to natural light; the artificial lighting was too weak to read by and was left on permanently; ventilation was inadequate; the cleanliness of the bedding and the cells as a whole left much to be desired; detainees could access a sanitary facility twice a day (morning and evening) for a few minutes and could take a weekly shower; outside of the two daily visits to the toilets, detainees had to satisfy the needs of nature in buckets inside the cells; although according to the establishments' internal regulations detainees were entitled to a “daily walk” of up to thirty minutes, it was often reduced to five to ten minutes or not allowed at all; no other form of out-of-cell activity was provided to persons detained.
30. The CPT further noted that food was of poor quality and in insufficient quantity. In particular, the day's “hot meal” generally consisted of a watery soup (often lukewarm) and inadequate quantities of bread. At the other meals, detainees only received bread and a little cheese or halva. Meat and fruit were rarely included on the menu. Detainees had to eat from bowls without cutlery – not even a spoon was provided.
31. The CPT also noted that family visits and correspondence were only possible with express permission by a public prosecutor and that, as a result, detainees' contacts with the outside world were very limited. There was no radio or television.
32. The CPT concluded that the Bulgarian authorities had failed in their obligation to provide detention conditions which were consistent with the inherent dignity of the human person and that “almost without exception, the conditions in the investigation service detention facilities visited could fairly be described as inhuman and degrading”. In reaction, the Bulgarian authorities agreed that the CPT delegation's assessment had been “objective and correctly presented” but indicated that the options for improvement were limited by the country's difficult financial circumstances.
33. In 1995 the CPT recommended to the Bulgarian authorities, inter alia, that sufficient food and drink and safe eating utensils be provided, that mattresses and blankets be cleaned regularly, that detainees be provided with personal hygiene products (soap, toothpaste, etc.), that custodial staff be instructed that detainees should be allowed to leave their cells during the day for the purpose of using a toilet facility unless overriding security considerations required otherwise, that the regulation providing for thirty minutes' exercise per day be fully respected in practice, that cell lighting and ventilation be improved, that the regime of family visits be revised and that pre-trial detainees be more often transferred to prison even before the preliminary investigation was completed. The possibility of offering detainees at least one hour's outdoor exercise per day was to be examined as a matter of urgency.
34. The CPT established that the Pazardzhik Regional Investigation Service detention facility had fifteen cells, situated in the basement, and at the time of the visit accommodated thirty detainees, including two women in a separate cell.
35. Six cells measuring approximately twelve square metres were designed to accommodate two detainees; the other nine, intended for three occupants, measured some sixteen-and-a-half square metres. This occupancy rate was being complied with at the time of the visit and from the living space standpoint was deemed acceptable by the CPT. However, all the remaining shortcomings observed in the other investigation service detention facilities – dirty and tattered bedding, no access to natural light, absence of activities, limited access to sanitary facilities, etc. – also applied there. Even the thirty-minute exercise rule, provided for in the internal regulations and actually posted on cell doors, was not observed.
36. In this report the CPT found, inter alia, that the prison was seriously overcrowded and that prisoners were obliged to spend most of the day in their dormitories, mostly confined to their beds because of lack of space. It also found the central heating to be inadequate and that only some of the dormitories were fitted with sanitary facilities.
37. The CPT noted that new rules providing for better conditions had been enacted but had not yet resulted in significant improvements.
38. In most investigation detention facilities visited in 1999, with the exception of a newly opened detention facility in Sofia, conditions of detention were generally the same as those observed during the CPT's 1995 visit, as regards poor hygiene, overcrowding, problematic access to toilet/shower facilities and a total absence of outdoor exercise and outofcell activities. In some places, the situation had even deteriorated.
39. In the Plovdiv Regional Investigation Service detention facility, as well as in two other places, detainees “had to eat with their fingers, not having been provided with appropriate cutlery”.
40. During the 2002 visit some improvements were noted in the country's investigation service detention facilities, severely criticised in previous reports. However, a great deal remained to be done: most detainees continued to spend months on end locked up in overcrowded cells twenty-four hours a day.
41. Concerning prisons, the CPT drew attention to the problem of overcrowding and to the shortage of work and other activities for inmates.
VIOLATED_ARTICLES: 3
5
VIOLATED_PARAGRAPHS: 5-3
5-4
5-5


ITEMID: 001-115315
LANGUAGEISOCODE: ENG
RESPONDENT: BGR
BRANCH: COMMITTEE
DATE: 2012
DOCNAME: CASE OF VULDZHEV v. BULGARIA
IMPORTANCE: 4
CONCLUSION: Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for correspondence)
JUDGES: David Thór Björgvinsson;Krzysztof Wojtyczek;Zdravka Kalaydjieva
TEXT: 5. The applicant was born in 1976 and lives in Plovdiv.
6. On 12 July 2006 he was convicted of theft and sentenced to three years and two months’ imprisonment. In the period between 16 April and 17 December 2007 he was detained in a low-security prison facility („затворническо общежитие”) in Smolyan, part of Plovdiv Prison.
7. The applicant submitted that the entirety of his incoming and outgoing correspondence with his lawyers had been monitored by the prison administration. He submitted two envelopes addressed by him to his lawyers, one from the prison facility in Smolyan and one from Plovdiv Prison. Each envelope was marked or stamped as having been monitored by the prison administration. As noted in a letter from the General Directorate of Enforcement of Sentences at the Ministry of Justice submitted by the Government, the prison administration, acting in compliance with section 33 § 1(c) of the Enforcement of Sentences Act of 1969, routinely opened all letters, including those sent to lawyers, save those addressed to certain state bodies or international organisations.
8. The applicant further submitted that he had not been allowed to contact his lawyer by phone and that his meetings with relatives and lawyers had been held in special premises with a prison officer attending the meeting.
9. The applicant submitted that the conditions of his detention in the prison facility in Smolyan had been poor. In particular, the stated that (a) his cell had been small and overcrowded, not equipped with a toilet or a sink; (b) the number of toilets and showers had been insufficient; (c) the food had been of poor quality and insufficient; (d) the heating and ventilation had been insufficient; (e) the level of hygiene in the common areas had been poor; (f) dental services had not been covered by the State; (g) prison officers had often addressed inmates in an offensive way, physical harassment had not been uncommon, and disciplinary punishments had been imposed without proper observance of inmates’ rights.
10. The applicant never brought an action for damages under the State and Municipalities Responsibility for Damages Act (“the SMRDA”).
11. The relevant domestic law and practice concerning prisoners’ correspondence are set out in the Court’s judgment in the case of Iliev and Others v. Bulgaria, nos. 4473/02 and 34138/04, §§ 25-31, 10 February 2011.
VIOLATED_ARTICLES: 8
VIOLATED_PARAGRAPHS: 8-1


ITEMID: 001-94072
LANGUAGEISOCODE: ENG
RESPONDENT: ITA
BRANCH: GRANDCHAMBER
DATE: 2009
DOCNAME: CASE OF ENEA v. ITALY
IMPORTANCE: 1
CONCLUSION: Remainder inadmissible;No violation of Art. 3 (substantive aspect);Violation of Art. 6-1;No violation of Art. 6-1;Violation of Art. 8;Non-pecuniary damage - finding of violation sufficient
JUDGES: Alvina Gyulumyan;András Sajó;Anatoly Kovler;Antonella Mularoni;Christos Rozakis;Elisabeth Steiner;Françoise Tulkens;Giorgio Malinverni;Ján Šikuta;Jean-Paul Costa;Josep Casadevall;Khanlar Hajiyev;Ledi Bianku;Nicolas Bratza;Renate Jaeger;Sverre Erik Jebens;Vladimiro Zagrebelsky
TEXT: 7. The applicant was born in 1938 and lives in Italy.
8. The applicant was placed in detention on 23 December 1993.
9. Several sets of criminal proceedings were brought against him, as a result of which he was sentenced to terms of imprisonment for, among other offences, membership of a mafia-type criminal organisation, drug trafficking and illegal possession of firearms. On 27 December 2001 the public prosecutor at the Milan Court of Appeal ordered that the applicant’s sentences be aggregated and fixed the overall term at thirty years.
10. The applicant was detained in several Italian prisons (including Palermo, Catania, Pisa and Naples).
11. On 10 August 1994, in view of the danger posed by the applicant, the Minister of Justice issued a decree ordering that he be subject for one year to the special prison regime provided for in the second paragraph of section 41 bis of the Prison Administration Act (“Law no. 354 of 1975”). This provision, which was amended by Law no. 279 of 23 December 2002 (“Law no. 279 of 2002”), allows application of the ordinary prison regime to be suspended in whole or in part for reasons of public order and safety.
The 1994 decree imposed the following restrictions:
– restrictions on visits by family members (a maximum of a single onehour visit per month);
– no meetings with non-family members;
– prohibition on using the telephone;
– no sums of money above a fixed amount to be received or sent out;
– no more than two parcels to be received per month, but permission to receive two parcels per year containing clothing and linen;
– ban on organising cultural, recreational or sports activities;
– no right to vote in elections for prisoners’ representatives or to be elected as a representative;
– no handicraft activities;
– no food requiring cooking to be purchased;
– no more than two hours’ outdoor exercise per day.
12. In addition, all the applicant’s correspondence was to be monitored, subject to prior authorisation by the judicial authority.
13. The application of the special regime was subsequently extended on nineteen occasions for successive periods of one year or six months.
Each decree covered a limited period, as follows:
10 August 1994 – 9 August 1995 (decree no. 1)
5 August 1995 – 5 February 1996 (decree no. 2)
2 February 1996 – 2 August 1996 (decree no. 3)
31 July 1996 – 31 January 1997 (decree no. 4)
4 February 1997 – 4 August 1997 (decree no. 5)
31 July 1997 – 31 January 1998 (decree no. 6)
4 February 1998 – 4 August 1998 (decree no. 7)
30 July 1998 – 30 January 1999 (decree no. 8)
27 January 1999 – 27 July 1999 (decree no. 9)
22 July 1999 – 31 December 1999 (decree no. 10)
23 December 1999 – 23 June 2000 (decree no. 11)
22 June 2000 – 31 December 2000 (decree no. 12)
21 December 2000 – 21 June 2001 (decree no. 13)
18 June 2001 – 18 December 2001 (decree no. 14)
13 December 2001 – 13 June 2002 (decree no. 15)
10 June 2002 – 31 December 2002 (decree no. 16)
28 December 2002 – 22 December 2003 (decree no. 17)
23 December 2003 – 23 December 2004 (decree no. 18)
17 December 2004 – 17 December 2005 (decree no. 19).
14. The applicant appealed against most of these decrees to the Naples court responsible for the execution of sentences. The case file shows that the applicant did not appeal on points of law against the decisions of the latter court. He maintained that the Court of Cassation would in any event have dismissed the appeals on the ground that he no longer had an interest in having them examined since the period of validity of the decrees in question had expired.
– Decree no. 1
On an unspecified date the applicant appealed against the decree of 10 August 1994. In a decision of 28 February 1995, the court responsible for the execution of sentences dismissed the appeal, taking the view that the application of the special prison regime was justified. However, the restrictions were eased to allow the applicant one hour-long telephone conversation per month with members of his family, in the absence of a visit by the latter; the restriction on the time spent in outdoor exercise and the prohibition on purchasing food requiring cooking were also lifted.
– Decree no. 3
On 9 February 1996 the applicant appealed against the decree of 2 February 1996. In a decision of 26 March 1996, deposited with its registry on 30 March 1996 and served on the applicant on 30 April 1996, the court responsible for the execution of sentences declared the appeal inadmissible on the ground that, in accordance with the restrictive case-law followed at the time, the court hearing the case did not have the power to examine the merits of the restrictions imposed.
– Decree no. 5
On 6 February 1997 the applicant appealed against the decree of 4 February 1997 (served the following day). In a decision of 6 May 1997, deposited with the registry on 15 May 1997 and served on the applicant on 21 May 1997, the court, while upholding the application of the special regime, relaxed the restriction on visits by family members in order to allow the applicant two hour-long visits per month.
– Decree no. 6
On 4 August 1997 the applicant appealed against the decree of 31 July 1997 (served on 2 August 1997). In a decision of 16 October 1997, deposited with the registry on 22 October 1997 and served on the applicant on 24 October 1997, the court responsible for the execution of sentences, while upholding the application of the special regime, lifted the restriction on the number of visits by family members.
– Decree no. 7
On 9 February 1998 the applicant appealed against the decree of 4 February 1998. In a decision of 2 July 1998, deposited with the registry on 9 July 1998 and served on the applicant on 12 August 1998, the court responsible for the execution of sentences dismissed the appeal on the ground that the restrictions imposed on the applicant were justified.
– Decree no. 8
On 3 August 1998 the applicant appealed against the decree of 30 July 1998 (served the following day). In a decision of 30 November 1998, deposited with the registry on 9 December 1998 and served on the applicant on 23 December 1998, the court responsible for the execution of sentences dismissed the appeal on the ground that the restrictions imposed on the applicant were justified.
– Decree no. 9
On 1 February 1999 the applicant appealed against the decree of 27 January 1999. In a decision of 7 October 1999, deposited with the registry on 20 October 1999 and served on the applicant on an unspecified date, the court responsible for the execution of sentences declared the appeal inadmissible. It observed that the period of validity of the decree had expired on 27 July 1999 and that, accordingly, the applicant no longer had an interest in having it examined.
– Decree no. 10
On 27 July 1999 the applicant appealed against the decree of 22 July 1999 (served on 24 July 1999). The Court has not been informed of the outcome of this appeal.
– Decree no. 11
On 28 December 1999 the applicant appealed against the decree of 23 December 1999. In a decision of 11 May 2000, deposited with the registry on 23 May 2000 and served on the applicant on 21 July 2000, the court responsible for the execution of sentences declared the appeal inadmissible as the applicant had declared his intention not to pursue it.
– Decree no. 12
On 26 June 2000 the applicant appealed against the decree of 22 June 2000 (served on 23 June 2000). In a decision of 6 November 2001, the court responsible for the execution of sentences dismissed the appeal on the ground that the validity of the impugned decree had expired.
– Decree no. 13
On an unspecified date the applicant appealed against the decree of 21 December 2000. In a decision of 23 April 2001, deposited with the registry on 3 May 2001, the court responsible for the execution of sentences dismissed the appeal as unsubstantiated.
– Decree no. 14
On 21 June 2001 the applicant appealed against the decree of 18 June 2001 (served on 20 June 2001). In a decision of 14 November 2001, the court responsible for the execution of sentences dismissed the appeal on the ground that application of the special prison regime was justified in view of the danger posed by the applicant and his links with criminal circles.
– Decree no. 15
On 17 December 2001 the applicant appealed against the decree of 13 December 2001 (served on 14 December 2001). In a decision of 11 April 2002, the court responsible for the execution of sentences dismissed the appeal as unsubstantiated.
– Decree no. 17
On an unspecified date the applicant appealed against the decree of 28 December 2002. He requested the court responsible for the execution of sentences to seek a review by the Constitutional Court of the compatibility of paragraph 2 bis of section 41 bis (as amended by Law no. 279 of 2002) with several Articles of the Constitution.
In a decision of 3 March 2003, served on the applicant on 8 April 2003, the court responsible for the execution of sentences ordered that the file be transmitted to the Constitutional Court. The decision was taken on the ground that, in so far as Law no. 279 of 2002 did not require the Minister of Justice to give reasons for the decrees, an issue of constitutionality could arise. The court observed in particular that in the instant case the applicant had been subject to the special prison regime since 1994 and that the reasons given for the decrees extending application of the regime related to ongoing links between the applicant and the criminal organisation to which he belonged, notwithstanding the fact that he was subject to the special regime.
By decision no. 417 of 13 December 2004, deposited with the registry on 23 December 2004, the Constitutional Court dismissed the objection as to constitutionality raised by the court responsible for the execution of sentences, finding that it was manifestly ill-founded.
– Decree no. 18
On an unspecified date the applicant appealed against the decree of 23 December 2003. He argued that the special regime was hindering his rehabilitation, in breach of Article 27 of the Constitution, and that it failed to respect the needs of his personality, contrary to section 13 of Law no. 354 of 1975.
In a decision of 19 November 2004, deposited with the registry on 15 December 2004, the court responsible for the execution of sentences dismissed the appeal on the basis of the police investigations, on the ground that application of the special regime was justified on account of the applicant’s links to organised crime.
– Decree no. 19
On 23 December 2004 the applicant appealed against the decree of 17 December 2004. In a decision of 11 February 2005, deposited with the registry on 28 February 2005, the court responsible for the execution of sentences allowed the applicant’s appeal. It took the view that the security considerations which had been the reason for applying the special prison regime were no longer valid; it therefore ordered the measure in question to be rescinded.
15. On 1 March 2005 the prison authorities placed the applicant in a high-supervision (“E.I.V.”) unit.
16. On 24 April 2008 the Naples judge responsible for the execution of sentences, on a provisional basis and pending the decision of the court responsible for the execution of sentences, ordered a stay of execution of the applicant’s sentence and his release in order to undergo urgent surgery. This decision was upheld on 2 October 2008 by the Naples court responsible for the execution of sentences.
17. The applicant suffers from a number of disorders which oblige him to use a wheelchair. From June 2000 to February 2005 he served his sentence in the part of the hospital wing of Naples Prison (Secondigliano) reserved for prisoners detained under the section 41 bis regime.
18. On an unspecified date the applicant applied to the Naples court responsible for the execution of sentences for a stay of execution of his sentence on health grounds, under Articles 146 and 147 of the Criminal Code. In a decision of 18 January 2001, the court responsible for the execution of sentences, basing its decision on a report drawn up by the prison medical team, rejected the application on the ground that the applicant was being held in the prison’s hospital wing and was receiving treatment appropriate to his state of health.
19. On an unspecified date the applicant made a fresh application to the judge responsible for the execution of sentences for a stay of execution of his sentence on health grounds. In a decision of 22 March 2002, the judge rejected the application on the ground that the applicant’s state of health was not incompatible with detention in the prison hospital wing. On 2 July 2002 the Naples court responsible for the execution of sentences upheld that decision.
20. In February 2007, after authorisation had been obtained from the court responsible for the execution of sentences, the applicant was taken to a Naples civil hospital for an operation to remove a kidney.
21. On 24 April 2008 the Naples judge responsible for the execution of sentences provisionally stayed execution of the applicant’s sentence and ordered his release in order to undergo urgent surgery (see paragraph 16 above).
22. According to the information provided to the Court by the parties, the Naples court responsible for the execution of sentences ordered a stay of execution of the applicant’s sentence on 2 October 2008 on account of his state of health. The applicant had had an operation to remove one of two brain tumours on 3 September 2008 and his state of health was found to be incompatible with detention. The court placed him under house arrest for a period of six months, prohibiting contact with any persons other than family members and medical personnel. The court’s decision to place the applicant under house arrest was based on the applicant’s criminal personality and the length of his sentence and on a note from the Palermo police authorities dated 16 April 2008.
23. The Court has not been informed of the applicant’s current state of health.
24. On 10 August 1994 the Minister of Justice issued the first decree subjecting the applicant to the special prison regime and ordered the monitoring of all his correspondence, subject to prior authorisation by the judicial authority (see paragraphs 11 and 12 above).
25. The corresponding decisions of the Naples court responsible for the execution of sentences communicated to the Court relate to the period between 2 July 1996 and 7 July 2004. The first decisions imposed the measure in relation to all correspondence for an unspecified period. On 3 August 1999 the judge responsible for the execution of sentences fixed the maximum period at six months and ordered that the applicant’s correspondence with the European Court of Human Rights, in particular, should not be monitored.
26. The applicant furnished a copy of an undated letter and an envelope, both addressed to his lawyer, Mr Vetrano, the latter postmarked 3 March 2000. Both documents had been inspected by the prison authorities, but the corresponding stamps were not dated.
27. On 16 October 1999 the applicant applied to the Milan District Court for prison leave in order to attend his brother’s funeral. On 18 October 1999 the court allowed the application but made the leave subject to whatever detailed arrangements might be laid down by the courts responsible for the execution of sentences. It also ordered that “the other judicial authorities concerned, the public prosecutor’s office and the applicant” be informed of its decision.
28. The case file shows that the Milan Court of Appeal rejected the applicant’s application on 19 October 1999 on account of the risk that he might abscond. The decision was deposited with the registry on 21 October 1999.
29. The applicant stated that he had also applied for prison leave to attend his partner’s funeral.
30. The relevant domestic law and practice summarised in the Ospina Vargas v. Italy judgment (no. 40750/98, §§ 23-33, 14 October 2004) are set out below.
31. Section 41 bis of the Prison Administration Act (Law no. 354 of 1975), as amended by Law no. 356 of 7 August 1992, gives the Minister of Justice the power to suspend application of the ordinary prison regime as laid down in Law no. 354 of 1975 in whole or in part, by means of a decision stating grounds which is subject to judicial review, for reasons of public order and security in cases where the ordinary prison regime would conflict with these requirements.
Such a measure can be applied only to prisoners charged with or sentenced for the offences mentioned in section 4 bis of the Act, which include offences relating to Mafia activities.
Pursuant to Law no. 36 of 1995, and subsequently Law no. 11 of 1998 and Law no. 446 of 1999, application of the section 41 bis special regime was extended until 31 December 2000. It was later extended until 31 December 2002 pursuant to Law no. 4 of 19 January 2001. On the entry into force on 23 December 2002 of Law no. 279, partly amending the Prison Administration Act, the special prison regime ceased to be temporary in nature.
On the basis of Legislative Decree no. 773/2009, the special regime is now applied for an initial period of four years (compared with one year previously); this can subsequently be extended by two years (compared with one year previously).
32. Before Law no. 279 of 2002 came into force, the choice of measures resulting from the application of section 41 bis was left to the discretion of the Minister of Justice. However, the measures imposed were generally the following:
– a ban on participating in the preparation of food and organising prisoners’ recreational activities;
– a ban on visits by persons other than family members, a cohabitant or a lawyer;
– a maximum of two visits by family members and one telephone call per month;
– monitoring of all the prisoner’s correspondence except for that with his lawyer;
– not more than two hours per day to be spent outdoors;
– restrictions on acquiring or receiving from outside prison personal possessions authorised by the prison’s internal rules;
– no more than two parcels per month;
– no sums of money to be received from outside prison or sent out;
– no handicrafts involving the use of dangerous tools.
33. Section 14 ter of the Prison Administration Act provides for the possibility of an appeal (reclamo) to the court responsible for the execution of sentences against a decree imposing the special prison regime within ten days from the date on which the person concerned receives a copy of the decree. Such an appeal does not have suspensive effect. The court must give a ruling within ten days. An appeal to the Court of Cassation lies against the decision of the court responsible for the execution of sentences; again, such an appeal must be lodged within ten days of the date on which the refusal by the court has been served.
Until Law no. 279 of 2002 came into force, section 14 ter also applied to complaints about decrees adopted by the Minister of Justice under section 41 bis. Paragraphs 2 quinquies and 2 sexies of section 41 bis have subsequently provided for a special complaints procedure, which is nonetheless modelled on the procedure laid down in section 14 ter.
34. The Constitutional Court was asked to rule on whether such a system complied with the principle of non-encroachment on matters reserved for the legislature. In judgments nos. 349 and 410 of 1993, it held that section 41 bis was compatible with the Constitution. It observed that while the special prison regime within the meaning of the provision in question was in practice laid down by the Minister, an appeal lay against a ministerial decree to the courts responsible for the execution of sentences, which had the power to review both the need for such a measure and the actual measures to be applied to the prisoner concerned, which in any event ought never to entail inhuman treatment.
However, on the basis of Article 15 of the Constitution, which provides, inter alia, that restrictions on correspondence may be imposed only by means of a court decision containing a statement of reasons, the Constitutional Court held that the power to order monitoring of a prisoner’s correspondence was vested in the courts alone. As a result, section 41 bis could not be construed as empowering the Minister of Justice to take measures relating to prisoners’ correspondence. Accordingly, from the end of 1993 the sole basis for monitoring of correspondence was section 18 of Law no. 354 of 1975, as amended by section 1 of Law no. 1 of 1977.
Under that provision, the court before which proceedings are pending (until the delivery of the first-instance judgment) or the court responsible for the execution of sentences (during any subsequent proceedings) may order the monitoring of prisoners’ correspondence, stating reasons for its decision; the provision does not, however, specify the cases in which such a decision may be taken. In practice, monitoring means interception of all a prisoner’s correspondence, which is then read by the judicial authority which ordered it, by the governor of the prison or by prison staff designated by the governor. The letters are then stamped to show that they have been inspected. The deletion of words or sentences is not permitted, but the judicial authority may order that one or more letters should not be delivered, in which case the prisoner must be informed immediately. Such an order may also be made provisionally by the prison governor, who must inform the judicial authority.
Section 18 of Law no. 354 of 1975 also provides that prisoners are allowed to keep books and magazines and to use other means of communication. This right may be restricted in a decision by the judicial authority, in accordance with the same conditions that apply in the case of correspondence.
Under section 35 of the same Law, prisoners may make sealed applications or complaints concerning decisions taken in accordance with section 18 of Law no. 354 of 1975 to, inter alia, the prison authorities and the court responsible for the execution of sentences.
35. In judgment no. 351 of 14 of 18 October 1996, the Constitutional Court held that the power of judicial review by the courts responsible for the execution of sentences extended to the practical arrangements for implementing a measure, regard being had both to the aim pursued and to the fundamental rights guaranteed by the Constitution.
36. On 7 February 1997, applying the principles laid down by the Constitutional Court in judgment no. 351/1996, the Prison Administration Department of the Ministry of Justice sent a circular to prison governors regarding organisation of the wings where prisoners subject to the special regime were held. The circular contained the following instructions, among others: prisoners would from then on be allowed to use stoves; they would have access to rooms equipped for sporting activities and to a library; visits by family members could be replaced by telephone calls; and the use of glass partitions would continue but, as a result, the searching of visitors need not be so strict.
37. In judgment no. 376 of 26 November to 5 December 1997, the Constitutional Court reaffirmed that section 41 bis was compatible with the Constitution, while amending and clarifying the manner in which it was to be interpreted. It considered, in particular, that decrees imposing the special regime had to be based on genuine public-order and security grounds, and that decisions to extend application of the regime also had to be based on sufficient grounds independent of those which had justified its initial imposition. The Constitutional Court emphasised that the special regime should not entail inhuman treatment or hinder the prisoner’s rehabilitation, which would be contrary to Article 27 of the Constitution. It nevertheless stated that at no time did section 13 of the Prison Administration Act cease to apply, under which the treatment to which a prisoner was subjected had to respect his personality, and a rehabilitation programme had to be prepared and adapted on the basis of scientific observation of the prisoner’s personality and with his or her cooperation.
38. On 20 February 1998, in accordance with the principles laid down by the Constitutional Court in judgment no. 376/1997, the Prison Administration Department of the Ministry of Justice sent a circular to prison governors regarding organisation of the wings where prisoners subject to the special regime were held. The circular contained the following instructions, among others:
– outdoor exercise time was to be increased to four hours per day, but care was to be taken to ensure that this did not become an opportunity for meeting or making contact with other presumed members of the Mafia;
– the outdoor exercise yards in Naples and Pisa Prisons were to be equipped for physical exercise and sport;
– one or more rooms for social, cultural or recreational activities were to be provided in each wing to which prisoners subject to the special regime were permanently assigned or which were occupied by them for medical reasons;
– on the question of work, the circular stated that where it was not possible to equip a prison appropriately prisoners should have access to premises equipped for this purpose in other prisons, with measures in place to exclude any opportunity of meeting or making contact with other presumed members of the Mafia;
– visits by children under 16 years of age could take place without a glass partition; if the visit took place in the presence of other persons, partition-free access was to be authorised for the children only and was not to exceed one-sixth of the total duration of the visit in length;
– prisoners subject to the special regime could receive parcels containing foodstuffs apart from those requiring cooking, because they were not allowed to use stoves except for the purpose of making hot drinks or heating up pre-cooked food.
39. With regard to the monitoring of correspondence, in judgment no. 26 of 8 to 11 February 1999, the Constitutional Court, ruling in a case concerning the refusal of the prison authorities to allow a prisoner to receive an erotic publication, declared unconstitutional sections 35 (on the remedies available to prisoners) and 69 (on the functions and decisions of the judge responsible for the execution of sentences) of Law no. 354 of 1975 in that they did not provide for any form of judicial review of decisions likely to interfere with prisoners’ rights, in particular decisions to monitor correspondence or to restrict the right to receive magazines or other periodicals. Decisions by the authorities to which applications were made under section 35 were adopted without adversarial proceedings and no appeal to the ordinary courts or the Court of Cassation lay against them. The lack of such a remedy had, moreover, already been noted and criticised by the European Court in the Calogero Diana v. Italy and Domenichini v. Italy judgments (15 November 1996, Reports of Judgments and Decisions 1996-V).
40. Following the entry into force of Law no. 95 of 8 April 2004, a new section 18 ter concerning the monitoring of correspondence has been added to the Prison Administration Act. It provides that correspondence may be monitored for a maximum period of six months in order to prevent the commission of crimes or to maintain security in prisons and to ensure the confidentiality of investigations. Monitoring is ordered in a decision with a statement of grounds by the judicial authority, at the request of the prosecuting authorities or the prison governor. Paragraph 2 of section 18 ter provides that prisoners’ correspondence with, inter alia, their lawyers and international human rights bodies cannot be monitored. Lastly, paragraph 6 of section 18 ter provides that complaints against decisions to monitor correspondence may be lodged in accordance with the procedure laid down in section 14 bis of the Prison Administration Act.
41. As is stated in the official report by the Ministry of Justice submitted to the Court by the Government in May 2004, the following measures may result from the application of section 41 bis as amended by Law no. 279 of 2002, with a view to preventing contact with the criminal organisation in question or other prisoners belonging to it:
(a) outdoor exercise time limited to four hours per day in groups of no more than five prisoners (members of each group must be subject to the same type of regime and the groups must be rotated every three months);
(b) stoves made available to prisoners when the cells are opened and taken back for storage elsewhere when the cells are closed;
(c) ban on the use of FM radios, tape recorders and CD players;
(d) a minimum of one visit per month and a maximum of two per month, in rooms equipped in such a way that no objects may be handed over; a ban on visits by persons other than family members, a cohabitant or a lawyer, unless exceptional permission has been granted; after the regime has been in force for six months, one telephone call per month, lasting no more than ten minutes, to family members, who are required to go to the prison nearest their place of residence;
(e) interviews with lawyers, which are unlimited, are subject only to visual surveillance by a warder; telephone calls are subject to the same conditions regarding frequency and practical arrangements as calls to family members;
(f) monitoring of all the prisoner’s correspondence except for that with members of parliament or the appropriate European and national judicial authorities (the contents of the envelope are checked in the prisoner’s presence but the correspondence itself is not read);
(g) restrictions on acquiring or receiving from outside prison sums of money and other possessions and items (two parcels per month, weighing a maximum of 10 kg, plus two parcels a year containing only clothing and linen);
(h) ban on being elected as a prisoners’ representative;
(i) access by ministers of faiths other than catholicism may be permitted.
42. Having regard to the reform introduced by Law no. 279 of 2002 and to the decisions of the Court (see, most recently, the judgment in Ganci v. Italy, no. 41576/98, §§ 19-31, ECHR 2003XI), the Court of Cassation, in a departure from its previous case-law, held that prisoners had an interest in obtaining a decision even if the period of validity of the impugned decree had expired, as the decision had a direct impact on decrees subsequent to the one in question (Court of Cassation, First Division, judgment of 26 January 2004, deposited with the registry on 5 February 2004, no. 4599, Zara).
43. Under the terms of sections 13 and 14 of Law no. 354 of 1975, the treatment of each prisoner must be adapted to the particular demands of his or her personality. The number of inmates in each prison and in each wing of the prison must be limited in order to facilitate individually tailored treatment. The assignment of prisoners to a particular prison or their grouping within a prison wing must be decided with reference to the possibility of rehabilitation and the need to prevent prisoners from exerting a negative influence on one another.
44. On the basis of the principle of individually tailored treatment of prisoners laid down in the above provisions and of the regulation implementing Law no. 354 of 1975, circular no. 3479/5929 of 9 July 1998 issued by the Prison Administration Department provided for three levels of detention corresponding to certain categories of prisoner.
45. “High-security units” are designed for prisoners accused or convicted of membership of a mafia-type criminal organisation, false imprisonment with a view to extortion, or drug trafficking. In view of the danger posed by these persons and the risk of their seeking to recruit or intimidate others, particularly stringent measures are put in place aimed at separating them from other prisoners and keeping them under supervision. In addition, activities for these prisoners such as outdoor exercise, visits, vocational training and sport take place within a predefined area.
46. “Medium-security units” are for prisoners accused or convicted of offences committed with a view to facilitating the activities of mafia-type criminal organisations, and who therefore present a substantial degree of danger.
47. “E.I.V. units” are for prisoners who present a degree of danger such that their detention in a medium-security unit would be inadequate to ensure public order and safety. The danger posed by these prisoners stems in particular from their involvement in terrorist crime, the nature or number of the crimes committed, their attempts at escape or serious acts of violence perpetrated by them against other prisoners or prison officers. Under the terms of circular no. 3479/5929, in the absence of any specific provisions governing the matter, E.I.V. units are run along the same lines as the highsecurity units. Contact with prisoners in other units is prohibited and supervision is particularly tight.
48. The Recommendation reads as follows:
“The Committee of Ministers, under the terms of Article 15.b of the Statute of the Council of Europe,
Having regard to the European Convention on Human Rights and the case law of the European Court of Human Rights;
...
Stressing that the enforcement of custodial sentences and the treatment of prisoners necessitate taking account of the requirements of safety, security and discipline while also ensuring prison conditions which do not infringe human dignity and which offer meaningful occupational activities and treatment programmes to inmates, thus preparing them for their reintegration into society;
...
Recommends that governments of member States:
– be guided in their legislation, policies and practice by the rules contained in the appendix to this recommendation, which replaces Recommendation No. R (87) 3 of the Committee of Ministers on the European Prison Rules;
...
Appendix to Recommendation Rec(2006)2
Basic principles
1. All persons deprived of their liberty shall be treated with respect for their human rights.
2. Persons deprived of their liberty retain all rights that are not lawfully taken away by the decision sentencing them or remanding them in custody.
3. Restrictions placed on persons deprived of their liberty shall be the minimum necessary and proportionate to the legitimate objective for which they are imposed.
...
18.2 In all buildings where prisoners are required to live, work or congregate:
...
24.1 Prisoners shall be allowed to communicate as often as possible by letter, telephone or other forms of communication with their families, other persons and representatives of outside organisations and to receive visits from these persons.
24.2 Communication and visits may be subject to restrictions and monitoring necessary for the requirements of continuing criminal investigations, maintenance of good order, safety and security, prevention of criminal offences and protection of victims of crime, but such restrictions, including specific restrictions ordered by a judicial authority, shall nevertheless allow an acceptable minimum level of contact.
...
24.4 The arrangements for visits shall be such as to allow prisoners to maintain and develop family relationships in as normal a manner as possible.
...
24.10 Prisoners shall be allowed to keep themselves informed regularly of public affairs by subscribing to and reading newspapers, periodicals and other publications and by listening to radio or television transmissions unless there is a specific prohibition for a specified period by a judicial authority in an individual case.
...
25.2 This regime shall allow all prisoners to spend as many hours a day outside their cells as are necessary for an adequate level of human and social interaction.
25.3 This regime shall also provide for the welfare needs of prisoners.
...
27.1 Every prisoner shall be provided with the opportunity of at least one hour of exercise every day in the open air, if the weather permits.
...
27.3 Properly organised activities to promote physical fitness and provide for adequate exercise and recreational opportunities shall form an integral part of prison regimes.
27.4 Prison authorities shall facilitate such activities by providing appropriate installations and equipment.
27.5 Prison authorities shall make arrangements to organise special activities for those prisoners who need them.
27.6 Recreational opportunities, which include sport, games, cultural activities, hobbies and other leisure pursuits, shall be provided and, as far as possible, prisoners shall be allowed to organise them.
...
29.2 The prison regime shall be organised so far as is practicable to allow prisoners to practise their religion and follow their beliefs, to attend services or meetings led by approved representatives of such religion or beliefs, to receive visits in private from such representatives of their religion or beliefs and to have in their possession books or literature relating to their religion or beliefs.
...
39. Prison authorities shall safeguard the health of all prisoners in their care.
...
51.1 The security measures applied to individual prisoners shall be the minimum necessary to achieve their secure custody.
...
51.4 Each prisoner shall then be held in security conditions appropriate to these levels of risk.
51.5 The level of security necessary shall be reviewed at regular intervals throughout a person’s imprisonment.
Safety
52.1 As soon as possible after admission, prisoners shall be assessed to determine whether they pose a safety risk to other prisoners, prison staff or other persons working in or visiting prison or whether they are likely to harm themselves.
52.2 Procedures shall be in place to ensure the safety of prisoners, prison staff and all visitors and to reduce to a minimum the risk of violence and other events that might threaten safety.
...
53.1 Special high security or safety measures shall only be applied in exceptional circumstances.
53.2 There shall be clear procedures to be followed when such measures are to be applied to any prisoner.
53.3 The nature of any such measures, their duration and the grounds on which they may be applied shall be determined by national law.
53.4 The application of the measures in each case shall be approved by the competent authority for a specified period of time.
53.5 Any decision to extend the approved period of time shall be subject to a new approval by the competent authority.”
VIOLATED_ARTICLES: 6
8
VIOLATED_PARAGRAPHS: 6-1
NON_VIOLATED_ARTICLES: 3
6
NON_VIOLATED_PARAGRAPHS: 6-1