CASE OF CARSON AND OTHERS v. THE UNITED KINGDOM

Preliminary objection dismissed (non-exhaustion of domestic remedies);Preliminary objection allowed (non-exhaustion of domestic remedies);No violation of Art. 14+P1-1

Christos Rozakis;Dean Spielmann;Françoise Tulkens;Giovanni Bonello;Ineta Ziemele;Isabelle Berro-Lefèvre;Jean-Paul Costa;Josep Casadevall;Karel Jungwiert;Lech Garlicki;Ledi Bianku;Luis López Guerra;Mihai Poalelungi;Mirjana Lazarova Trajkovska;Nicolas Bratza;Päivi Hirvelä;Peer Lorenzen;Renate Jaeger;Simon Brown;Zdravka Kalaydjieva

PERSON was born in DATE . She spent most of her working life in GPE , paying ORG contributions ( NICs ) in full , before emigrating to GPE in DATE . DATE she paid further NICs on a voluntary basis ( see paragraph CARDINAL below ) .

In DATE she became eligible for a basic State pension of MONEY ( GBP ) DATE . Her pension has remained fixed at this rate since DATE . Had her pension benefited from uprating in line with inflation , it would now be worth GBP CARDINAL per week ( see paragraphs CARDINAL - CARDINAL below ) .

PERSON brought domestic proceedings challenging the refusal to uprate her pension ( see paragraphs QUANTITY - CARDINAL below ) .

Mr PERSON was born in DATE . He spent DATE working in GPE , paying NICs in full . He emigrated to GPE on his retirement in DATE and became eligible for a State pension in DATE . His basic State pension was then ORG CARDINAL.CARDINAL per week , and it has remained fixed at that level since DATE . Had his State pension benefited from uprating since DATE it would now be worth GBP CARDINAL per week .

PERSON was born in DATE . She spent DATE working in GPE , paying NICs in full , before emigrating to GPE in DATE . She became eligible for a reduced State pension in DATE . Her basic State pension was then GBP CARDINAL per week , and it has remained fixed at that level since DATE .

PERSON was born in DATE . She spent DATE working in GPE , paying NICs in full , before retiring in DATE . She became eligible for a State pension in DATE , and emigrated to GPE in DATE , at which point her ORG pension had increased to GBP DATE . It has remained fixed at that level , whereas the current uprated pension is worth GBP MONEY ( see paragraph CARDINAL below ) .

Mr PERSON was born in DATE . He spent DATE working in GPE , paying NICs in full , before retiring in DATE . He became eligible for a State pension in DATE , and emigrated to GPE in DATE , when his DATE State pension was GBP CARDINAL . It has remained fixed at that level since DATE . Had it benefited from uprating , it would now be worth approximately GBP CARDINAL per week .

Mr PERSON was born in DATE . He spent DATE working in GPE , paying NICs in full , before emigrating to GPE in DATE . He became eligible for a State pension in DATE . His basic State pension was then GBP DATE , and it has remained fixed at that level since DATE . Had his State pension benefited from uprating , it would now be worth approximately GBP CARDINAL per week .

Mr Doyle was born in DATE . He spent DATE working in GPE , paying NICs in full , before retiring in DATE and emigrating to GPE in DATE . He became eligible for a State pension in DATE . His basic State pension was then ORG DATE , and it has remained fixed at that level since then . Had it benefited from uprating , it would now be worth MONEY per week .

Mr PERSON was born in DATE . He spent DATE working in GPE , paying NICs in full , before retiring and emigrating to GPE in DATE . He became eligible for a State pension in DATE . His basic State pension was then GBP DATE , and it has remained fixed at that level since then . Had his State pension benefited from uprating , it would now be worth MONEY per week .

Mr Dancer was born in DATE . He spent DATE working in GPE , paying NICs in full , before emigrating to GPE in DATE . He became eligible for a State pension in DATE . His basic State pension was then GBP DATE , and it has remained fixed at that level . Had it benefited from uprating , it would now be worth MONEY CARDINAL per week .

PERSON was born in GPE in DATE ; it appears that she remains an NORP national . She lived and worked in GPE DATE , paying NICs in full , before returning to GPE in DATE . She made further NICs for DATE , and became eligible for a GPE pension in DATE . Her basic State pension was then GBP CARDINAL per week . DATE and DATE she spent CARDINAL her time in GPE . During this period , her pension was increased to GBP CARDINAL.CARDINAL per week , which included an uprating of the basic State pension . When she returned to GPE , her pension returned to the previous level , that is a basic State pension of ORG CARDINAL per week . Her pension has remained at this level subsequently .

Mr PERSON was born in DATE . His contribution record in the GPE qualified him for a full basic ORG pension in DATE . He emigrated to GPE in DATE , at which point his State pension had increased to GBP CARDINAL per week . Save for DATE when he returned to GPE ( during which time his pension was increased to take into account DATE upratings ) , his State pension has remained fixed at that level since DATE . Had his State pension benefited from uprating , it would now be worth approximately GBP CARDINAL per week .

Mr PERSON was born in DATE . He spent DATE working in GPE , paying NICs in full , and became eligible for a State pension in DATE . In DATE he emigrated to GPE . His basic ORG pension was then worth ORG CARDINAL a week , and it has remained fixed at that level . Had it benefited from uprating , it would now be worth approximately GBP CARDINAL per week .

PERSON was born in DATE . She spent DATE working in GPE DATE , paying NICs in full , before emigrating to GPE in DATE . She became eligible for a State pension in DATE . Her basic State pension was then GBP CARDINAL per week , and it has remained fixed at that level .

In DATE PERSON brought proceedings by way of judicial review to challenge the failure to uprate her pension , relying on LAW No . CARDINAL taken alone and in conjunction with LAW .

In a judgment dated CARDINAL DATE ( R ( Carson ) v. Secretary of ORG [ DATE ] EWHC CARDINAL ( Admin ) ) , the first - instance judge , PERSON , dismissed PERSON application for judicial review .

Applying the principles he drew from the case - law of the ORG , the judge found that the pecuniary right that fell to be protected by LAW had to be defined by the domestic legislation that created it . He found that , by the operation of the domestic legislation , PERSON had never been entitled to an uprated pension , so that there could be no breach of LAW No . CARDINAL taken in isolation .

The matter nonetheless fell within the ambit of LAW No . CARDINAL and the judge therefore had to consider whether PERSON had suffered discrimination contrary to the provisions of LAW . The ORG initially contended that country of residence was not a prohibited ground of discrimination under LAW , but this objection was subsequently withdrawn . The judge , however , dismissed PERSON claim on the ground that she was not in a comparable position to pensioners in countries attracting uprating . The differing economic conditions in each country , including local social security provision and taxation , made it impossible simply to compare the amount in sterling received by pensioners . Moreover , even if the applicant could claim to be in an analogous position to a pensioner in GPE or a country where uprating was paid subject to a bilateral agreement , the difference in treatment could be justified .

PERSON appealed to ORG , which dismissed her appeal on DATE ( R ( Carson and PERSON ) v. Secretary of ORG for Work and Pensions [ DATE ] EWCA Civ CARDINAL ) . For similar reasons to ORG , ORG ( PERSON , Laws and PERSON ) found that , since LAW No . CARDINAL conferred no right to acquire property , the failure to uprate PERSON pension gave rise to no violation of that provision taken alone .

As to the complaint under LAW in conjunction with LAW No . CARDINAL , ORG noted that the Secretary of ORG accepted that place of residence constituted a “ status ” for the purposes of the LAW . However , it found that the applicant was in a materially different position to those whom she contended were her comparators . In this connection it was significant that “ the scheme of the primary legislation is entirely geared to the impact on the pension of price inflation in the GPE ” . ORG continued :

“ There is simply no inherent probability that price inflation in other countries where expatriate GPE pensioners might have made their home ( or , for that matter , any other economic factors ) will have a comparable effect on the value of the pension to such pensioners . They may do better , they may do worse . There will also , of course , be the impact of variable exchange rates . There will be , if I may be forgiven a jejune metaphor , swings and roundabouts . While I certainly do not suggest there are no principled arguments in favour of the DATE uprate being paid to those in Ms Carson ’s position , it seems to me inescapable that its being awarded across the board to all such pensioners would have random effects . A refusal by government to put in place a measure which would produce such effects ( which in the end is all that has happened here ) can not be said to stand in need of justification by reason if it is being compared with the clear and certain effects of the uprate for GPE - resident pensioners . ”

ORG also considered , in the alternative , the question of justification and found that the “ true ” justification of the refusal to pay the uprate was that PERSON and those in her position “ had chosen to live in societies , more pointedly economies , outside GPE where the specific rationale for the uplift may by no means necessarily apply ” . ORG thus considered the decision to be objectively justified without reference to what they accepted would be the “ daunting cost ” of extending the uprate to those in PERSON position . Moreover , the cost implications were “ in the context of this case a legitimate factor going in justification for the Secretary of ORG ’s position ” , because to accept PERSON arguments would be to lead to a judicial interference in the political decision as to the deployment of public funds which was not mandated by LAW DATE , the jurisprudence of this ORG or by a “ legal imperative ” which was sufficiently pressing to justify confining and circumscribing the elected Government ’s macroeconomic policies .

PERSON appealed to ORG , relying on LAW No . CARDINAL read together with LAW . Her appeal was dismissed on DATE by a majority of CARDINAL ( R ( Carson and PERSON ) v. Secretary of ORG for Work and Pensions [ DATE ] ORG CARDINAL ) .

The majority ( Lords PERSON of GPE , PERSON , PERSON of PERSON and PERSON of Gestinghope ) accepted that a retirement pension fell within the scope of LAW No . CARDINAL and that LAW was thus applicable . They further assumed that a place of residence was a personal characteristic and amounted to “ any other status ” within the meaning of LAW , and was thus a prohibited ground of discrimination . However , because a person could choose where to live , less weighty grounds were required to justify a difference of treatment based on residence than one based on an inherent personal characteristic , such as race or sex .

The majority observed that in certain cases it was artificial to treat separately the questions , firstly , whether an individual complaining of discrimination was in an analogous position to a person treated more favourably and , secondly , whether the difference in treatment was reasonably and objectively justified . In the present case , the applicant was not in an analogous position to a pensioner resident in GPE or resident in a country with a bilateral agreement with GPE . GPE pension was CARDINAL element in an interconnected system of taxation and social security benefits , designed to provide a basic standard of living for the inhabitants of GPE . It was funded partly from the NICs of those currently in employment and their employers , and partly out of general taxation . The pension was not means - tested , but pensioners with a high income from other sources paid some of it back to the ORG in income tax . Those with low incomes might receive other benefits , such as income support . The provision for index - linking was intended to preserve the value of the pension in the light of economic conditions , such as the cost of living and the rate of inflation , within GPE . Quite different economic conditions applied in other countries : for example , in GPE , where PERSON lived , although there was virtually no social security , the cost of living was much lower , and the value of the rand had dropped in DATE compared to sterling .

Lord PERSON , who gave one of the majority opinions , put the arguments as follows :

“ CARDINAL . The denial of a social security benefit to PERSON on the ground that she lives abroad can not possibly be equated with discrimination on grounds of race or sex . It is not a denial of respect for her as an individual . She was under no obligation to move to GPE . She did so voluntarily and no doubt for good reasons . But in doing so , she put herself outside the primary scope and purpose of the GPE social security system . Social security benefits are part of an intricate and interlocking system of social welfare which exists to ensure certain minimum standards of living for the people of this country . They are an expression of what has been called social solidarity or fraternité ; the duty of any community to help those of its members who are in need . But that duty is generally recognised to be national in character . It does not extend to the inhabitants of foreign countries . That is recognised in treaties such as the ORG [ ORG ( Minimum Standards ) Convention DATE ( Article CARDINAL ) and LAW .

Mr PERSON , who appeared for PERSON , accepted the force of this argument . He agreed in reply that she could have no complaint if GPE had rigorously applied the principle that GPE social security is for GPE residents and paid no pensions whatever to people who had gone to live abroad . And he makes no complaint about the fact that she is not entitled to other social security benefits like jobseeker ’s allowance and income support . But he said that it was irrational to recognise that she had an entitlement to a pension by virtue of her contributions to ORG and then not to pay her the same pension as GPE residents who had made the same contributions .

The CARDINAL feature upon which PERSON seizes as the basis of her claim to equal treatment ( but only in respect of a pension ) is that she has paid the same ORG contributions . That is really the long and the short of her case . In my opinion , however , concentration on this single feature is an oversimplification of the comparison . The situation of the beneficiaries of GPE social security is , to quote ORG in PERSON v. GPE ( DATE ) CARDINAL EHRR CARDINAL , CARDINAL , para . CARDINAL , ‘ characterised by a corpus of rights and obligations of which it would be artificial to isolate CARDINAL specific PERSON .

NORP In effect PERSON argument is that because contributions are a necessary condition for the retirement pension paid to GPE residents , they ought to be a sufficient condition . No other matters , like whether one lives in GPE and participates in the rest of its arrangements for taxation and social security , ought to be taken into account . But that in my opinion is an obvious fallacy . ORG contributions have no exclusive link to retirement pensions , comparable with contributions to a private pension scheme . In fact the link is a rather tenuous CARDINAL . ORG contributions form a source of part of the revenue which pays for all social security benefits and ORG ( the rest comes from ordinary taxation ) . If payment of contributions is a sufficient condition for being entitled to a contributory benefit , PERSON should be entitled to all contributory benefits , like maternity benefit and jobseeker ’s allowance . But she does not suggest that she is .

The interlocking nature of the system makes it impossible to extract CARDINAL element for special treatment . The main reason for the provision of ORG pensions is the recognition that the majority of people of pensionable age will need the money . They are not means - tested , but that is only because means - testing is expensive and discourages take - up of the benefit even by people who need it . So ORG pensions are paid to everyone whether they have adequate income from other sources or not . On the other hand , they are subject to tax . So the ORG will recover part of the pension from people who have enough income to pay tax and thereby reduce the net cost of the pension . On the other hand , those people who are entirely destitute would be entitled to income support , a non - contributory benefit . So the net cost of paying a retirement pension to such people takes into account the fact that the pension will be set off against their claim to income support .

None of these interlocking features can be applied to a non - resident such as Ms Carson . She pays no GPE income tax , so the ORG would not be able to recover anything even if she had substantial additional income . ( Of course I do not suggest that this is the case ; I have no idea what other income she has , but there will be expatriate pensioners who do have other income . ) Likewise , if she were destitute , there would be no saving in income support . On the contrary , the pension would go to reduce the social security benefits ( if any ) to which she is entitled in her new country .

ORG and private pensions

It is , I suppose , the words ‘ insurance’ and ‘ ORG which suggest an analogy with a private pension scheme . But , from the point of view of the citizens who contribute , ORG contributions are little different from general taxation which disappears into the communal pot of the consolidated fund . The difference is only a matter of public accounting . And although retirement pensions are presently linked to contributions , there is no particular reason why they should be . In fact ( mainly because the present system severely disadvantages women who have spent time in the unremunerated work of caring for a family rather than earning a salary ) there are proposals for change . Contributory pensions may be replaced with a non - contributory ‘ citizen ’s pension’ payable to all inhabitants of this country of pensionable age . But there is no reason why this should mean any change in the collection of ORG contributions to fund the citizen ’s pension like all the other non - contributory benefits . On PERSON argument , however , a change to a non - contributory pension would make all the difference . Once the retirement pension was non - contributory , the foundation of her argument that she had ‘ PERSON the right to equal treatment would disappear . But she would have paid exactly the same ORG contributions while she was working here and her contributions would have had as much ( or as little ) causal relationship to her pension entitlement as they have DATE .

Parliamentary choice

For these reasons it seems to me that the position of a non - resident is materially and relevantly different from that of a GPE resident . I do not think , with all respect to my noble and learned friend , Lord PERSON , that the reasons are subtle and arcane . They are practical and fair . Furthermore , I think that this is very much a case in which ORG is entitled to decide whether the differences justify a difference in treatment . It can not be the law that GPE is prohibited from treating expatriate pensioners generously unless it treats them in precisely the same way as pensioners at home . Once it is accepted that the position of PERSON is relevantly different from that of a GPE resident and that she therefore can not claim equality of treatment , the amount ( if any ) which she receives must be a matter for ORG . It must be possible to recognise that her past contributions gave her a claim in equity to some pension without having to abandon the reasons why she can not claim to be treated equally . And in deciding what expatriate pensioners should be paid , ORG must be entitled to take into account competing claims on public funds . To say that the reason why expatriate pensioners are not paid the DATE increases is to save money is true but only in a trivial sense : every decision not to spend more on something is to save money to reduce taxes or spend it on something else .

I think it is unfortunate that the argument for the Secretary of ORG placed such emphasis upon such matters as the variations in rates of inflation in various countries which made it inappropriate to apply the same increase to pensioners resident abroad . It is unnecessary for the Secretary of ORG to try to justify the sums paid with such nice calculations . It distracts attention from the main argument . Once it is conceded , as PERSON accepts , that people resident outside the GPE are relevantly different and could be denied any pension at all , ORG does not have to justify to the courts the reasons why they are paid CARDINAL sum rather than another . Generosity does not have to have a logical explanation . It is enough for the Secretary of ORG to say that , all things considered , ORG considered the present system of payments to be a fair allocation of available resources .

The comparison with residents in treaty countries seems to me to fail for similar reasons . PERSON was able to point to government statements to the effect that there was no logical scheme in the arrangements with treaty countries . They represented whatever the GPE had from time to time been able to negotiate without placing itself at an undue economic disadvantage . But that seems to me an entirely rational basis for differences in treatment . The situation of a GPE expatriate pensioner who lives in a country which has been willing to enter into suitable reciprocal social security arrangements is relevantly different from that of a pensioner who lives in a country which has not . The treaty enables the government to improve the social security benefits of GPE nationals in the foreign country on terms which it considers to be favourable , or at least not unduly burdensome . It would be very strange if the government was prohibited from entering into such reciprocal arrangements with any country ( for example , as it has with the ORG [ ORG ] countries ) unless it paid the same benefits to all expatriates in every part of the world . ”

Lord PERSON , dissenting , found that PERSON could properly be compared to other contributing pensioners living in GPE or other countries where their pensions were uprated . He continued :

“ How persons spend their income and where they do so are matters for their own choice . Some may choose to live in a country where the cost of living is low or the exchange rate favourable , a course not uncommon in previous generations , which may or may not carry with it disadvantages , but that is a matter for their personal choice . The common factor for purposes of comparison is that all of the pensioners , in whichever country they may reside , have duly paid the contributions required to qualify for their pensions . If some of them are not paid pensions at the same rate as others , that in my opinion constitutes discrimination for the purposes of LAW

Lord PERSON therefore considered that the appeal turned on the question of justification . He accepted that the courts should be slow to intervene in questions of macroeconomic policy . He further accepted that , had the Government put forward sufficient reasons of economic or ORG policy to justify the difference in treatment , he should have been properly ready to yield to its decision - making power in those fields . However , in the present case the difference in treatment was not justified : as ORG itself accepted , the reason all pensions were not uprated was simply to save money , and it was not fair to target the applicant and others in her position .

NORP NICs are payable by employees and the self - employed who earn income over a set limit and by employers in respect of employees earning over a set limit . It is also possible for individuals who are not liable to pay compulsory contributions , because for example they are resident outside GPE , to make voluntary contributions to protect the right to certain social security benefits . The amounts paid by employees and employers depend on income . In DATE ) , employees earning between ORG CARDINAL and GBP CARDINAL per week pay PERCENT of their income , with PERCENT paid by the employer . The basic rate for the self - employed is currently GBP CARDINAL per week and the voluntary contributions rate is GBP CARDINAL per week .

The social security benefits paid for from NICs include contribution - based jobseeker ’s allowance , incapacity benefit ( now replaced by employment and support allowance ) , maternity allowance , widow ’s benefit , bereavement benefit , retirement pensions of certain categories , child ’s special allowance and guardian ’s allowance . These benefits are financed on a “ pay as you go ” basis from NICs paid in DATE . If necessary , additional funding can be provided from money received in income tax and other forms of taxation , but this has not been necessary since DATE . NICs also partly pay for the cost of ORG .

The basic State pension is , in DATE , GBP CARDINAL per week . To qualify for a State pension , it is necessary to have reached State pension age and to have paid or been credited with ( or have a husband , wife or civil partner who has been paid or been credited with ) NICs for a sufficient number of “ qualifying years ” . GPE age is currently CARDINAL for men and CARDINAL for women . It will increase gradually for women from DATE , so that by DATE it will be CARDINAL for both sexes . At present , men need CARDINAL qualifying years by DATE to get a full basic State pension and women who reach DATE need DATE . LAW DATE reduced the number of DATE needed for a full basic State pension to CARDINAL for people who reach State pension age on or after DATE . A percentage of the full basic State pension is payable to an individual without the full number of qualifying years . To get the minimum basic State pension ( PERCENT ) it is normally necessary to have CARDINAL qualifying years .

Individuals resident in GPE who do not have sufficient qualifying DATE to entitle them to a ORG pension may be entitled to non - contributory welfare benefits , such as means - tested income support and housing benefit .

Under CARDINAL of ORG DATE , the Secretary of ORG is required to make an order DATE to increase the basic State pension to maintain its value “ in relation to the general level of prices obtaining in GPE ” .

Although the basic State pension is payable to individuals resident outside GPE , non - residents are disqualified from receiving uprated pensions . Instead , unless or until they return to live in GPE , they continue to receive GPE at the DATE rate applicable in DATE in which they emigrated or , if they emigrated before reaching retirement age , at the rate applicable in DATE in which they attained retirement age . A non - resident who returns to GPE for a short period receives the uprated pension while in GPE , but , when he returns to his country of residence , the pension reverts to its previous amount .

The exception to this rule concerns individuals who move to ORG which have concluded a bilateral reciprocal social security agreement with GPE which provides for the pensions paid to qualifying individuals to be uprated in line with GPE inflation .

States enter into bilateral agreements to provide on a reciprocal basis for wider social security cover for workers and their families moving between the party countries than is available under national legislation alone . Each results from negotiations between GPE , taking into account the scope for reciprocity between the CARDINAL social security schemes . In all cases the agreement establishes the social security scheme which is to be applied to persons moving from CARDINAL country to work in the other . Generally , the scheme applicable is that of the country of employment . Whether a reciprocal social security agreement with another country is entered into depends on various factors , among them the numbers of people moving from CARDINAL country to the other , the benefits available under the other country ’s scheme , how far reciprocity is possible and the extent to which the advantages to be gained by an agreement outweigh the additional expenditure likely to be incurred by each ORG . Where an agreement is in place , the flow of funds may differ depending on the level of each country ’s benefits and the number of people going in each direction .

Of the bilateral agreements entered into by GPE which cover more than liability for contributions , nearly all cover retirement pensions and widow’s / bereavement benefits . The majority also cover sickness , incapacity and maternity benefits . Some cover unemployment and child benefits . Where access to a benefit covered by the agreement is dependent on contributions , the agreement generally provides for aggregation of the contributions paid in each country . Each country then calculates a pro - rata pension based on contributions made in that country . Where access to a benefit depends on a period of residence , the agreement is likely to provide for residence in CARDINAL country to count as residence in the other . Where benefit is paid in CARDINAL country taking account of residence / contributions in the other , there is usually a provision for reimbursement of the former by the latter . Not all reciprocal agreements to which GPE is a party , therefore , involve the payment of pension uprating to GPE expatriates .

GPE has reciprocal social security agreements providing for pension uprating with all LOC ( GPE and with GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE and GPE , GPE , GPE , GPE , GPE , GPE and GPE . Residents of the ORG countries and the countries listed above who qualify for a GPE pension receive the same level of uprating as GPE residents ; the uprating is based on the rate of inflation in GPE and no regard is paid to inflation in the country of residence .

All the above agreements were concluded DATE , and from DATE onwards the agreements were to fulfil earlier commitments made by ORG . Since DATE , the ORG ’s policy has been that future reciprocal agreements should normally be limited to resolving questions of liability for social security contributions . Agreements with GPE , GPE and GPE came into force in DATE , DATE and DATE respectively , but these did not require payment of uprated pensions . The agreement with GPE was terminated by GPE as from DATE , because of the refusal of GPE to pay uprated pensions to its pensioners living in GPE .

During the passage of the Pensions Bill through ORG in DATE , amendments tabled in both ORG , calling for uprating to be paid to all expatriate pensioners , were defeated by large majorities . According to the Government , it would cost MONEY ( MONEY ) to pay the backdated claims to uprating of all GPE pensioners resident abroad in “ frozen ” countries together with an ongoing DATE bill of MONEY ( PERCENT of the GBP MONEY spent in total by GPE in DATE on pensions ) .

Article CARDINAL of the DATE ORG ( Minimum Standards ) Convention ( “ the DATE LAW ” ) provides that a benefit to which a protected person would otherwise be entitled in compliance with the DATE LAW ( including old - age benefit ) may be suspended , in whole or in part , by national law as long as the person concerned is absent from the territory of the ORG concerned . The above provision is echoed in DATE NORP Code of ORG and LAW ( f ) of the DATE ORG ( Revised ) .

Part IV of the DATE LAW concerning the Establishment of an International System for the Maintenance of Rights in ORG envisages that equal treatment of the nationals of the Contracting Parties in respect of social security rights , including the retention of benefits arising out of social security legislation whatever the movements the persons protected might undertake between GPE , may be secured by the conclusion of appropriate bilateral and multilateral agreements . Bilateral agreements are the most utilised method of coordination of social security laws and vary greatly in both personal and material scope . Some bilateral agreements cover only nationals of the Contracting Parties , while others apply to any person who has been covered by the social security systems of CARDINAL of the Contracting Parties . They sometimes cover both contributory and non - contributory benefits ; sometimes they are confined to contributory benefits only .

In DATE a ORG initiative to draw up a new framework agreement for the coordination of social security schemes within the member GPE , to enable in particular the export of benefits throughout ORG , was abandoned when it became clear that most countries preferred to maintain the present system of bilateral agreements ( see CM(CARDINAL)CARDINAL , paragraph CARDINAL , DATE ) .


Preliminary objection rejected (non-exhaustion);No violation of Art. 5-1;No violation of Art. 5-4

Having been extradited from GPE to GPE , Mr PERSON was released from prison on DATE ; he currently resides in GPE .

On DATE the ORG sentenced him in absentia to DATE imprisonment , having convicted him of , inter alia , attempted rape and attempted murder committed on DATE .

By a judgment of CARDINAL DATE , which became final DATE , ORG , also giving judgment in absentia , reduced the prison sentence to DATE ; the accused had been declared untraceable ( irreperibile ) and then to be evading arrest ( latitante ) .

Pursuant to LAW of DATE , ORG and ORG itself granted the applicant , on DATE and CARDINAL DATE , remission of sentence amounting to a total of DATE .

In DATE GPE requested the GPE authorities to extradite the applicant . This request was refused following an unfavourable opinion from ORG ( Arrondissementsrechtbank ) of DATE ; the GPE court took the view that the applicant ’s right to defend himself had not been respected .

In DATE GPE made a similar request to GPE , where PERSON was then staying .

On DATE the judgment of CARDINAL DATE and the warrant for his arrest as a convicted person ( ordine di carcerazione di condannato ) issued by the principal public prosecutor at ORG on CARDINAL DATE , together with an official NORP translation of those documents , were served on the applicant by a bailiff in accordance with LAW of DATE ( " LAW " ) and the NORP extradition treaty of DATE . The bailiff ’s writ stated that the applicant would be detained with a view to his extradition .

On DATE PERSON had been arrested in GPE on suspicion of aggravated theft and attempted theft committed in that country ; the following day an GPE investigating judge had remanded him in custody in respect of these charges .

The investigating judge revoked his detention order on DATE , but the applicant remained in custody in connection with the extradition proceedings ( see paragraph CARDINAL above ) .

On DATE ORG sentenced him to DATE imprisonment for the offences committed in GPE . This judgment was upheld by ORG , whose judgment of DATE became final DATE .

By a letter of CARDINAL DATE the Minister of ORG informed the applicant that , on account of the period that he had spent in detention since DATE ( see paragraph CARDINAL above ) , the prison term was to be deemed to have been completed on DATE .

Following a favourable opinion from the indictments chamber ( PERSON ) of ORG on DATE , on CARDINAL May the GPE Minister of Justice authorised PERSON extradition to GPE .

On DATE the applicant asked the Minister to reconsider his decision and to stay the execution of the extradition order in the meantime . He invoked the opinion of ORG of DATE ( see paragraph CARDINAL above ) .

On DATE he requested the Minister to confirm in writing that he had stated during a meeting with the applicant ’s lawyer on DATE that he was prepared to grant an application for a stay of execution of the extradition order .

On DATE the Minister replied to him that the extradition was a matter for the NORP authorities , who might possibly withdraw their request . He advised the applicant to apply to those authorities without delay in that connection , adding that , if the applicant so requested , he could stay the execution of the extradition order ; the duration of such a measure could not however exceed a reasonable time .

By letter of DATE PERSON again asked the Minister of Justice to stay the execution of the extradition decision . In support of his request he provided statements from various witnesses , according to which he had been in GPE on DATE , the date of the offences for which he had been convicted in GPE .

The Minister contacted the NORP authorities . He drew their attention to the applicant ’s version of events and asked them to state whether they wished to maintain their extradition request .

On DATE the Director of the GPE extraditions department replied to the above query in the affirmative . He stressed that if there was any new evidence it could serve as the basis for an application for retrial of the case ( Article CARDINAL of LAW ) .

On DATE the Minister sent to the applicant a copy of this letter , notifying him that the extradition procedure would be continued as soon as it was no longer necessary to keep him at the disposal of the NORP authorities for the offences committed in GPE ( see paragraph CARDINAL above ) .

On DATE PERSON wrote to PERSON to ask him to obtain from ORG ’s GPE office information which he had himself unsuccessfully sought from the NORP consulate general in GPE .

As a result the Minister instructed the GPE public prosecutor ’s office to determine the accuracy of the applicant ’s claims concerning his CARDINAL - time presence in GPE ( see paragraph CARDINAL above ) .

A message from ORG to ORG of DATE indicated that the NORP police had questioned the applicant on DATE when he had been in custody in GPE in connection with alleged forgery , attempted theft and receiving stolen goods . He had stated that he had entered GPE on DATE and that it was the first time that he had visited the country . In DATE his wife had affirmed that she had herself arrived in the country on DATE and that her family had lived for a long time near GPE . However , another NORP national , probably residing in the GPE , had maintained in DATE that the couple were living in GPE at the time and that the applicant had visited him on several occasions . A NORP police- officer claimed to remember PERSON but could not certify that he had seen him on DATE .

The text of the message was transmitted to the GPE criminal police on DATE ; on CARDINAL DATE the principal public prosecutor ’s office of that town sent to the Minister of ORG a report on the information obtained from ORG .

In the meantime PERSON , having been advised orally that his extradition could take place on DATE , submitted an application for his release to the committals chamber ( Raadkamer ) of ORG on DATE , founded essentially on the alleged unlawfulness of such a measure .

By an order of DATE the committals chamber declared the application inadmissible ; the applicant appealed immediately , relying on Articles CARDINAL , CARDINAL and CARDINAL para . CARDINAL ( article CARDINAL , article CARDINAL , article DATE ) of the LAW . In addition , he requested the Minister of ORG , again on DATE , to stay the execution of the extradition order pending a final decision on his application of DATE . On DATE the Minister sent by telex instructions to this effect to the principal public prosecutor ’s office in GPE . The applicant ’s lawyer was notified of this by telephone .

On DATE the indictments chamber of ORG confirmed the order of DATE on the ground , inter alia , that it was not empowered to order the applicant ’s release . It noted that the fourth subsection of LAW , which provided for the possibility of applying to the investigating authorities for release , ceased to apply once the detainee had been placed at the disposal of the Government with a view to extradition . It added that the provisions of the ORG cited by PERSON did not in themselves confer on it jurisdiction to rule on the matter .

On DATE ORG dismissed the applicant ’s appeal filed on DATE . It found that no grounds had been validly and usefully submitted and took the view that the indictments chamber had complied with the essential procedural requirements or the formalities whose disregard entailed nullity and that its decision was lawful .

On DATE the applicant filed an urgent application with the President of ORG seeking an order prohibiting his extradition , which , he contended , would be contrary to Articles CARDINAL para . CARDINAL , CARDINAL and DATE ( article DATE , article CARDINAL , article CARDINAL ) of the Convention on account , inter alia , of the incompatibility of the proceedings conducted against him in GPE with the Convention ; he requested further his immediate release on the ground that his detention was also unlawful for the reasons which his lawyer had given before the indictments chamber of ORG on DATE ( see paragraph CARDINAL above ) .

By a letter of CARDINAL DATE the Minister of ORG drew the attention of the GPE principal public prosecutor ’s office to the desirability of staying the execution of the extradition order until a final decision had been given on PERSON application .

The NORP State filed its submissions on DATE ; PERSON submitted his at a hearing held on DATE .

On DATE the President of ORG found that it was not necessary to make an urgent ruling . He noted that under the first paragraph of LAW he was empowered to give " a provisional ruling where he [ recognised ] that there was urgency , in all matters except those which are excluded by law from the competence of the courts " and that , according to academic writers and the case - law , this jurisdiction extended to cases of unlawful acts by the authorities ( onrechtmatige overheidsdaad ) . In the present case , however , the contested detention did not represent such an act because it had been lawfully and properly ordered in the context of extradition proceedings in accordance with LAW DATE and the NORP - Italian extradition treaty of DATE . As far as the extradition was concerned , the President considered that it was not for him to determine whether the applicant ’s conviction by ORG had infringed the Convention . He added that the applicant could , as the Director of the GPE extraditions department had pointed out ( see paragraph CARDINAL above ) , file an application for a retrial if the conditions set out in Article CARDINAL of LAW were satisfied .

After ORG had served this order on PERSON , the latter filed an appeal against it by a document lodged with the registry of ORG on DATE . By a letter registered on DATE he requested that the case be heard at DATE .

The NORP State filed its submissions on DATE , but the proceedings remained pending . The NORP lawyer appointed to represent the applicant had withdrawn his services pending payment of an advance . His client claimed that he was not in a position to pay , but he had not informed the authorities of this and had not requested legal aid .

By a letter from his lawyer , dated CARDINAL DATE , the applicant informed the Minister of ORG that he no longer opposed his extradition in view of the length of the proceedings instituted both at national and international level , and that he waived his right to rely on the undertaking not to hand him over to GPE pending the outcome of the appeals lodged in GPE .

DATE PERSON was extradited to GPE . He was released from prison there on DATE under an amnesty .


Mr PERSON is a NORP national and lives in GPE . He obtained his diploma in medicine in DATE and has since practised mostly as an assistant doctor ( GPE ) , for which activity he does not require an authorisation in GPE .

On DATE he received the authorisation to practise independently in the canton . The authorisation was , however , withdrawn by ORG ) on DATE on the ground that , having moved to another canton , he had not used it .

The applicant lodged an administrative appeal ( PERSON ) which ORG ( NORP ) of GPE rejected on CARDINAL DATE for the following reasons : the possibility that a new authorisation would be granted as soon as he returned to GPE was not sufficient to confer on the applicant a legally protected interest ; in any event the authorisation in question was not of general validity , but related to a specific activity ; as it was , Mr PERSON no longer lived in the GPE .

From DATE to CARDINAL DATE the applicant worked as an assistant doctor in the emergency service of LOC ( Ärztlicher Notfalldienst des Ärzteverbandes des Bezirks Zurich ) .

On DATE he fetched a partially paralysed patient from a private old peoples’ home and took her back to her flat , where he treated her . Shortly afterwards he drew up a bill on an emergency service form for MONEY and sent it to the guardian ( gesetzlicher PERSON ) of the patient , who had been placed in guardianship on a temporary basis on DATE . The sum in question was to be paid directly into the applicant ’s post office account and not that of the medical association .

A prosecution was subsequently brought against Mr Kraska for fraud and various infringements of ORG ; in particular it was alleged that he had treated the patient without being in possession of an authorisation to practise medicine independently as was required under section CARDINAL para . CARDINAL ( a ) of that Act .

ORG ( Bezirksgericht ) acquitted him on DATE , finding inter alia that the indictment had not indicated in sufficiently specific terms the medical treatment involved .

In the meantime , on DATE , the applicant had attempted to obtain a new authorisation . On DATE ORG had refused his request on the ground that he was not " trustworthy " within the meaning of section CARDINAL para . CARDINAL of LAW .

On DATE ORG dismissed the applicant ’s appeal . It took the view that he had infringed section CARDINAL para . CARDINAL ( a ) of the LAW by submitting a bill for the treatment in question and that his acquittal by ORG made no difference in this respect . ORG noted in particular that in his bill the applicant had himself classified the treatment as medical acts .

In an appeal ( Beschwerde ) to ORG ( Verwaltungsgericht ) the applicant again sought the authorisation to practise his profession independently . The court dismissed his appeal on CARDINAL DATE . It also directed that he should wait until DATE before re - applying .

By a memorial of CARDINAL pages Mr PERSON ’s lawyer lodged with ORG ( PERSON ) a public - law appeal ( staatsrechtliche Beschwerde ) , on which CARDINAL judges deliberated at a public hearing on DATE ( section CARDINAL para . CARDINAL of LAW ) . The applicant ’s lawyer was present in the courtroom , but was not allowed to address the court . Judge PERSON submitted his report ; Judge Y , who did not in fact have the status of co - rapporteur attributed to him at paragraph CARDINAL of the Commission ’s opinion , stated that he was unable to accept the conclusions of the report and proposed a solution contrary thereto . During the discussion which followed , a third judge put forward a counter proposal , which was adopted by the majority .

In a letter to his client , the lawyer described the course of the deliberations . According to him , Judge PERSON had proposed that the applicant ’s public - law appeal should be allowed in full and that he should be granted the authorisation to practise . Judge Y had stated that he had been irritated by the length of the memorial , of which he had been able to read TIME or so pages , and had complained that it had not been possible for him to study the file because , owing to an error on the part of the registry , he had not received it until DATE before the hearing ; he had then called for the dismissal of the appeal , basing his view exclusively on the above - mentioned decisions of DATE , DATE and CARDINAL DATE ( see paragraphs CARDINAL above ) .

ORG gave judgment on DATE . By CARDINAL votes to CARDINAL , that of Judge PERSON , it quashed the decision in so far as it imposed a waiting period on the applicant but dismissed the remainder of the appeal .

It first declared a number of the applicant ’s complaints inadmissible . It stated , nevertheless , that in cases of this kind , in the event of the appeal ’s succeeding , it could by way of exception not only quash the contested decision , but also grant the authorisation sought , if all the other conditions were satisfied .

ORG then noted that , according to its case - law , the right to freedom of commerce and industry , guaranteed by LAW , embraced the right to practise medicine on a professional basis .

Having examined the criticisms levelled by the health authorities , it formed the opinion that CARDINAL of them appeared material to assessing the applicant ’s honesty : he had carried out a medical act without the necessary authorisation ; in addition , the bill relating thereto dealt with both medical and non - medical acts and he had drawn it up on an emergency service form , thereby giving the impression that it concerned only the former .

On DATE ORG of the GPE of GPE granted Mr PERSON ’s third application for a new authorisation .

On DATE Mr PERSON requested ORG to re - examine its judgment of CARDINAL DATE , complaining that it had given its decision without sufficient knowledge of the file .

His application was dismissed on DATE on the ground , inter alia , that there was no legal basis for reopening the proceedings . ORG summarised the contested deliberations as follows :

" On the occasion of the public deliberations CARDINAL judge expressed his dissatisfaction that the documents had not been available for a sufficiently long time ( they had been sent first to a substitute judge ) ; he had therefore been able to read thoroughly only the first CARDINAL pages of the - much too long - appeal memorial which comprised CARDINAL pages . "

Mr PERSON subsequently filed CARDINAL other applications for the reopening of the proceedings in ORG ; they were dismissed on DATE and CARDINAL DATE and on DATE .


Preliminary objection joined to merits and dismissed (non-exhaustion of domestic remedies);Violation of Art. 3 (substantive aspect);Violation of Art. 13;Remainder inadmissible;Non-pecuniary damage - award

Angelika Nußberger;Dean Spielmann;Elisabet Fura;Ganna Yudkivska;Karel Jungwiert;Mark Villiger

The applicants were born in DATE and DATE and live in GPE and PERSON respectively .

The applicants were detained in GPE prison pending their trial . Mr PERSON was detained in the period between DATE and DATE and PERSON in the period DATE and DATE .

Ljubljana prison is the third largest prison in GPE . It holds sentenced prisoners , remand prisoners and prisoners in administrative detention . It has an official capacity of CARDINAL inmates , which includes CARDINAL places designated for prisoners on remand , who by law must be held in a separate section of the prison . In principle there are CARDINAL types of cells in which the prisoners are held . Small cells measuring QUANTITY ( QUANTITY including the sanitary annex ) and normally containing CARDINAL sleeping places , and large cells measuring QUANTITY ( QUANTITY including the sanitary annex ) and normally containing CARDINAL sleeping places . The windows of the cells face either west or east . Remand prisoners are held on the ground floor , which contains QUANTITY small and CARDINAL large cells , and on the first floor , which has CARDINAL cells , including QUANTITY small and QUANTITY large cells . On the second floor , which contains CARDINAL cells , CARDINAL of which are large cells , both remand prisoners and sentenced prisoners are held . In the loft , which contains QUANTITY large cells , only sentenced prisoners seem to be held .

According to the ORG , plans for constructing the new prison to replace PERSON prison were in progress . However , completion depended on financial resources and no definite date could be given .

The applicants were both detained in cell no . CARDINAL , which was situated on the first floor .

The cell , with a ceiling QUANTITY high , measured QUANTITY . It was equipped with CARDINAL bunk beds with a total of CARDINAL sleeping places , CARDINAL large and CARDINAL small table , CARDINAL chairs and a set of cupboards for each of the detainees . The cell had CARDINAL windows measuring QUANTITY each , which the prisoners were free to open and close . According to the applicants , CARDINAL prisoners were held in the cell in the period of their detention . The Government , however , submitted that the number varied DATE .

The cell had no artificial ventilation . It was aired by opening the windows and , also , opening the doors in DATE when the detainees were out . During DATE , the detainees were also allowed to bring in ventilators , but they rarely did so . The cell was also equipped with a functioning radiator , which the detainees were free to regulate .

The applicants were allowed to bring in a small TV or , with the approval of the prison governor , radios or other electronic devices . In addition , they could borrow books from the prison library and read them in their cells .

According to the data provided by the ORG , the average temperature in the cells in the late afternoon ( TIME ) in DATE and DATE was CARDINAL oC , exceeding CARDINAL oC on DATE .

The applicants received their meals in their cell .

A sanitary annex , measuring QUANTITY , was attached to cell no . CARDINAL . It was a room with floor - to - ceiling walls and a door , equipped with CARDINAL basin with warm and cold water , a toilet , a drain and a mirror . It had a functioning artificial ventilation system .

The applicants had access to the shower room situated on the same floor and containing CARDINAL showers with partitions . According to the Government , the applicants could use the shower for TIME every day in accordance with the DATE schedule .

Detergents and products for personal hygiene were distributed to the detainees on a DATE basis . Their bed linen was washed once DATE and they were given a clean blanket on arrival at the prison . Regular everyday cleaning and thorough DATE cleaning was carried out by the prisoners under the supervision of the prison staff .

In the remand section of the prison the cells were locked throughout DATE . The applicants could leave the cell only for scheduled activities , such as visits , phone calls , exercising , cleaning , etc .

According to the information supplied by the ORG , the applicants were allowed to spend by average TIME and a CARDINAL out of their cell per day . In particular , they could spend TIME per day in the outside yard , which measured QUANTITY and was not covered by any roof . It was usually used by CARDINAL prisoners at a time . In addition , they could use a recreation room , measuring QUANTITY , twice a week for TIME and also for TIME every third DATE . This room was equipped with CARDINAL benches , CARDINAL exercise mats and some weights . The room had natural light . It was usually used by CARDINAL prisoners simultaneously .

A medical office operated in the prison subject to the general regime of the national health - care system . It was open for TIME , CARDINAL times a week . A dental - care office was open DATE for TIME . A psychiatric clinic was open DATE for DATE . The prison also employed CARDINAL psychologists . All detainees underwent a medical examination upon their arrival . Detainees who were using intravenous drugs received vaccinations against hepatitis B following the standard protocol used in such cases .

The prison provided the detainees with the possibility to undergo testing for hepatitis B and C and HIV . In DATE CARDINAL detainees were tested . CARDINAL were diagnosed with Hepatitis C ; other tests were negative , but CARDINAL person was diagnosed with PERSON .

According to the prison records , none of the applicants required special medical treatment . Mr ORG , however , visited the medical office CARDINAL times , including CARDINAL visits to a psychiatrist . He also received dental care . PERSON only underwent a general medical examination upon arrival at the prison .

DATE ( PERSON ) reads as follows :

“ No one may be subjected to torture , or inhuman or degrading punishment or treatment . ... ”

LAW ( Zakon o kazenskem postopku , Official Gazette no . CARDINAL/CARDINAL with amendments ) regulates , inter alia , the right of a remand prisoner to a TIME recreation in the open air and the regime of visits , correspondence and other contact with the outside world . It reads , in the relevant part , as follows :

“ ( CARDINAL ) A remand prisoner shall have the right to an uninterrupted rest of TIME within TIME . In addition to the above he must be given at least a twohour recreation in the open air every day .

“ ( CARDINAL ) With the authorisation of the investigating judge who is conducting the investigation and under his supervision , ... , within the limits of FAC , a remand prisoner may be visited by his close relatives and , upon his / her request , also by doctors and others . Certain visits may be prohibited if they might be to the detriment of the [ criminal ] proceedings .

( CARDINAL ) A remand prisoner may have correspondence with other persons outside prison . If required ... the investigating judge ... may order the verification of items of correspondence ... ”

The Regulation on the Execution of Remand ( PERSON o izvrševanju pripora , ORG no . CARDINAL/CARDINAL with amendments ) regulates the treatment of remand prisoners in more detail .

Section CARDINAL lays down rules for the allocation of remand prisoners . It states that a person whose detention on remand is ordered by the GPE or ORG should be placed in GPE prison . Until DATE , when the ORG was amended ( Official Gazette no . MONEY ) , it had provided that if the prison in which the remand prisoner was to be placed under the aforementioned rule was overcrowded , the court could order the placement of the remand prisoner in another facility with available space . The prison governors were then under obligation to send information concerning occupancy levels to the presidents of GPE ’s district courts .

Other relevant provisions of the Regulation on the Execution of Remand read as follows :

( CARDINAL ) Sleeping quarters of remand prisoners may be single or shared , with CARDINAL beds , exceptionally more if so required because of the lack of space in a prison . ”

“ ( CARDINAL ) Within TIME of admittance to prison , every remand prisoner shall be examined by a doctor ...

( CARDINAL ) NORP If , upon the admittance of a remand prisoner , there is a reasonable suspicion that he is physically injured or has a contagious disease , he must immediately be examined by a prison doctor . ”

“ ( CARDINAL ) A remand prisoner who is taken ill or injured shall be given medical assistance in a prison health clinic .

( CARDINAL ) If a remand prisoner needs to undergo medical treatment in a medical institution outside the prison , such treatment shall be ordered by a competent court on the proposal of a prison doctor .

“ ( CARDINAL ) As a rule , close relatives may visit a remand prisoner once a week .

( CARDINAL ) The Prison Rules may provide for more frequent visits by close relatives , but not CARDINAL visits a week .

( CARDINAL ) At the request of a remand prisoner , the competent court may allow visits by other persons as well .

“ To contact persons outside the prison , a remand prisoner may use a prison telephone at his own expense . The Prison Rules shall lay down the times when calls may be made and their duration .

The Rules concerning Remand Prisoners in ORG ( Hišni red o izvrševanju pripora v zavodu za prestajnje zapora GPE , adopted on DATE ) regulate the regime in the remand section of the prison in more detail . They provide , in so far as relevant :

“ ( CARDINAL ) As a rule , cells occupied by remand prisoners are kept locked ...

“ ( CARDINAL ) ORG prisoners shall spend time in the open air in the recreation yard in accordance with the DATE schedule . The time spent in the open air shall be organised in groups and shall be in CARDINAL parts , with each group spending TIME in TIME in TIME in the open air . Sports and recreational activities may be practised in the recreation yard .

( CARDINAL ) The prison shall provide an opportunity for remand prisoners to use the recreation room CARDINAL times a week , in accordance with the DATE schedule . ”

“ Remand prisoners shall shower in shared bathrooms DATE . ”

“ ( CARDINAL ) All meals shall be served to remand prisoners in their cells in accordance with the DATE schedule . ...

“ ( CARDINAL ) Visits to remand prisoners shall take place on DATE and at times determined in the DATE schedule .

( CARDINAL ) ORG prisoners who receive visits from close family members very rarely because they live a long way away may request an extension of the period allowed for visits and also a change of the day assigned for visits , which shall be permitted by the prison governor , who shall also take into consideration the space available in the prison . ”

“ ( CARDINAL ) Remand prisoners shall be allowed to make telephone calls in telephone booths located in the remand section of the prison . Remand prisoners may call people outside the prison DATE . The timetable for telephone calls by remand prisoners is determined in the DATE schedule . Remand prisoners shall be allowed to use telephone for TIME . Requests to make telephone calls shall be made to a guard during the TIME roll - call . ”

The Daily Schedule ( dnevni red ) is annexed to the rules and determines the timetable of activities in the remand section of the prison .

Since DATE , ORG o zdravstvenem varstvu in zdravstvenem zavarovanju , ORG no . CARDINAL/CARDINAL with amendments ) provides for sentenced prisoners and prisoners on remand to be insured and therefore included in the public health system . They can exercise their rights under LAW with certain exceptions . For example , they can not choose their own general practitioner but are , as regards general health care , limited to the medical service provided in the prison establishment . However , the prisoners are also entitled to medical services for which other insured persons have to pay a supplementary insurance .

The relevant provisions of LAW read as follows :

( CARDINAL ) For the purpose of guaranteeing safety , order and discipline or the successful and economical conduct of criminal proceedings , the competent court may transfer a remand prisoner from CARDINAL prison to another at the proposal of the governor of the prison in which the remand prisoner is placed . ”

“ ( CARDINAL ) The indictment shall be served on an accused person who is at liberty without delay ; if the person is on remand it shall be served within TIME following its receipt .

( CARDINAL ) NORP If detention is ordered for the accused person by a decision of the panel ( Section CARDINAL ) the accused person shall , at the time of imprisonment , be served an indictment together with a decision ordering detention .

( CARDINAL ) If an accused person who has been deprived of liberty is not in any of the prisons in the territory of the court at which the main hearing should be held , the president of the panel shall order the accused person to be brought immediately to such a prison , where he shall be served the indictment . ”

The relevant provisions of the Regulation on the Execution of Remand provide :

“ An accused person whose detention has been ordered shall be transferred by the prison governor on the basis of an order issued by the president of the panel referred to in the third paragraph of LAW of the ZKP . In the prison located in the territory of the court where the main hearing will be held , the remand prisoner shall be placed in a cell for remand prisoners .

In the prison referred to in the preceding paragraph , a protected person must be separated from other remand prisoners and sentenced prisoners in accordance with the instructions of the unit . ”

“ For the purpose of guaranteeing safety , order and discipline , for reasons of overcrowding or to secure the successful and economical conduct of criminal proceedings , a remand prisoner may be transferred from CARDINAL prison to another . The transfer may be temporary or for the whole duration of the detention .

The competent court shall decide on the said transfer at the proposal of the prison governor .

The written proposal referred to in the preceding paragraph shall contain the reasons for the transfer . The competent court shall decide on the proposal by an order which shall be served on the remand prisoner , the prison in which the remand prisoner is on remand and the prison to which the remand prisoner has been transferred .

LAW ( Zakon o upravnem sporu , Official Gazette no . CARDINAL/CARDINAL with amendments ) provides in so far as relevant :

“ ( CARDINAL ) In an administrative dispute the court shall also decide on the legality of individual acts and actions by which the authorities infringe the human rights and fundamental freedoms of an individual if no other judicial protection is provided .

( CARDINAL ) NORP If actions of public authorities are challenged in an administrative dispute , the provisions of this Act referring to the challenging of an administrative act shall apply . ”

( CARDINAL ) For the reasons referred to in the preceding paragraph , the plaintiff may also request the issue of an interim order for the provisional regulation of the situation with regard to the disputed legal relationship , if such regulation , in particular in still existing legal relationships , proves necessary .

( CARDINAL ) The interim order referred to in the preceding paragraphs shall be issued by the court competent for the decision on the dispute

( CARDINAL ) The court shall decide on the request for the issue of an interim order within CARDINAL ( DATE following the receipt of the request ...

( CARDINAL ) The parties may lodge an appeal against the decision referred to in the preceding paragraph within CARDINAL ( DATE . The appeal shall not stay the execution of the issued interim order . The competent court shall decide on the appeal against the decision without delay , but DATE after receiving the appeal . ”

( CARDINAL ) A claim may be filed against the violation of human rights and fundamental freedoms under LAW seeking :

– to annul , issue or amend an individual act ,

– to declare that an action infringed a human right or fundamental freedom of the plaintiff ,

– to prohibit further action ,

– to undo the consequences of an action . ”

“ ( CARDINAL ) In the administrative dispute referred to in the first paragraph of LAW the court may establish the illegality of an act or action , prohibit the continuation of an individual action , decide on the plaintiff ’s request for compensation for damage and order whatever is necessary to eliminate the infringement of human rights and fundamental freedoms and restore lawfulness .

( CARDINAL ) The court shall decide without delay on putting an end to the continuation of actions , and on measures aimed at restoring lawfulness if an unlawful action is still ongoing ; an appeal is admissible against the decision within DATE . The ORG shall adjudicate on the appeal within CARDINAL ( DATE following its receipt .

( CARDINAL ) If the court can not decide without delay in the case referred to in the preceding paragraph , it may issue an interim order of its own motion in accordance with section CARDINAL of this Act . ”

According to ORG decision of DATE ( no . Up-CARDINAL/CARDINAL ) , the conditions for admission of a claim to an ORG on the basis of the first paragraph of section CARDINAL of LAW are as follows : it must allege a violation of a human right or fundamental freedom ; there must be a causal link between the violation and the action of the state body ; the result of the action must be unlawful hindrance or limitation of the enjoyment of the human right or fundamental freedom or the prevention of such an enjoyment ; there should be no other judicial protection available ; and the victim must lodge an action for protection from such unlawful action ( ibid . , § CARDINAL ) .

The relevant parts of LAW ( PERSON zakonik , ORG , no . CARDINAL/CARDINAL with amendments ) read as follows :

“ ( CARDINAL ) Every person shall have the right to request the court or any other competent authority to order the termination of an action infringing the integrity of the human personality , private and family life , or any other personal right , to prevent such action or remedy its consequences .

( CARDINAL ) The court or another competent authority may order that the offender terminate his or her action , failing which he or she may be obliged to pay the injured party a certain amount assessed in total or with regard to a unit of time . ”

“ ( CARDINAL ) For physical pain endured , for psychological anguish resulting from a general loss of the ability to perform life functions , disfigurement , defamation ( injuring a person ’s good name and reputation ) , or infringement of personal freedom or personal rights , or for the death of a next - of - kin , and for fear experienced , the injured party may , if it is established that the circumstances of a case , and in particular the degree of pain and fear and their duration , justify it , be awarded just monetary compensation irrespective of any compensation for material damage , and even if there is no material damage .

( CARDINAL ) The amount of compensation for non - pecuniary damage shall depend on the importance of what was at stake and the objective of such compensation ; it should , however , not nurture aspirations that are not consistent with its nature and objective . ”

Section CARDINAL.d of LAW provides :

“ ( CARDINAL ) Supervision of the treatment of remand prisoners is carried out by the president of a district court .

( CARDINAL ) The president of the court or any other judge appointed by the president must visit the remand prisoners at least once per week and must , in the absence of prison guards if necessary , ask them about their treatment . He is required to take the necessary steps to resolve any irregularities observed during the visit . The judge appointed should not be the investigating judge .

( CARDINAL ) A president of a court and an investigating judge may visit a remand prisoner at any time , talk to him and hear complaints . “

The relevant extracts from the CARDINALnd ORG by ORG for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment ( ORG ) ( ORG ( CARDINAL ) CARDINAL ) read as follows :

“ CARDINAL . Overcrowding is an issue of direct relevance to the ORG ’s mandate . All the services and activities within a prison will be adversely affected if it is required to cater for more prisoners than it was designed to accommodate ; the overall quality of life in the establishment will be lowered , perhaps significantly . Moreover , the level of overcrowding in a prison , or in a particular part of it , might be such as to be in itself inhuman or degrading from a physical standpoint .

A satisfactory programme of activities ( work , education , sport , etc . ) is of crucial importance for the well - being of prisoners ... [ P]risoners can not simply be left to languish for DATE , possibly DATE , locked up in their cells , and this regardless of how good material conditions might be within the cells . The ORG considers that one should aim at ensuring that prisoners in remand establishments are able to spend a reasonable part of DATE ( TIME or more ) outside their cells , engaged in purposeful activity of a varied nature ...

Specific mention should be made of outdoor exercise . The requirement that prisoners be allowed TIME of exercise in the open air every day is widely accepted as a basic safeguard ... It is also axiomatic that outdoor exercise facilities should be reasonably spacious ...

Ready access to proper toilet facilities and the maintenance of good standards of hygiene are essential components of a humane environment ...

The ORG would add that it is particularly concerned when it finds a combination of overcrowding , poor regime activities and inadequate access to toilet / washing facilities in the same establishment . The cumulative effect of such conditions can prove extremely detrimental to prisoners . ”

The CPT ’s CARDINALth ORG ( ORG ( CARDINAL ) CARDINAL ) contains the following passage :

“ CARDINAL . As the ORG pointed out in DATE ORG , prison overcrowding is an issue of direct relevance to the ORG ’s mandate ( cf . ORG ( CARDINAL ) CARDINAL , paragraph CARDINAL ) .

An overcrowded prison entails cramped and unhygienic accommodation ; a constant lack of privacy ( even when performing such basic tasks as using a sanitary facility ) ; reduced out - of - cell activities , due to demand outstripping the staff and facilities available ; overburdened health - care services ; increased tension and hence more violence between prisoners and between prisoners and staff . This list is far from exhaustive .

The ORG has been led to conclude on CARDINAL occasion that the adverse effects of overcrowding have resulted in inhuman and degrading conditions of detention ... ”

NORP The CPT ’s CARDINALth General Report ( ORG ( DATE ) CARDINAL ) provides :

“ CARDINAL . The phenomenon of prison overcrowding continues to blight penitentiary systems across LOC and seriously undermines attempts to improve conditions of detention . The negative effects of prison overcrowding have already been highlighted in previous ORG ...

In a number of countries visited by the ORG , particularly in central and eastern LOC , inmate accommodation often consists of large - capacity dormitories which contain all or most of the facilities used by prisoners on a DATE basis , such as sleeping and living areas as well as sanitary facilities . The ORG has objections to the very principle of such accommodation arrangements in closed prisons and those objections are reinforced when , as is frequently the case , the dormitories in question are found to hold prisoners under extremely cramped and insalubrious conditions ...

Large - capacity dormitories inevitably imply a lack of privacy for prisoners in their everyday lives ... All these problems are exacerbated when the numbers held go beyond a reasonable occupancy level ; further , in such a situation the excessive burden on communal facilities such as washbasins or lavatories and the insufficient ventilation for so many persons will often lead to deplorable conditions . ”

The ORG visited PERSON prison in DATE and DATE . During its most recent visit in DATE the ORG visited the remand section of GPE prison .

NORP In DATE the number of prisoners held in the prison was CARDINAL prisoners , which is significantly lower than it is currently ( see document ORG ( CARDINAL ) CARDINAL ) . Following the visit in DATE , the following recommendations were made to the NORP authorities ( ORG DATE ) CARDINAL ) :

“ ii . NORP Ljubljana prison

NORP ... the ORG reiterates its recommendation that efforts be made to reduce to a maximum of CARDINAL the number of prisoners held in the cells measuring CARDINAL m² , and to accommodate CARDINAL prisoner in each cell measuring CARDINAL m² . ”

Following the visit in DATE , the following observations were made to the NORP authorities in respect of the remand section of GPE prison ( ORG ( DATE ) CARDINAL ) :

“ CARDINAL . The objective of DATE follow - up visit to ORG was to examine measures taken by the NORP authorities aimed to implement the ORG ’s recommendations with respect to remand prisoners . It should be stated from the outset that the ORG is concerned by the lack of progress as regards remand prisoners’ conditions of detention .

With an official capacity of CARDINAL , the remand section of the PERSON prison was accommodating CARDINAL persons ( including CARDINAL juveniles ) at the time of the visit [ the whole establishment was accommodating CARDINAL prisoners ( with an official capacity of CARDINAL ) ] . Prisoners continued to be accommodated under cramped conditions , with generally CARDINAL persons in CARDINAL m² cells and CARDINAL persons in cells measuring CARDINAL m² ( including the sanitary annexe ) . Naturally , this situation had negative repercussions for all aspects of life , both for prisoners and staff . The ORG calls upon the NORP authorities to implement its long - standing recommendation to reduce cell occupancy rates at GPE prison . Cells measuring CARDINAL ORG should not accommodate CARDINAL prisoners , and the CARDINAL m² cells should preferably not accommodate CARDINAL prisoner .

At the time of the DATE and DATE visits , GPE prison was not in a position to offer remand prisoners anything which remotely resembled a programme of activities . Apart from TIME of daily outdoor exercise and access to a recreation room twice a week , the vast majority of those prisoners spent TIME a day confined to cramped cells , their only distraction being watching television , listening to the radio or reading books or newspapers . Regrettably , the situation observed in DATE was hardly any different . The only positive developments concerned increased access to the recreation room ( TIME sessions CARDINAL times a week ) and the installation of a table tennis table in the exercise yard . CARDINAL prisoners were provided with work and CARDINAL had access to education . The ORG reiterates its recommendation that the NORP authorities intensify their efforts to develop a programme of activities for remand prisoners at GPE prison . As stressed by ORG in previous visit reports , the aim should be to ensure that those prisoners are able to spend a reasonable part of DATE outside their cells engaged in purposeful activities of a varied nature ( work ; education ; sport ; recreation / association ) ...

In respect of remand prisoners , the ORG is pleased that the NORP authorities have implemented its recommendation made in the DATE visit report , enabling remand prisoners to receive open visits from their relatives ( e.g. without a glass partition ) . However , material conditions in the visiting facilities at GPE prison remained unsatisfactory ; especially , they offered little privacy to inmates and visitors and were insufficient for the number of prisoners held .

At all the establishments visited , sentenced prisoners had adequate access to telephones . The situation was less favourable in respect of remand prisoners . Although entitled to a CARDINAL-minute conversation DATE , a number of them complained that their calls were in practice shorter . The ORG reiterates the recommendation made in the DATE visit report ( paragraph CARDINAL , ORG ( DATE ) CARDINAL ) that the NORP authorities seek ways of improving opportunities for telephone contact for remand prisoners . ”

According to the DATE reports issued by ORG , the remand section of GPE prison held on average QUANTITY remand prisoners in DATE ( DATE Report , CARDINAL . DATE ) and CARDINAL remand prisoners in DATE ( DATE Report , p. CARDINAL ) .

In the chapter concerning the living conditions in NORP prisons , the reports include information on prison overcrowding . The rate of overcrowding is calculated on the basis of the domestic statutory requirement for the imprisonment of sentenced individuals , which is QUANTITY for a single occupancy cell and QUANTITY per person in a shared cell . According to the DATE and DATE reports nationwide prison occupancy exceeded the official capacity by CARDINAL and PERCENT respectively . Almost all closed prison facilities accommodating male prisoners were overcrowded . The PERSON prison was the most overcrowded prison in GPE in DATE and DATE . With an official capacity of CARDINAL prisoners , it held CARDINAL and CARDINAL prisoners in DATE and DATE respectively . This meant that the level of overcrowding was CARDINAL and PERCENT respectively ( DATE ORG , pp . CARDINAL and CARDINAL ; DATE Report , pp . CARDINAL and CARDINAL ) . According to ORG , the level of overcrowding in DATE and DATE was CARDINAL and CARDINAL percent respectively ( p. CARDINAL ) . These figures include both sentenced and remand prisoners .

The DATE Report noted that in respect of GPE prison the maximum number of prisoners allowed was set at CARDINAL ; if this number was exceeded the prison administration was required to institute a transfer procedure ( p. CARDINAL ) . The report also noted ( p. CARDINAL ) :

“ ... Poor living conditions are coupled with overcrowding , which is most present in the large prisons in GPE , GPE , GPE and GPE . The urgency of improving living conditions has been stressed by ORG the ORG and other institutions .

... It is understandable that such living conditions adversely affect ORG hygiene and privacy . Poor living conditions sometimes also obstruct the exercise of ORG rights ( work , exercise and recreation , religious ceremonies ) . In some establishments , prisoners on remand live in worse conditions than sentenced prisoners . The outdated and inadequate furniture in living rooms and other areas presents an additional problem ... ”

On DATE and DATE the ORG conducted a visit to GPE prison in her capacity as a “ national preventive mechanism ” under LAW to LAW and other Cruel , Inhuman or Degrading Treatment or Punishment ( “ the LAW ” ) . The report published following the visit reads as follows :

“ Official capacity is still CARDINAL prisoners . This includes CARDINAL places designated for prisoners on remand , CARDINAL places for sentenced prisoners and CARDINAL places for prisoners in administrative detention . On DATE of the visit , the prison held CARDINAL prisoners ( CARDINAL prisoners on remand , CARDINAL sentenced prisoners and CARDINAL prisoners in administrative detention ) . The official capacity was therefore exceeded by PERCENT .

... the prison administration has replied that in the present circumstances all realistic possibilities for reducing the occupancy level have been exhausted ... ORG has also warned that the conditions are unacceptable and the Government should be aware of the problem ... As regards the information about the construction of a new prison , the prison administration has stated that it is not realistic to expect the construction to be completed in a short time ...

We are therefore not surprised that in all the cells the number of beds has only increased since our last visit ...

... In the light of the critical overcrowding and all the consequences which relate to it , we consider the conditions unacceptable .

The prison still does not have a special drug - free unit . ... The prison administration said that in the current overcrowding conditions it is impossible to organise such a unit . The administration estimated that PERCENT of the prison population have drugrelated problems . ...

Smoking is allowed only in the cells , whereas the prison does not have permanent smoking or non - smoking cells . Efforts are made to separate the smoking and nonsmoking prisoners , but due to overcrowding this is often very difficult or impossible . ...

Prisoners on remand are locked in their cells for on average TIME a day . The only everyday activity outside cells is exercise in the small internal courtyard ... However , a roof has still not been constructed to allow the use of the courtyard in bad weather as well . This has not been improved due to lack of financial means . Other activities which allow remand prisoners to spend time out of their cells include fitness ( twice a week ) , visits ( TIME ) , use of telephone ( TIME twice a week ) , short visits to the prison shop ( CARDINAL times a week ) and showering ( TIME ) . The remand prisoners are also allowed to participate in general cleaning on DATE , which is welcomed , but insufficient .

Our request to allow remand prisoners to spend more time out of their cells was rejected by the prison administration with the explanation that special conditions do not in principle allow for this . ... ”

In her report concerning her activities under LAW in DATE , ORG also noted :

“ The problem of overcrowding in prisons is one of the most critical and complex problems in the area of enforcing criminal sanctions , especially when it comes to detention on remand . It seems that virtually everything that was possible was done to resolve this problem , by means of the reasonable transfer of prisoners between prisons or their departments .

A critical point has obviously been reached when it will be necessary to consider more systemic solutions if the country is to meet its [ domestic and international ] obligations at all ...

With regard to remand detainees a presumption of innocence applies and therefore it is wrong that they serve the measure imposed in an even worse situation than sentenced persons who are serving a prison sentence . In addition to poor material conditions , the overcrowding has an impact on several other aspects of serving and executing detention ( problems with organising activities , access to showers , providing an escort outside the institution when necessary , etc . ) . ”

As regards the temperatures in the cells , the following was noted in the DATE report of ORG :

“ ... During the visit to PERSON prison the official capacity was exceeded by almost CARDINAL percent ... At the time of the visit it was ... typically DATE weather , therefore the air in the cells was hot and humid . On DATE of the visit ( DATE ) we measured , at TIME , QUANTITY in some cells . By using their own ventilators and by means of putting shades on the windows , the prisoners tried to lessen the effect of the scorching ... heat , as their rooms were locked and the air could not circulate . We considered that the living conditions , as observed by us during DATE , were inhuman . ”


David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Stanislav Pavlovschi

The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE . He was represented before ORG , solicitors in GPE . ORG ( “ the Government ” ) were represented by their Agent , PERSON of ORG .

The facts of the case , as submitted by the parties , may be summarised as follows .

The applicant ’s wife died on DATE . On DATE , the applicant made a claim for widows’ benefits . On DATE , the applicant was informed that his claim had been disallowed as he was not a woman . On DATE the applicant made a request for reconsideration . On DATE his claim was reconsidered but the decision remained unchanged . On an unspecified date the applicant appealed . On DATE the appeal tribunal confirmed the previous decision . The applicant applied for a further reconsideration and on CARDINAL DATE he was advised that he was not entitled to widows’ benefits .

The applicant did not appeal further as he considered or was advised that such a remedy would be bound to fail since no such social security benefit was payable to widowers under GPE law .

The domestic law relevant to this application is set out in Runkee and White v. GPE , no . CARDINAL , § § CARDINAL , DATE .