No violation of Art. 8;Remainder inadmissible

Alvina Gyulumyan;David Thór Björgvinsson;Egbert Myjer;Elisabet Fura;Isabelle Berro-Lefèvre;Jean-Paul Costa

The applicant was born in DATE and lives in GPE . She is married to T.

On DATE she went to ORG , in GPE , together with her mother and a NORP lawyer , to request anonymous registration of the forthcoming birth of her child ( accouchement sous X ) .

She was admitted to the maternity ward on DATE , and on DATE she gave birth to a girl , PERSON , from an extramarital relationship with PERSON .

On DATE she had an interview lasting DATE with the social services , in the presence of her mother and a nurse who had been asked to act as an interpreter by the hospital . On DATE she signed a record of the child ’s placement in State care in accordance with LAW CARDINAL - CARDINAL of ORG , handing over a folder intended for the child , which contained a letter , photographs and administrative documents .

In the record she indicated that she wished to have the child taken into ORG care , to request secrecy and to give her consent to adoption under LAW . She stated that the child was born out of wedlock and was not recognised by the father .

The section entitled “ Reasons for the placement ” contained the following details :

“ [ The applicant ] wishes to keep secret the reasons why she is giving her child up for adoption . She would prefer to hand us the attached documents , which will be released to the child at her request on reaching the age of majority ( letter , photos , official documents ) . Secrecy has been requested purely to ‘ protect her baby’ from the violent and unbalanced biological father . ”

The section entitled “ Information on the placement ” stated :

“ We have informed her of the following : ...

( CARDINAL ) PERSON - limits and conditions for return of the child :

– a child who is claimed back within DATE by the parent who entrusted the child to ORG will be returned to that parent without any further formalities ( Article L. CARDINAL - CARDINAL , paragraph CARDINAL , of ORG ) .

– if the child has a second parent who did not entrust him or her to the service and who claims the child back within DATE , the child will be returned to that parent without any further formalities ( same Article ) .

– once these periods have expired ( DATE if the sole parent or both parents entrusted the child to the service ; DATE if the second parent did not entrust the child to the service ) , an application for judicial review of the child ’s placement in ORG care may be lodged , within DATE from the date of the formal registration , with the tribunal de grande instance ( Article L. CARDINAL - CARDINAL of ORG ) .

– beyond these time - limits :

* if the child has been placed for adoption , any application to have the child returned will be inadmissible ( Article CARDINAL of LAW ) ...

( CARDINAL ) Conditions for withdrawal of consent to adoption ( LAW , paragraphs CARDINAL and CARDINAL , of LAW )

We have given her the following :

– a notice setting out the effects of placement in ORG care and of consent to adoption and the conditions for recovery of the child and withdrawal of consent ;

– a model letter requesting the return of the child and/or withdrawing consent to adoption , if consent has been given . ”

On DATE ( DATE ) the applicant gave her consent to the child ’s adoption . The form of consent stated , inter alia :

“ I ... certify that I have been informed :

NORP about the effects of consent to adoption , namely :

– that the placement is secret ,

– that I forfeit all my rights over the child ,

– that placement for adoption constitutes a bar to any recognition , declaration of filiation or application for recovery .

NORP that this document will become ORG after a period of DATE , on DATE , and that during this period the child may be returned to me in accordance with the prescribed procedures for withdrawal of consent ( Article CARDINAL - CARDINAL , paragraphs CARDINAL and CARDINAL , of LAW ) .

I hereby declare that I formally consent to the adoption of my child ... , leaving the choice of the adopter to ORG .

I acknowledge that I have received :

– a notice setting out the time - limits and conditions for the return of my child ,

– a model letter for withdrawal of consent to adoption and to the record of the child ’s placement in ORG care . ”

On DATE the applicant had a further interview lasting DATE with the social services , in the presence of a doctor acting as an interpreter , during which , at her request , various matters relating to the record signed DATE were discussed .

On DATE , after approval had been given by ORG , the chairman of the ORG council , as the official guardian of children in ORG care , placed PERSON in the care of PERSON and PERSON with effect from that date with a view to her full adoption .

In the meantime , PERSON , the child ’s biological father , had applied to ORG for recognition of his rights over the child . In decisions of DATE and CARDINAL and DATE ORG directed that the adoption process in GPE should not proceed any further , that the name and a photograph of the child were to be sent to PERSON and that its decisions were to be forwarded to the ORG département council and the NORP social services .

On DATE and DATE the applicant went to the hospital ’s maternity ward and subsequently to the NORP social services , seeking the return of the child . According to a note drawn up by the social services , her request was based on CARDINAL reasons : firstly , the biological father had learned of the child ’s birth in the meantime and had brought an action in GPE , and secondly , she had managed to persuade her husband to recognise the child . Her request was refused because the DATE time - limit for withdrawing consent had expired .

The applicant then applied to the GPE tribunal de grande instance , seeking the annulment of the decision to give the child up and an order for her return . She submitted that the consent she had given on DATE had been invalid on account of the family pressure exerted on her and because she had not realised the consequences of registering the birth anonymously , since the process had been explained to her without an interpreter being present . She argued that NORP law contravened Articles CARDINAL and CARDINAL of the Convention .

The child ’s biological father , PERSON , intervened in the proceedings .

In a judgment of DATE the court dismissed the applicant ’s claims , holding as follows :

“ In support of her application for the annulment of the decision to give up the child born on DATE and for the child ’s return , PERSON alleges that an error was committed as to the meaning and scope of the document of DATE .

PERSON , an NORP national living and working in GPE , came to the maternity ward in GPE to give birth on DATE . On that occasion she expressed the wish for her admission and her identity to be kept secret .

The exercise by any woman of this right , which is enshrined in LAW and which the legislature has to date had no intention of reconsidering , is governed by the provisions of LAW , as amended by LAW of DATE .

It appears from the evidence before the court ... that CARDINAL lengthy interviews were held in order to explain to this woman the conditions and effects of anonymous registration of a birth . These interviews took place in the presence of NORP speakers , and PERSON , who chose to come to GPE to give birth , can not expect the social services to have offered anything more in this respect , particularly not the presence of an official interpreter , which is not provided for or required by any statutory instrument . Furthermore , it appears from the proceedings ... and from the written submissions summarising her counsel ’s address ... that PERSON was taken to hospital by a lawyer ; she had therefore clearly sought legal advice prior to the birth .

Accordingly , no matter what psychological state the applicant may have been in , like any woman opting to give birth in these circumstances , it appears that PERSON was nevertheless fully aware of both the immediate and the future implications of her actions and decisions . She thus acted quite consciously in having the birth registered anonymously and giving the child up to the social services to be taken into ORG care , and there are no grounds for arguing that her intellectual faculties were impaired or that the consent was invalid in any way ; moreover , the question of consent is not applicable from a civil - status perspective .

In addition , as regards the formal propriety of the document of DATE , once a child is entrusted to the social services , the latter assume a number of obligations , including the provision of information ... It appears from the record of the child ’s placement , which contains entries whose existence is not disputed , that the social services fulfilled their obligation to provide information on a child ’s placement in ORG care and the ensuing legal effects . Such information was , moreover , provided in LANGUAGE , and the notice and model letter requesting the return of the child were indeed given to PERSON . Furthermore , PERSON fully understood the meaning and scope of this information since she left documents for the child in the event that the latter expressed the wish to discover her origins at a future date .

PERSON clearly expressed her wish that the child should never be able to have legal ties to her . Moreover , she did not withdraw her consent within DATE . It should be noted in this connection that this right is strictly personal ; accordingly , no action by a third person may be treated as an action to withdraw consent , that being the sole prerogative of the mother , or interrupt the relevant period .

Accordingly , there are no grounds for declaring null and void the record of DATE , which served as an entirely valid basis for the placement in ORG care ( first provisionally and later with final effect ) of the child born on DATE with no established parentage ...

Since the mother did not apply for the return of the child within DATE after giving her up , the child , who has no legally established parentage , was able to be placed with foster parents by the ORG authorities with a view to her adoption under LAW .

Such placement for adoption , by virtue of the provisions of LAW , constitutes a bar not only to the return of the child to the mother but also to any declaration of filiation or recognition . The first ground of appeal must therefore be declared ineffective .

PERSON further alleges a violation of ORG and CARDINAL of LAW .

As stated above , PERSON gave birth ... while wishing to keep the birth and her identity secret , a right enshrined in LAW and given effect by ORG .

More generally , these ORG govern the conditions for giving up a child , for consent to adoption or for anonymous registration of a birth , as well as the conditions and procedures applicable in the event of repudiation and/or withdrawal of any of these measures .

They strike a delicate balance between the rights of a mother , which the legislature has to date had no intention of reconsidering , to give birth anonymously with the consequences that entails , and the rights of the foster parents and of the child , whose rights are now framed in such a way as to allow him or her access to more information , if he or she so desires , but in whose interests stability and certainty , both psychological and legal , must be sought , if only through the shortness of the time within which the natural parents may avail themselves of the appropriate procedures .

The instant case thus can not be said to involve any discrimination or deprivation of the enjoyment of a right secured to the mother or the child by LAW , or indeed our national law , within the meaning of LAW . Similarly , no matter how short they are , time - limits do exist in NORP law for bringing an action in the ordinary courts , constituting , within the meaning of LAW ... , an effective remedy before a national authority independent of the administrative authority that may be required to rule on an application for the return of a child or to approve an adoption . ”

The applicant appealed . In a judgment of CARDINAL DATE ORG set aside the first - instance judgment . After reiterating the content of the record of DATE , and in particular the information it provided , the court held :

“ Paragraph CARDINAL of the section on information thus expressly mentions the existence of CARDINAL time - limits for the child ’s return without any further formalities , CARDINAL being DATE ( the only possible limit that could apply in the instant case ) , the other being DATE , where the second parent has not entrusted the child to the social services .

This DATE time - limit is mentioned on CARDINAL further occasions , firstly in relation to the right to have the child returned to the second parent and secondly in indicating that even after the expiry of the DATE and DATE periods , a court action may still be brought .

This information could have misled PERSON ... since in reality the DATE time - limit applicable under LAW in the circumstances referred to in LAW did not apply in the instant case , there being no established paternity as the mother had registered the birth anonymously , and the placement therefore came under point ( CARDINAL ) of Article L. CARDINAL - CARDINAL .

PERSON , an NORP national who is a native NORP speaker and does not speak LANGUAGE , could not have known the consequences in LANGUAGE law of anonymous registration of the birth , in terms of her rights and those of the biological father , and the information given was in no way capable of enlightening her in a clear and precise manner .

Having been informed of the existence of a DATE time - limit where ‘ the child has a second parent who did not entrust him or her to the service’ , she may legitimately have thought , in the light of the information set out in the record , that this time - limit was applicable in her case since she had on several occasions notified the local health and social services department of the existence of a biological father who had not been informed of the placement procedure .

It will be observed that there is no mention in the record that an interpreter was present when it was signed and that it has not been disputed that a member of the maternity ward staff assisted with the translation and the explanation in LANGUAGE of the information given in LANGUAGE to PERSON ... However , a translation of this nature , which was provided by a person who used LANGUAGE only occasionally and did not have specific legal knowledge , and which , moreover , was based on particularly ambiguous information as to the time - limits , did not enable PERSON ... to have access to proper information about her rights regarding the procedures for withdrawing consent .

It therefore appears that the information provided to the appellant concerning the right to have the child returned was inaccurate or at least particularly ambiguous , and was set out in a pre - printed document not specially adapted to the procedure of anonymous birth registration but designed for use in any of the circumstances covered by Article L. CARDINAL - CARDINAL of ORG for the taking of a child into ORG care ; that reference was made to a DATE time - limit not applicable in her case ; and that , moreover , being an native NORP speaker , the mother was not effectively informed of the procedures for the return of her child and of the strict DATE time - limit that applied in her case .

Furthermore , it has not been shown in any way that PERSON ... otherwise received any clear information before the record was signed as to her right to recover the child .

The note by PERSON who also drew up the record in issue – besides having no evidential value , since it was written by a party to the proceedings , does not contain any clarification as to the information given to PERSON ... about the time - limit for withdrawing consent .

Similarly , the fact that PERSON ... was in contact with a NORP lawyer prior to the birth does not mean that she received precise information from him about the exclusive nature of the DATE time - limit ...

PERSON belief ... in the possibility of recovering the child within DATE period is corroborated by the request she made in person on CARDINAL and DATE to the ORG health and social services department , citing this time - limit , and by the subsequent letters from her lawyer , which also state that his client thought that she could take her child back within such a period .

Having regard to all these considerations , it appears that PERSON ... placed her child in State care while believing – legitimately , in view of the ambiguous information she had received when signing the record of the placement – that she could take her back within DATE and that this time - limit also applied to PERSON , who had , moreover , instituted proceedings in GPE on DATE .

This error as to the time - limit for the return of the child concerns a significant element of her consent to the child ’s placement in ORG care , especially as the provisions of Article L. CARDINAL - CARDINAL of ORG Code require precise information on the subject to be given to the mother .

In these circumstances , the application for the record of the child ’s placement of DATE to be declared null and void must be allowed .

... seeing that the handing over of the child to the ORG authorities was rendered void by a lack of true consent affecting the validity of the record drawn up on DATE , the child ’s placement in ORG care is to be retrospectively annulled and can not therefore have any legal effect .

Accordingly , the application for the child to be returned to PERSON ... should be allowed , without there being any need to address the subsidiary arguments she submitted in support of that application .

Pursuant to Article CARDINAL - CARDINAL of ORG , parental ties shall be established between PERSON ... and the child to whom she gave birth in the maternity ward of ORG on DATE and a reference to this judgment shall be entered in the register of births , deaths and marriages for the town of GPE . ”

In a letter of CARDINAL DATE the applicant ’s lawyer asked the prefect to enforce the judgment and to return the child to her mother . No action was taken on this request .

The prefect for the département of ORG appealed on points of law , arguing that in the absence of recognition by the mother of the child to whom she had given birth anonymously , it was not necessary to obtain her consent for the child to be taken into ORG care .

In a judgment of DATE ORG allowed the appeal , holding as follows :

“ [ Article L. CARDINAL - CARDINAL , point ( CARDINAL ) , of ORG ] provides that children whose parentage has not been established or is unknown and who have been entrusted to ORG for DATE are deemed to have been taken into ORG care .

On DATE PERSON née PERSON ) gave birth anonymously . On DATE a record of the child ’s placement in ORG care with ORG was drawn up in accordance with Article L. CARDINAL - CARDINAL of ORG . On DATE the child was placed for adoption after ORG had given its approval on DATE . On DATE Mrs T. unsuccessfully sought to have the child returned to her . In applications of CARDINAL DATE and DATE she brought proceedings against the prefect of the département of ORG , seeking the return of the child .

In allowing her claim , ORG held that the child ’s placement with the ORG authorities was rendered void by a lack of true consent affecting the validity of the record drawn up on DATE , seeing that when the record was signed PERSON had received only ambiguous information about the period within which she could take her child back .

In so holding , despite the fact that in the absence of recognition , the child ’s parentage was not established , such that PERSON consent was not required when the child was taken into care ... , ORG breached the provision cited above . ”

ORG therefore quashed and annulled ORG judgment in its entirety and , applying Article CARDINAL , paragraph CARDINAL , of LAW ( by which it may put an end to the dispute by applying the appropriate legal rule ) , dismissed the applicant ’s claims .

The full adoption procedure , which had been suspended , was resumed by PERSON and PERSON In a judgment of DATE the GPE tribunal de grande instance allowed their application and made a full adoption order in respect of the child .

The history and development of the system of anonymous registration of births in GPE is set out in PERSON v. GPE ( [ ORG ] , no . ORG , § § DATE , ECHR CARDINAL ) .

The following provisions of ORG are relevant to the present case :

“ The following shall be taken into ORG care :

( CARDINAL ) NORP children whose parentage is not established or is uncertain and who have been entrusted to ORG for DATE ; ... ”

“ Where a child is entrusted to ORG in the circumstances referred to in Article L. CARDINAL - CARDINAL , points ( CARDINAL ) , ( CARDINAL ) , ( CARDINAL ) and ( CARDINAL ) , a record shall be drawn up .

It shall mention that the parents in respect of whom the child ’s filiation has been established , the child ’s natural mother or natural father or the person handing the child over have been informed about :

( CARDINAL ) the measures introduced , in particular by the ORG , the local authorities and the social - security bodies , to help parents to raise their children themselves ;

( CARDINAL ) the rules governing placement in ORG care in accordance with this LAW ;

( CARDINAL ) NORP the time - limits and conditions subject to which the child may be taken back by the father or mother ;

( CARDINAL ) the possibility of leaving behind any information concerning the health of the father and mother , the child ’s origins and the reasons for which and circumstances in which the child was placed with ORG .

Furthermore , where the child is entrusted to the service by the father or mother in accordance with points ( CARDINAL ) or ( CARDINAL ) of Article L. CARDINAL - CARDINAL , the parent or parents concerned must be asked to consent to the child ’s adoption ; such consent shall be noted in the record , which must also mention that the parents have been informed of the time - limits and conditions in which they may withdraw their consent , in accordance with the second and third paragraphs of LAW . ”

“ The child shall be deemed to have been provisionally taken into ORG care on the date on which the record referred to in Article L. CARDINAL - CARDINAL is drawn up . Guardianship arrangements shall be made with effect from the date of such declaration .

However , within DATE from the date of the provisional placement in ORG care , the child may be returned immediately and without any further formalities to whichever of the parents entrusted him or her to the service . This period shall be extended DATE , in the circumstances specified in Article L. CARDINAL - CARDINAL , point ( CARDINAL ) , for whichever parent did not entrust the child to the service .

Beyond these periods , the decision to agree to or refuse the return of a child in ORG care shall , subject to the provisions of LAW , be taken by the official guardian , with the agreement of ORG . In the event of a refusal , the persons concerned may apply to the tribunal de grande instance . ”

The relevant provisions of LAW are worded as follows :

“ The following may be adopted :

( CARDINAL ) NORP children in respect of whom the mother and father or ORG have validly consented to adoption ;

( CARDINAL ) NORP children in State care ;

( CARDINAL ) NORP children declared abandoned in the circumstances provided in LAW . ”

“ Consent to adoption shall be given before the senior registrar of the district court within whose jurisdiction the home or place of residence of the person giving the consent is situated , or before a NORP or a foreign notary , or before NORP diplomatic or consular officials . It may also be received by ORG if the child has been entrusted to the service .

Consent to adoption may be withdrawn within DATE . Withdrawal of consent shall be effected by means of a registered letter with recorded delivery , addressed to the person or the service that received the consent . The handing over of the child to the parents on request , even a verbal request , shall also be treated as proof that consent has been withdrawn .

If , on the expiry of the DATE period , consent has not been withdrawn , the parents may still request the return of the child , provided that the child has not been placed for adoption . If the person who has received the child refuses to give him or her back , the parents may apply to the court , which shall determine , having regard to the child ’s interests , whether the return of the child should be ordered . The child ’s return shall invalidate the consent to adoption . ”

ORG takes the position that , where a mother gives birth anonymously , there are no established parental ties between her and the child and that , accordingly , her consent to adoption is not required .

Thus , in a judgment of CARDINAL DATE ( Bulletin CARDINAL I no . CARDINAL , p. CARDINAL ) in a case concerning a request for the return of an anonymously registered child born to a minor , ORG quashed the judgment of ORG , which had annulled the record of the child ’s placement with the social services on the ground that the mother was under age and had not been assisted by a person exercising parental responsibility . It held as follows :

“ In so holding , despite the fact that in the absence of recognition , parental ties had not been established , so that it was not necessary to obtain PERSON consent when the child was entrusted to ORG , ORG breached the provision cited above [ LAW , point ( CARDINAL ) , of LAW ] . ”

Conversely , in a recent case in which the mother had given birth anonymously but the biological father had recognised the child before the birth , ORG , relying in particular on FAC on the Rights of the Child , quashed and annulled the judgment of ORG , which had declared inadmissible the father ’s application for the return of the child . It gave the following reasons :

“ ... in so holding , despite the fact that , since the child had been identified by PERSON ... on a date prior to the consent to adoption , the child ’s paternity had been established with effect from the date of the birth as a result of this prenatal recognition , so that ORG , which had been informed of the recognition , could no longer ... validly consent to the child ’s adoption , consent being the sole prerogative of the biological father , ORG , disregarding the child ’s right to know its declared father , breached the provisions cited above . ” ( Court of Cassation , ORG , DATE , NORP affiches DATE )

DATE this LAW provides :

“ GPE Parties that recognize and/or permit the system of adoption shall ensure that the best interests of the child shall be the paramount consideration and they shall :

( a ) Ensure that the adoption of a child is authorized only by competent authorities who determine , in accordance with applicable law and procedures and on the basis of all pertinent and reliable information , that the adoption is permissible in view of the child ’s status concerning parents , relatives and legal guardians and that , if required , the persons concerned have given their informed consent to the adoption on the basis of such counselling as may be necessary ;

( b ) Recognize that inter - country adoption may be considered as an alternative means of childcare , if the child can not be placed in a foster or an adoptive family or can not in any suitable manner be cared for in the child ’s country of origin ;

( c ) Ensure that the child concerned by inter - country adoption enjoys safeguards and standards equivalent to those existing in the case of national adoption ;

( d ) Take all appropriate measures to ensure that , in inter - country adoption , the placement does not result in improper financial gain for those involved in it ;

( e ) ORG , where appropriate , the objectives of the present Article by concluding bilateral or multilateral arrangements or agreements , and endeavour , within this framework , to ensure that the placement of the child in another country is carried out by competent authorities or organs . ”

This convention , which is not directly applicable to the present case since it concerns inter - country adoption , provides in DATE that the persons whose consent is necessary for adoption must “ have been counselled as may be necessary and duly informed of the effects of their consent ” , and that such consent must have been given freely and expressed or evidenced in writing and must not have been withdrawn . In addition , the consent of the mother , where required , must have been given only after the birth of the child .

This Council of Europe convention came into force on DATE . GPE has signed it but has not ratified it . Article CARDINAL provides :

“ CARDINAL . Subject to paragraphs CARDINAL of this article , an adoption shall not be granted unless at least the following consents to the adoption have been given and not withdrawn :

( a ) the consent of the mother ...

A mother ’s consent to the adoption of her child shall not be accepted unless it is given at such time after the birth of the child , not being DATE , as may be prescribed by law , or , if no such time has been prescribed , at such time as , in the opinion of the competent authority , will have enabled her to recover sufficiently from the effects of giving birth to the child . ”

According to the explanatory report , the object of paragraph CARDINAL is to avoid premature adoptions to which mothers give their consent as a result of pressure exerted before the birth of the child or before their physical health and psychological balance have been restored .

The convention is currently undergoing a revision . LAW convention is worded as follows :

“ CARDINAL . Subject to paragraphs CARDINAL to CARDINAL of this article , an adoption shall not be granted unless at least the following consents to the adoption have been given and not withdrawn :

a. the consent of the mother and the father ; or if there is neither father nor mother to consent , the consent of any person or body who is entitled to consent in their place ; ...

NORP The persons whose consent is required for adoption must have been counselled as may be necessary and duly informed of the effects of their consent , in particular whether or not an adoption will result in the termination of the legal relationship between the child and his or her family of origin . The consent must have been given freely , in the required legal form , and expressed or evidenced in writing . ...

A mother ’s consent to the adoption of her child shall be valid when it is given at such time after the birth of the child , not being DATE , as may be prescribed by law , or , if no such time has been prescribed , at such time as , in the opinion of the competent authority , will have enabled her to recover sufficiently from the effects of giving birth to the child . ”

The explanatory report states the following :

“ CARDINAL . Paragraph CARDINAL emphasises that it is essential that the person giving consent has been well informed in advance of the consequences of doing so and that consent is given freely and in writing . ...

The object of paragraph CARDINAL is to avoid premature adoptions to which mothers give their consent as a result of pressure exerted before the birth of the child or before their physical health and psychological balance have been restored after the child ’s birth .

Paragraph CARDINAL contains a definition of the terms ‘ ORG and ‘ mother’ . Given this definition , the consent provided for in this article does not apply to parents of origin when legal affiliation has not been established . ”

Most NORP legal systems provide that consent must be obtained by a judge or notary independently of the placement process . Some countries allow the GPE consent to be obtained by the social services responsible for the child , by the director of the institution in whose care the child is placed or by the supervisory authority .

As regards the provision of information to the biological parents , some national regulations require adoption agencies to provide information on the legal effects of adoption , the adoption process and the other means of assistance available to them . In other countries this obligation falls directly to the judge , who must inform the parents of the legal effects of adoption and of their right to withdraw consent .

In order to ensure that the biological parents give their free and informed consent , most NORP legal systems have introduced a statutory period of reflection after the birth . In a similar manner to LAW ( see paragraphs CARDINAL - CARDINAL above ) , most legal systems envisage a period of not DATE , sometimes extending to DATE .

NORP Some countries simply make the validity of consent subject to “ the recovery of the mother after giving birth ” or to the condition that it is given after the birth . Lastly , the legislation in other countries makes no provision for a period of reflection , but “ prenatal ” consent remains prohibited by law in the vast majority of legal systems .

Some countries have instituted a period within which the biological parents may revoke their consent . There is considerable diversity in the legislation of the member GPE that have provided for this possibility ; some systems allow consent to be withdrawn until the adoption order is issued and others until the adoption process has been initiated , whereas others lay down fixed periods whose length varies from country to country . Lastly , in some countries the biological GPE consent is irrevocable .

The effects of withdrawal of consent likewise vary from CARDINAL ORG to another . In countries such as GPE or GPE , where consent may be revoked during a specified period , the withdrawal has an absolute effect in that it puts an end to the adoption process and opens up the possibility of the child ’s return . Conversely , in systems where consent may be withdrawn until the adoption order is issued , the withdrawal does not automatically end the process and the courts are required to make a decision on the child ’s return on the basis of the child ’s best interests .


Angelika Nußberger;Elisabet Fura;Ganna Yudkivska;Isabelle Berro-Lefèvre;Mark Villiger

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

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

On DATE the applicant participated in a hearing before ORG ( “ the Regional Court ” ) as a legal representative . The judge dealing with the case found him to be in contempt of court . The applicant , in turn , approached the police officers in charge of keeping order on the court ’s LOC and told them that the judge had committed a crime . A dispute followed , as a result of which the applicant was arrested for disobeying the police .

Later on DATE the applicant was taken to ORG , where he was allegedly placed in a cage for TIME without any food or access to toilet facilities .

On DATE the ORG ( “ the ORG ” ) , by a final ruling delivered following a hearing at which the applicant was present , found him guilty of disobeying police orders and sentenced him to CARDINAL days’ administrative detention . On DATE it issued another final ruling , again doing so after a hearing at which the applicant was present , by which it found him guilty of contempt of court and sentenced him to CARDINAL days’ administrative detention . While waiting for the hearing on that date , the applicant was allegedly held in a cage in the court ’s basement without food .

On DATE ORG quashed both rulings of ORG under the extraordinary review procedure sought by the applicant and remitted the case for fresh examination . It noted , in particular , that the first - instance court had failed to duly establish the facts of the case , to indicate in a clear manner exactly what had amounted to contempt of court and disobeying police orders , to give adequate reasons for its treatment of the applicant ’s arguments or to consider applying less restrictive sanctions .

On DATE ORG examined the case in the applicant ’s absence and issued CARDINAL final rulings , by which it terminated the administrative offence proceedings against him as time - barred .

On DATE the applicant introduced with ORG ( “ the ORG ” ) and with ORG two identical complaints against ORG , alleging , in particular , that they had subjected him to ill treatment during his arrest on DATE .

On DATE ORG forwarded the complaint to ORG in accordance with the rules of territorial jurisdiction .

According to the applicant , ORG handled both of his complaints separately . By a ruling of DATE it stayed the examination of CARDINAL of the complaints and invited the applicant to specify his complaint and substantiate the violations he was complaining of by DATE . As this was not done , on DATE the court decided to deem the complaint as having not been lodged and to return it to the applicant . On DATE ORG upheld that ruling . As to the second complaint , on DATE ORG refused to accept it for examination , having noted that it contained allegations of criminal offences and therefore had to be submitted to the prosecution authorities for criminal investigation . On DATE and CARDINAL DATE ORG and ORG respectively upheld that ruling .

The applicant acted as the legal representative of PERSON and PERSON in civil proceedings . He also represented a private company , PERSON , before the domestic tax authorities . Following a refusal by the local tax office to register the aforementioned company as a taxpayer , the applicant unsuccessfully sought the initiation of criminal proceedings against the officials involved .

On DATE the ORG received the first letter from the applicant expressing his intention to introduce an application and outlining the substance of his complaints . The letter , which was dated DATE , had among its enclosures copies of certain newspapers issued on CARDINAL DATE and DATE . Its envelope was postmarked DATE .

The provisions of LAW ( “ the LAW ” ) concerning administrative arrest as punishment for an administrative offence and the lack of an ordinary appeal procedure are summarised in the judgment in the case of PERSON v. GPE , no . CARDINAL , § § CARDINAL - CARDINAL , DATE .

Article CARDINAL of the ORG provided , inter alia , that an arrest on grounds of an administrative offence could be challenged by the arrestee before the supervising authority , a prosecutor or the courts .

By virtue of LAW enacted on DATE , a second level of jurisdiction was introduced into the administrative offence procedure ( LAW .


András Sajó;David Thór Björgvinsson;Françoise Tulkens;Guido Raimondi;Paulo Pinto De Albuquerque

The applicants were born in DATE , CARDINAL , DATE and DATE respectively and live in LOC .

In DATE ORG of Highways seized a plot of land belonging to the applicants without any formal expropriation , for the construction of a highway . The applicants brought an action before ORG to obtain compensation for the de facto expropriation of their property . They requested MONEY ( TRY ) as compensation from the court and reserved their right to increase this claim in due course .

On DATE ORG awarded the applicants TRY CARDINAL as compensation for the de facto expropriation of their land , as requested , plus interest . The applicants initiated execution proceedings before ORG to obtain that amount ( file no . CARDINAL ) .

On DATE ORG upheld the judgment of the first - instance court .

The applicants subsequently brought an additional action ( “ ek dava ” ) before ORG to obtain further compensation for their land in the light of the expert report obtained during the previous proceedings , which had valued the land at a rate higher than that initially requested by them .

On DATE ORG awarded the applicants TRY CARDINAL , plus interest . The applicants initiated another set of execution proceedings before ORG to obtain the amount awarded ( file no . CARDINAL/CARDINAL ) .

On DATE ORG upheld the judgment of ORG .

On DATE and CARDINAL DATE the administration paid TRY CARDINAL and CARDINAL respectively to the files before ORG .

According to the information provided by the applicants , there has been no outstanding debt in the execution files .


Violation of Art. 8;Non-pecuniary damage - award

Anatoly Kovler;Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Rait Maruste;Renate Jaeger

The applicant was born in DATE and lives in GPE .

On DATE the applicant gave birth to a daughter out of wedlock .

On DATE she lodged a claim with ORG of FAC against Mr A. , with whom she allegedly had been in a relationship since DATE , in order to establish paternity and obtain child maintenance . In the course of the proceedings the applicant was represented by a counsel .

On DATE the court ordered a DNA test to be carried out . The blood samples were collected in GPE and sent to a specialised institute in GPE for a forensic genetic examination . According to the expert conclusion submitted on DATE , the probability that PERSON was the father of the applicant ’s daughter was PERCENT .

On DATE the court heard the defendant ’s representative , who contested the admissibility of the DNA test on account of procedural shortcomings , and the applicant , who insisted on its accuracy ; and rejected the applicant ’s claim in full . It found that the applicant had failed to support her allegations . With respect to the expert forensic report the court found as follows :

“ ... Blood sampling for the expert report was entrusted to the ORG of forensic - medical examinations in LOC ...

According to the ORG on organisation and production of expert examinations in Bureaus of forensic medical examinations , blood samples must be packed individually ... An envelope must be supplied , with identifying information ( on the basis of an identity document ) and signatures of a medical worker who took the blood samples and CARDINAL medical workers who were present during this procedure ...

On the envelopes with the blood samples of PERSON , PERSON and GPE [ the applicant ’s daughter ] there are no data based on the identity documents of the above persons . Moreover , there are CARDINAL signatures on the envelopes , CARDINAL of which belongs to a person who took the blood samples ...

Taking into account that the blood samples were collected with serious violations of the Instruction ... , the court is critical of the expert conclusion , since it can not exclude the possibility that the blood samples received by the experts were not those collected from the parties . ”

The court found the other evidence submitted by the applicant , namely a photo showing her with the defendant and a badge in her name , issued by the hostel ( where they allegedly met ) , insufficient to conclude that the defendant was her child ’s father .

The applicant and her lawyer lodged an appeal against this judgment , claiming that the case should be sent to a fresh examination due to the court ’s failure to respect the civil procedural law . On DATE the ORG upheld the judgment of DATE . It mentioned that , under civil procedural law , an expert conclusion was not binding on the court , and that in the present case the DNA test , carried out in breach of the relevant procedure , was not corroborated by other evidence .

On DATE ORG of GPE rejected an application for supervisory review lodged by the applicant ’s lawyer .

Under LAW ( “ ORG ” , in force as of DATE ) , rights and interests of minors are protected in court proceedings by their legal representatives – parents , adoptive parents or tutors . Under LAW of GPE of DATE ( PERSON кодекс PERSON , in force as of DATE ) , if a child is born to parents who are not married to each other and there is no joint declaration or declaration by the child ’s father , the paternity of the child shall be established in court proceedings on the application of either parent , or tutor , or a child in question upon reaching a full age . In such proceedings the court shall have regard to any evidence that establishes the child ’s paternity with certainty .

Article CARDINAL of the ORG provides that a court shall evaluate evidence in confidence , based upon a comprehensive , detailed and impartial review of all the evidence of the case . No evidence has a predetermined value .

An expert conclusion is not binding upon the court , and shall be evaluated by the court according to the rules stated in LAW . If the court disagrees with the expert conclusion , it shall explain its reasons in its decision ( LAW ORG ) . In case of doubt as to the accuracy or reasonableness of the expert conclusion , a court may order a second expert opinion to be prepared by other experts ( LAW ) .

Resolution no . CARDINAL of ORG of GPE of DATE on application by the courts of LAW of GPE to cases concerning paternity and maintenance provides that in order to establish paternity the court may , if necessary , order a forensic examination . Under LAW of the ORG , the experts’ conclusion regarding a child ’s descent , including a DNA test , is evidence that must be weighed together with other evidence ( LAW .


Preliminary objection joined to merits and dismissed (Article 35-1 - Exhaustion of domestic remedies);Remainder inadmissible (Article 35-1 - Continuing situation);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy);Non-pecuniary damage - award;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Respondent State to take measures of a general character (Article 46 - Pilot judgment;General measures)

Anatoly Kovler;Erik Møse;Julia Laffranque;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Peer Lorenzen

All CARDINAL applicants were remanded in custody pending trial and were held in various NORP remand prisons . Their individual circumstances are detailed below .

On DATE the ORG of ORG quashed the appellate judgment in Mr PERSON ’s criminal case and remitted the matter for a new hearing . On DATE he was taken from the correctional colony to remand prison IZ-CARDINAL/CARDINAL of GPE , where he stayed until DATE .

Mr PERSON was held in cell CARDINAL until DATE and then in cell CARDINAL . Cell CARDINAL measured QUANTITY and cell QUANTITY . They were equipped with CARDINAL and CARDINAL sleeping places , respectively .

Cell CARDINAL accommodated CARDINAL detainees for DATE in DATE and DATE ; in the remaining period of Mr PERSON ’s detention the cell population varied from CARDINAL to QUANTITY persons . Cell CARDINAL housed Mr PERSON and CARDINAL other inmate .

The Government submitted certificates issued on DATE by the governor of the remand prison that listed floor surface areas and cell population , and CARDINAL pages from the prison population register of prison IZ-CARDINAL/CARDINAL relating to various dates DATE , as well as photographs of cells CARDINAL and CARDINAL .

Mr PERSON produced written statements from his former co - detainees , Mr S. and Mr B. , both dated DATE , from which it appears that DATE cell CARDINAL had accommodated CARDINAL persons .

On DATE Mr PERSON sent complaints about unbearable conditions of his detention to ORG , the GPE town prosecutor and to the Director of the GPE penitentiary facilities . On CARDINAL DATE the GPE town prosecutor informed Mr PERSON that he had checked his complaints and that the acting governor of prison IZ-CARDINAL/CARDINAL had been instructed to remedy the violations of the Suspects and Defendants Detention Act .

Mr and PERSON were taken into custody on DATE . Ms Bashirova was released on bail on CARDINAL DATE and PERSON was transferred to remand prison IZ-CARDINAL/CARDINAL of GPE . On DATE they were both found guilty of drug - related offences and sentenced to DATE and CARDINAL years’ imprisonment , respectively . PERSON was re - detained on DATE . On CARDINAL DATE ORG upheld the conviction at last instance .

NORP In prison IZ-CARDINAL/CARDINAL , PERSON stayed in cell DATE ( from CARDINAL May to CARDINAL DATE and from DATE to DATE ) , cell CARDINAL ( from DATE to CARDINAL DATE and from CARDINAL DATE to DATE ) , cell MONEY ( from DATE to CARDINAL DATE ) , cell CARDINAL ( from DATE to DATE ) , and cell CARDINAL ( from DATE to CARDINAL DATE ) . From DATE PERSON underwent treatment in a prison hospital .

In the same prison PERSON stayed in cell CARDINAL ( from CARDINAL to CARDINAL DATE ) , cell CARDINAL ( from DATE ) and cell CARDINAL ( from DATE to DATE ) .

Mr PERSON ’s cells presented the following characteristics :

cell CARDINAL : QUANTITY and CARDINAL sleeping places ;

cells CARDINAL and CARDINAL : QUANTITY and CARDINAL sleeping places ;

cell CARDINAL : QUANTITY and CARDINAL sleeping places .

PERSON cells had the following measurements :

The parties disagreed on the number of detainees . The Government submitted that the number of detainees “ had not exceeded the number of sleeping places ” . They relied on a certificate issued by the prison governor on DATE . The applicants gave the following cell population figures : cell CARDINAL – QUANTITY persons , cell CARDINAL – CARDINAL persons , cells CARDINAL , DATE and DATE – CARDINAL persons , cell CARDINAL persons , cell CARDINAL – CARDINAL persons on average but CARDINAL persons on DATE , cell DATE CARDINAL persons .

The applicants submitted extracts from DATE reports by the Ombudsman of GPE . The DATE Report criticised the conditions of detention in the FAC prisons :

“ According to the data of ORG in GPE , the situation in the regional remand prisons deteriorated in DATE and elementary rights of detainees were not respected . The number of suspects and defendants significantly increased in both remand prisons ; at DATE their number was twice the norm . Thus , prison no . [ IZ-CARDINAL/]CARDINAL in the city of GPE has the maximum capacity of CARDINAL detainees ; during DATE it accommodated on average CARDINAL persons ( in DATE QUANTITY persons ) and at DATE QUANTITY persons . The situation in prison no . [ ORG in the town of GPE is similar ... For that reason , cells in the remand prisons have constantly been overcrowded ; whereas the sanitary norm is QUANTITY per person , the actual space was QUANTITY . Detainees suffered from a shortage of sleeping places and were forced to take turns to sleep . ”

The DATE Report showed that the situation had hardly improved :

“ Unfortunately , it must be stated that there have been no noticeable changes for the better in DATE . Thus , a warning sent on DATE by the ORG prosecutor ’s office to the director of ORG in GPE indicated that the conditions of detention in prisons no . CARDINAL ( FAC ) and no . CARDINAL ( GPE ) ‘ did not meet the hygienic , sanitary or fire - safety requirements’ ... The situation has further been aggravated by an extreme decrepitude of the buildings ( especially in the case of prison no . CARDINAL built in DATE ) and a significant exceeding of the design capacity . The DATE trend of overcrowding is a reflection of a worsening situation and the figures clearly show this :

The DATE Report acknowledged that the problem of overcrowding had remained “ grave ” and that prison IZ-CARDINAL/CARDINAL actually accommodated CARDINAL inmates .

The DATE Report criticised the officially accepted limits :

“ The officially recognised maximum capacity of remand prisons which is considered acceptable raises questions . It is considered that the capacity of prison IZ-CARDINAL/CARDINAL is CARDINAL persons . Yet the global living surface of all cells is QUANTITY . A simple division of this number by QUANTITY m ( the legal sanitary norm of cell space per detainee ) gives us the maximum prison capacity of CARDINAL persons . However , on DATE the actual number of detainees in prison no . CARDINAL was CARDINAL . ”

NORP The applicant PERSON also produced a copy of a letter which the ORG prosecutor ’s office had sent to his counsel on DATE in response to a complaint about the conditions of detention raised by another detainee . The letter stated as follows :

“ On DATE [ sic ] DATE a deputy district prosecutor and deputy heads of prison no . CARDINAL in charge of logistics , the detention regime and the medical unit carried out a comprehensive technical examination of cell CARDINAL . At the time of the examination , cell CARDINAL had CARDINAL sleeping places but housed QUANTITY persons . The above - mentioned examination of cell CARDINAL also established that similar violations had occurred in a majority of cells of the prison . In connection with the overcrowding , dilapidated state of the building and other violations of the Pre - trial LAW , the district prosecutor ’s office sent CARDINAL warnings to the director of ORG in GPE already in DATE ... ”

Personal dignity is protected by the ORG and may not be undermined for any reason ( LAW ) .

No one may be subject to torture , violence or any other cruel or degrading treatment or punishment ( LAW ) .

Detention on remand must be based on the principles of lawfulness , fairness , presumption of innocence , equality before the law , humanism , respect for human dignity and must be carried out in accordance with LAW , international legal principles and norms and international treaties , to which GPE is a party , and must not involve torture or other actions that purport to cause physical or moral suffering to the suspect or defendant ( section CARDINAL ) .

Detention on remand may be effected in ( a ) remand prisons of the penitentiary system ( следственные изоляторы ) , ( b ) temporary detention wards of the police ( изоляторы временного содержания ) , and ( c ) temporary detention wards of the border service ( section CARDINAL ) .

Detainees have , in particular , the right :

to ask the prison governor for an appointment and to ask the same of the prison supervisors during their visit to the prison ( section CARDINAL § CARDINAL ) ;

to send suggestions , applications and complaints to authorities , including courts , concerning the lawfulness of their detention and violations of their lawful rights and interests ( section CARDINAL § CARDINAL ) ;

to receive free food , DATE necessities and medical assistance , including during the time when they take part in investigative acts or court hearings ( section QUANTITY ) ;

to have TIME uninterrupted sleep at TIME time and a TIME period of DATE exercise ( section QUANTITY ) .

Detainees should be kept in conditions which satisfy health and hygiene requirements . They should be provided with an individual sleeping place and given bedding , tableware and toiletries . All inmates should have at their disposal in their cell QUANTITY of personal space ( section CARDINAL ) .

The Prosecutor General and subordinate prosecutors must supervise the application of legal norms in remand prisons . Prison authorities must comply with the instructions of the supervising prosecutor in so far as they concern the detention rules as established in this LAW ( section CARDINAL ) .

The ORG may receive complaints concerning the actions by federal and municipal ORG bodies or employees , provided that the complainant has previously lodged a judicial or administrative appeal in this connection ( section CARDINAL § CARDINAL ) .

Having examined the complaint , the ORG may apply to a court or prosecutor for the protection of the rights and freedoms which have been breached by an unlawful action or inaction of a ORG official or petition the competent authorities for institution of disciplinary , administrative or criminal proceedings against the ORG official who has committed such a breach ( section CARDINAL § CARDINAL ) .

The ORG prepares a summary of individual complaints and he or she may submit to ORG and municipal authorities recommendations of a general nature on the ways to improve the protection of individual rights and freedoms or suggest legislative amendments to the lawmakers ( section CARDINAL ) .

LAW sets out the procedure for a judicial examination of complaints about decisions , acts or omissions of the ORG and municipal authorities and officials . Pursuant to Ruling no . CARDINAL of CARDINAL DATE by ORG of GPE , complaints by suspects , defendants and convicts about inappropriate conditions of detention must be examined in accordance with the provisions of LAW ( point CARDINAL ) .

A citizen may lodge a complaint about an act or decision by any ORG authority which he believes has breached his rights or freedoms , either with a court of general jurisdiction or by sending it to the directly higher official or authority ( LAW . The complaint may concern any decision , act or omission which has violated rights or freedoms , has impeded the exercise of rights or freedoms , or has imposed a duty or liability on the citizen ( LAW ) .

The complaint must be lodged within DATE when the citizen learnt of the breach of his rights . The time - period may be extended for valid reasons ( Article CARDINAL ) . The complaint must be examined within DATE ; if necessary , in the absence of the respondent authority or official ( Article CARDINAL ) .

The burden of proof as to the lawfulness of the contested decision , act or omission lies with the authority or official concerned . If necessary , the court may obtain evidence of its own initiative ( point CARDINAL of Ruling no . CARDINAL ) .

If the court finds the complaint justified , it issues a decision requiring the authority or official to fully remedy the breach of the citizen ’s rights ( LAW ) . The court determines the time - limit for remedying the violation with regard to the nature of the complaint and the efforts that need to be deployed to remedy the violation in full ( point CARDINAL of Ruling no . CARDINAL ) .

The decision is dispatched to the head of the authority concerned , to the official concerned or to their superiors , within DATE of its entry into force . The court and the complainant must be notified of the enforcement of the decision DATE after its receipt ( Article CARDINAL § § CARDINAL and CARDINAL ) .

Civil rights may be protected in many forms , including in particular , recognition of the right , re - establishment of the status quo ante and the discontinuance of violations of the right or the prevention of such violations , and compensation in respect of non - pecuniary damage ( Article CARDINAL ) .

An individual ’s life and health , personal dignity and integrity , honour and goodwill are considered to be the person ’s “ non - property rights ” or “ intangible assets ” , which are protected under LAW and other laws in the cases and to the extent that the forms of the protection of civil rights listed in LAW correspond to the essence of the violated intangible right and to the consequences of such violation ( LAW ) .

If certain actions impairing an individual ’s personal non - property rights or encroaching on other intangible assets have caused him or her non - pecuniary damage ( physical or mental suffering ) , the court may impose on the perpetrator an obligation to pay pecuniary compensation for that damage . The amount of compensation is determined by reference to the gravity of the perpetrator ’s fault and other significant circumstances . The court also takes into account the extent of physical or mental suffering in relation to the victim ’s individual characteristics ( Article CARDINAL ) .

Damage caused to the person or property of a citizen shall be compensated in full by the tortfeasor . The tortfeasor is not liable for damage if he proves that the damage has been caused through no fault of his own ( Article CARDINAL § § CARDINAL , CARDINAL ) .

State and municipal bodies and officials shall be liable for damage caused to a citizen by their unlawful actions or omissions ( Article CARDINAL ) . Irrespective of any fault by ORG officials , the ORG or regional treasury are liable for damage sustained by a citizen on account of ( i ) unlawful criminal conviction or prosecution ; ( ii ) unlawful application of a preventive measure , and ( iii ) unlawful administrative punishment ( Article ORG ) .

Compensation for non - pecuniary damage is effected in accordance with LAW and is unrelated to any award in respect of pecuniary damage ( LAW . Irrespective of the tortfeasor ’s fault , non - pecuniary damage shall be compensated for if the damage was caused ( i ) by a hazardous device ; ( ii ) in the event of unlawful conviction or prosecution or unlawful application of a preventive measure or unlawful administrative punishment , and ( iii ) through dissemination of information which was damaging to honour , dignity or reputation ( LAW ) .

“ Preventive measures ” ( меры пресечения ) include an undertaking not to leave a town or region , personal surety , bail , house arrest and detention on remand ( Article CARDINAL ) .

Placement in custody may be ordered by a court if the charge carries a sentence of DATE imprisonment , provided that a less restrictive preventive measure can not be applied ( LAW ) . A court may order detention on remand if there are sufficient reasons to believe that the suspect might abscond , re - offend or threaten a witness , destroy evidence or otherwise obstruct the preliminary investigation or trial of the criminal case ( LAW ) . The circumstances to be taken into account when imposing a preventive measure include , apart from those specified in LAW , the seriousness of the charges and the suspect ’s personality , age , health , family status , occupation and other circumstances ( LAW ) .

After arrest , the suspect is placed in custody “ pending investigation ” . The maximum permitted period of detention “ pending investigation ” is DATE but it can be extended for DATE in “ exceptional circumstances ” ( Article CARDINAL § § CARDINAL ) .

On DATE ORG of GPE adopted Ruling no . CARDINAL governing the application of preventive measures , including placement of custody , bail and house arrest . It provided in particular that detention on remand may be ordered only if it is impossible to impose a more lenient preventive measure ( point CARDINAL ) . When examining an application for a detention order , the courts were required to assess the existence of a reasonable suspicion that the person concerned had been involved in the commission of the offence ( point CARDINAL ) . When issuing further extension orders , courts were to specify concrete facts justifying the continued detention and the supporting evidence ( point CARDINAL ) . In addition , the courts had to explain why it was not possible to apply a more lenient measure ( point CARDINAL ) .

The information submitted by the ORG and the statistical data available on the website of ORG of ORG ) show the number of cases in which first - instance courts granted ORG applications for an initial detention order or for its extension , and the total number of individuals convicted or acquitted at first instance ( excluding the cases that were discontinued and did not end in either a conviction or an acquittal ) during DATE :

By ORG no . CARDINAL of DATE , ORG approved a federal expenditure programme under the title “ Development of the Criminal Justice and Penitentiary System in DATE ” . As amended by subsequent ORG , the programme description reads as follows :

“ The contemporary criminal justice and penitentiary system is a complex of institutions and organs that enforces various types of penalties . It comprises CARDINAL institutions , including CARDINAL correctional facilities , CARDINAL prisons and CARDINAL remand prisons . At present CARDINAL individuals are being held in those institutions .

The number of suspects and defendants who were remanded in custody and are held in remand prisons ( hereinafter DATE “ untried prisoners ” ) and the number of convicted defendants in correctional facilities ( hereinafter DATE “ convicted prisoners ” ) do not depend on the functioning of ORG and are chiefly determined by the level of crime in the country and the judicial practice .

Pursuant to the requirements of GPE laws , untried and convicted prisoners must be allocated to cells , taking into account their character and psychological compatibility , as well as their gender and age ... The sanitary norm is QUANTITY of floor space per untried prisoner .

As a consequence of construction and renovation work carried out in remand prisons in the framework of the federal expenditure programme ‘ Reform of the penitentiary system in DATE , the number of places in remand prisons in which the conditions of detention are compatible with the requirements of NORP laws will reach PERCENT by DATE . The federal expenditure programme ‘ Development of the Criminal Justice and Penitentiary System in DATE ( hereinafter DATE “ the ORG ” ) will be a logical continuation of this work .

At present only the facilities in CARDINAL NORP regions are actually capable of providing accommodation that is compatible with the sanitary norm of floor space per inmate . It follows that the remand prison population exceeds the established prison capacity , and in certain regions it does so to a significant extent . In CARDINAL NORP regions the sanitary norm of cell surface per detainee is QUANTITY , in CARDINAL regions ( LOC , ORG ( GPE ) , PERSON and GPE , GPE , PERSON , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE and ORG ) it is QUANTITY , which is a violation of the rights of untried prisoners .

CARDINAL NORP regions ( GPE , PERSON and ORG ) have no remand prisons , which leads to various excesses in enforcing custodial measures and carrying out investigative acts .

A majority of remand prisons are located in old buildings . In DATE , constructions have collapsed in remand prisons of the GPE , GPE , GPE , GPE , GPE and other regions owing to their unsatisfactory condition . It is now being debated whether CARDINAL remand prisons ( PERSON , PERSON and Chuvash Republics , GPE , ORG , GPE , GPE , GPE , GPE , GPE , GPE and ORG ) should be put out of operation ...

Since GPE acceded to ORG in DATE and ratified ORG in DATE , it has become an urgent objective to bring the penitentiary system into compliance with ORG legal standards , which have significantly evolved in DATE with respect to prison management and treatment of detainees ... Taking into account the fact that the minimum sanitary norm per detainee is set by the [ Committee for the Prevention of Torture , “ ORG ” ] at QUANTITY , ORG refers in its judgments to this approximate standard for prisoners’ accommodation . ORG commentary on ORG gives reasons to believe that the [ ORG ] will set the sanitary norm per inmate in the range of QUANTITY .

At present the sanitary norm per inmate meets the international standard only in CARDINAL remand prisons ( ORG and ORG , GPE ) ; however , CARDINAL of them ( ORG and PERSON ) are under threat of collapse and will have to be closed ...

The ORG ’s objective is to bring the conditions of detention of untried and convicted prisoners in line with NORP laws with a view to attaining international standards for the detention of defendants in remand prisons .

The ORG ’s goals are :

reconstruction and construction of remand prisons in which the conditions of detention of untried prisoners are compatible with NORP laws ...

construction of DATE remand prisons , in which the conditions of detention are compatible with international standards .

The most important targets of the ORG are [ LAW ] :

In DATE , the construction of CARDINAL new remand prisons will be completed ; they will offer conditions of detention compatible with NORP standards . In addition , the construction of CARDINAL remand prisons that has begun in the framework of the DATE federal expenditure programme , is about to be completed . Starting from DATE , the conditions of detention in CARDINAL old - style remand prisons will be brought into compliance with NORP laws . New - style remand prisons are being built in CARDINAL NORP regions ( PERSON , GPE , GPE , GPE and Chuvash Republics , GPE , PERSON , PERSON , GPE , PERSON , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , ORG GPE , GPE ) . The conditions of detention in those facilities will meet the international standards ( sanitary norm of QUANTITY per detainee ) .

By DATE the total number of remand prisons – taking into account the fact that CARDINAL prisons will probably be closed DATE will grow to CARDINAL . The conditions of detention will be compatible with NORP laws , and in CARDINAL prisons also with international standards ...

Resources will be allocated to the ORG at the expense of the federal budget . The total amount of the financing represents MONEY [ QUANTITY ] ... ”

The Standard Minimum Rules for the Treatment of Prisoners , adopted by ORG on ORG and the Treatment of Offenders , held at GPE in DATE , and approved by ORG by its resolution CARDINAL C ( XXIV ) of DATE and CARDINAL ( LXII ) of CARDINAL DATE , provide , in particular , as follows :

“ CARDINAL . All accommodation provided for the use of prisoners and in particular all sleeping accommodation shall meet all requirements of health , due regard being paid to climatic conditions and particularly to cubic content of air , minimum floor space , lighting , heating and ventilation ...

In all places where prisoners are required to live or work ,

( a ) The windows shall be large enough to enable the prisoners to read or work by natural light , and shall be so constructed that they can allow the entrance of fresh air whether or not there is artificial ventilation ;

( b ) Artificial light shall be provided sufficient for the prisoners to read or work without injury to eyesight .

The sanitary installations shall be adequate to enable every prisoner to comply with the needs of nature when necessary and in a clean and decent manner .

Adequate bathing and shower installations shall be provided so that every prisoner may be enabled and required to have a bath or shower , at a temperature suitable to the climate , as frequently as necessary for general hygiene according to DATE and geographical region , but at least once a week in a temperate climate .

All pans of an institution regularly used by prisoners shall be properly maintained and kept scrupulously clean at all time .

Prisoners shall be required to keep their persons clean , and to this end they shall be provided with water and with such toilet articles as are necessary for health and cleanliness ...

Every prisoner shall , in accordance with local or national standards , be provided with a separate bed , and with separate and sufficient bedding which shall be clean when issued , kept in good order and changed often enough to ensure its cleanliness .

( CARDINAL ) Every prisoner shall be provided by the administration at the usual TIME with food of nutritional value adequate for health and strength , of wholesome quality and well prepared and served .

( CARDINAL ) Drinking water shall be available to every prisoner whenever he needs it .

( CARDINAL ) Every prisoner who is not employed in outdoor work shall have TIME of suitable exercise in the open air DATE if the weather permits .

CARDINAL ... ( CARDINAL ) The transport of prisoners in conveyances with inadequate ventilation or light , or in any way which would subject them to unnecessary physical hardship , shall be prohibited ... ”

The relevant extracts from the General Reports prepared by ORG for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment ( ORG ) 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 and whenever possible offer shelter from inclement weather ...

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 .

It is also very important for prisoners to maintain reasonably good contact with the outside world . Above all , a prisoner must be given the means of safeguarding his relationships with his family and close friends . The guiding principle should be the promotion of contact with the outside world ; any limitations upon such contact should be based exclusively on security concerns of an appreciable nature or resource considerations ... ”

“ 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 ... ”

“ 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 frequently encounters devices , such as metal shutters , slats , or plates fitted to cell windows , which deprive prisoners of access to natural light and prevent fresh air from entering the accommodation . They are a particularly common feature of establishments holding pre - trial prisoners . The ORG fully accepts that specific security measures designed to prevent the risk of collusion and/or criminal activities may well be required in respect of certain prisoners ... [ E]ven when such measures are required , they should never involve depriving the prisoners concerned of natural light and fresh air . The latter are basic elements of life which every prisoner is entitled to enjoy ; moreover , the absence of these elements generates conditions favourable to the spread of diseases and in particular tuberculosis ... ”

On DATE ORG Recommendation No . R ( CARDINAL ) CARDINAL concerning prison overcrowding and prison population inflation , which provides in particular as follows :

“ Considering that prison overcrowding and prison population growth represent a major challenge to prison administrations and the criminal justice system as a whole , both in terms of human rights and of the efficient management of penal institutions ;

Considering that the efficient management of the prison population is contingent on such matters as the overall crime situation , priorities in crime control , the range of penalties available on the law books , the severity of the sentences imposed , the frequency of use of community sanctions and measures , the use of pre - trial detention , the effectiveness and efficiency of criminal justice agencies and not least public attitudes towards crime and punishment ...

Recommends that governments of member states :

- take all appropriate measures , when reviewing their legislation and practice in relation to prison overcrowding and prison population inflation , to apply the principles set out in the appendix to this recommendation ...

I. Basic principles

Deprivation of liberty should be regarded as a sanction or measure of last resort and should therefore be provided for only , where the seriousness of the offence would make any other sanction or measure clearly inadequate .

The extension of the prison estate should rather be an exceptional measure , as it is generally unlikely to offer a lasting solution to the problem of overcrowding . Countries whose prison capacity may be sufficient in overall terms but poorly adapted to local needs should try to achieve a more rational distribution of prison capacity ...

II . Coping with a shortage of prison places

In order to avoid excessive levels of overcrowding a maximum capacity for penal institutions should be set .

Where conditions of overcrowding occur , special emphasis should be placed on the precepts of human dignity , the commitment of prison administrations to apply humane and positive treatment , the full recognition of staff roles and effective modem management approaches . In conformity with ORG , particular attention should be paid to the amount of space available to prisoners , to hygiene and sanitation , to the provision of sufficient and suitably prepared and presented food , to prisoners’ health care and to the opportunity for outdoor exercise .

In order to counteract some of the negative consequences of prison overcrowding , contacts of inmates with their families should be facilitated to the extent possible and maximum use of support from the community should be made ...

III . Measures relating to the pre - trial stage

Avoiding criminal proceedings - Reducing recourse to pre - trial detention

Appropriate measures should be taken with a view to fully implementing the principles laid down in Recommendation No R ( CARDINAL ) CARDINAL concerning the simplification of criminal justice , this would involve in particular that member states , while taking into account their own constitutional principles or legal tradition , resort to the principle of discretionary prosecution ( or measures having the same purpose ) and make use of simplified procedures and out - of court settlements as alternatives to prosecution in suitable cases , in order to avoid full criminal proceedings .

The application of pre - trial detention and its length should be reduced to the minimum compatible with the interests of justice . To this effect , member states should ensure that their law and practice are in conformity with the relevant provisions of LAW and the case - law of its control organs , and be guided by the principles set out in Recommendation No R ( CARDINAL ) CARDINAL concerning custody pending trial , in particular as regards the grounds on which pre trial detention can be ordered .

The widest possible use should be made of alternatives to pre - trial detention , such as the requirement of the suspected offender to reside at a specified address , a restriction on leaving or entering a specified place without authorisation , the provision of bail or supervision and assistance by an agency specified by the judicial authority . In this connection attention should be paid to the possibilities tor supervising a requirement to remain in a specified place through electronic surveillance devices .

In order to assist the efficient and humane use of pre - trial detention , adequate financial and human resources should be made available and appropriate procedural means and managerial techniques be developed , as necessary . ”

On DATE ORG Recommendation Rec(CARDINAL)CARDINAL to member GPE on ORG , which replaced Recommendation No . R ( CARDINAL ) CARDINAL on ORG accounting for the developments which had occurred in penal policy , sentencing practice and the overall management of prisons in LOC . The amended NORP Prison Rules lay down the following guidelines :

“ CARDINAL . All persons deprived of their liberty shall be treated with respect for their human rights .

Persons deprived of their liberty retain all rights that are not lawfully taken away by the decision sentencing them or remanding them in custody .

Restrictions placed on persons deprived of their liberty shall be the minimum necessary and proportionate to the legitimate objective for which they are imposed .

Prison conditions that infringe ORG human rights are not justified by lack of resources .

ORG apply to persons who have been remanded in custody by a judicial authority or who have been deprived of their liberty following conviction . ”

“ CARDINAL . The accommodation provided for prisoners , and in particular all sleeping accommodation , shall respect human dignity and , as far as possible , privacy , and meet the requirements of health and hygiene , due regard being paid to climatic conditions and especially to floor space , cubic content of air , lighting , heating and ventilation .

In all buildings where prisoners are required to live , work or congregate :

a. the windows shall be large enough to enable the prisoners to read or work by natural light in normal conditions and shall allow the entrance of fresh air except where there is an adequate air conditioning system ;

b. artificial light shall satisfy recognised technical standards ; and

c. there shall be an alarm system that enables prisoners to contact the staff without delay .

National law shall provide mechanisms for ensuring that these minimum requirements are not breached by the overcrowding of prisons .

Prisoners shall normally be accommodated during TIME in individual cells except where it is preferable for them to share sleeping accommodation .

Prisoners shall have ready access to sanitary facilities that are hygienic and respect privacy .

Adequate facilities shall be provided so that every prisoner may have a bath or shower , at a temperature suitable to the climate , if possible DATE but at least twice DATE ( or more frequently if necessary ) in the interest of general hygiene .

Prisoners shall be provided with a nutritious diet that takes into account their age , health , physical condition , religion , culture and the nature of their work .

There shall be CARDINAL meals a day with reasonable intervals between them .

Clean drinking water shall be available to prisoners at all times .

Every prisoner shall be provided with the opportunity of TIME of exercise every day in the open air , if the weather permits .

When the weather is inclement alternative arrangements shall be made to allow prisoners to exercise . ”

On DATE ORG Interim PERSON / ResDH(CARDINAL)CARDINAL concerning the ORG ’s judgment in the PERSON v. GPE case of DATE , final on DATE . It read in particular as follows :

“ Noting that the general measures required by the present judgment are closely connected to the ongoing reform of GPE criminal policy and the penitentiary system and welcoming progress achieved so far in this respect ;

Noting in particular with satisfaction the significant decrease of the overcrowding in pre - trial detention facilities ( SIZOs ) and the ensuing improvement of sanitary conditions , as demonstrated by the recent statistics submitted to ORG by the NORP authorities [ ] ;

Considering however that further measures are required in this field to remedy the structural problems highlighted by the present judgment ;

Stressing in particular the importance of prompt action by the authorities to remedy the overcrowding in those SIZOs where this problem still remains ( CARDINAL out of the CARDINAL NORP regions ) and to align the sanitary conditions of detention on the requirements of the LAW ,

CALLS UPON the NORP authorities to continue and enhance the ongoing reforms with a view to aligning the conditions of all pre - trial detention on the requirements of the LAW , particularly as set out in the PERSON judgment , so as effectively to prevent new , similar violations ... ”

On DATE ORG adopted Interim Resolution CM / ResDH(CARDINAL)CARDINAL on the execution of the CARDINAL judgments against GPE mainly concerning conditions of detention in remand prisons . It provided in particular as follows :

“ Having regard to the judgments in which the ORG has found violations of LAW in respect of the conditions under which the applicants were detained in remand prisons ( SIZOs ) which amounted to degrading treatment due , in particular , to the severe lack of personal space or to the combination of the space factor with other deficiencies of the physical detention conditions such as the impossibility of using the toilet in private , lack of ventilation , lack of access to natural light and fresh air , inadequate heating arrangements , and non - compliance with basic sanitary requirements ;

Recalling further that in a number of judgments the ORG found violations of LAW due to the unlawful detention of the applicants , its excessive length in the absence of relevant and sufficient grounds for prolonged detention and the lack of effective judicial review of the lawfulness of detention ;

Recalling finally that the ORG also found violations of LAW due to the lack of an effective domestic remedy in respect of conditions of detention on remand ;

Recalling that the existence of structural problems and the pressing need for comprehensive general measures were stressed by the ORG and acknowledged by the NORP authorities since the adoption by ORG judgment in the case of PERSON against GPE in DATE ...

As regards material conditions of detention :

Recalling that ... the creation of new places of detention can not in itself provide a lasting solution to the problem of prison overcrowding , and that this measure should be closely supported by others aimed at reducing the overall number of remand prisoners ;

Noting with satisfaction in this respect the NORP authorities’ position that there should be an integrated approach to finding solutions to the problem of overcrowding in remand prisons , including in particular changes to the legal framework , practices and attitudes ;

As regards the number of remand prisoners :

Recalling the constant position of ORG that , in view both of presumption of innocence and the presumption in favour of liberty , remand in custody shall be the exception rather than the norm and only a measure of last resort , and that to avoid inappropriate use of remand in custody the widest possible range of alternative , less restrictive measures shall be made available ;

Noting the repeated statements by the President of GPE and high - ranked officials , including ORG and the Minister of Justice , that CARDINAL of persons detained on remand PERCENT of those currently detained – should not have been deprived of their liberty , being suspected or accused of offences of low or medium gravity ;

Welcoming the unambiguous commitment , renewed at the highest political level , to change this unacceptable situation and to adopt urgent legislative and other measures to that effect ...

Noting that the statistical data provided demonstrates a slight but constant decrease in the overall number of remand prisoners ;

Further noting that the statistics nonetheless demonstrate wider yet still limited recourse to alternative preventive measures by the NORP courts , prosecutors and investigators ...

As regards remedies in respect of conditions of detention on remand :

Recalling the ORG ’s consistent position that available remedies are considered effective if they could have prevented violations from occurring or continuing , or could have afforded the applicant appropriate redress ;

Noting that the statistics and several cases presented to the ORG demonstrate a developing practice before domestic courts on compensation for non - pecuniary damage sustained in relation to poor conditions of detention in remand prisons ;

Noting further that in view of the problems at issue , any compensatory remedy should as far as possible be supplemented by other remedies capable of preventing violations of LAW ;

Noting in this respect information on the avenues provided by NORP legislation to address the violations of LAW at issue ;

Noting in particular the provisions of LAW of LAW and the Ruling of the Supreme Court of Russia of DATE providing the possibility to challenge before courts acts or inaction of remand prison administrations concerning improper detention conditions ;

Considering however that the effectiveness of this remedy in particular with regard to overcrowding , has not yet been demonstrated ;

ENCOURAGES the NORP authorities to pursue the ongoing reforms with a view to aligning the conditions of detention in remand prisons with the requirements of the LAW , taking also into account the relevant standards and recommendations of ORG for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment ,

EXPRESSES CONCERN that notwithstanding the measures adopted , a number of remand prisons in GPE still do not afford the personal space guaranteed by domestic legislation , and remain overpopulated ;

STRONGLY ENCOURAGES the NORP authorities to give priority to reforms aiming at reducing the number of persons detained on remand and to other measures combating the overcrowding of remand facilities by

• ensuring that judges , prosecutors and investigators consider and use detention on remand as a solution of last resort and make wider use of alternative preventive measures ;

• ensuring the availability at the national level of effective preventive and compensatory remedies allowing adequate and sufficient redress for any violation of LAW resulting from poor conditions of detention on remand ... ”

On DATE the ORG adopted pilot judgments in the cases of PERSON v. GPE ( no . CARDINAL ) and PERSON v. GPE ( no . CARDINAL/CARDINAL ) , in which it found under LAW that , for DATE , namely from DATE until DATE , the overcrowding in NORP remand centres had revealed a structural problem consisting of a “ practice that [ was ] incompatible with the Convention ” ( see § CARDINAL and § § CARDINAL , respectively ) .

On DATE the NORP ORG enacted a law amending LAW which entered into force on DATE . It introduced a number of new rules governing temporary placement of detainees in cells below the statutory norm of QUANTITY per inmate .

A new provision lists the emergency situations in which the prison governor may place a detainee for a specified period not longer than DATE in a cell in which the area per inmate will be QUANTITY but not QUANTITY . The situations include the introduction of martial law , natural disasters , epidemics , and a threat to prison security ( LAW CARDINAL ) . It also defines the categories of prisoners who may be held in such conditions for a period not exceeding DATE : recidivists , sexual offenders , escapees , temporary transfers from other prisons , etc . ( § CARDINAL ) . An appeal against the governor ’s decision lies with a penitentiary judge ( § CARDINAL ) . Detainees who have been placed in a cell with restricted personal space shall be assured TIME of DATE walks and a wider range of out - of - cell cultural , educational and sports activities ( § MONEY ) .

On DATE ORG allowed a cassation appeal by a prisoner against the dismissal of his claim for compensation in respect of an infringement of his personal rights on account of severe prison overcrowding ( CARDINAL inmates in a cell designed for QUANTITY persons ) . ORG reiterated that the right to be detained in conditions respecting one ’s dignity belonged to the catalogue of personal rights and that the ORG treasury should be liable for an infringement of such rights . It determined that the prison authorities had failed to show the existence of a “ particularly justified case ” for placement of detainees in an already overcrowded facility and in that way had acted unlawfully .

On DATE the ORG issued admissibility decisions in the cases of PERSON v. GPE ( no . CARDINAL/CARDINAL ) and PERSON v. GPE ( no . MONEY ) in the framework of the pilot - judgment procedure . It re - examined the applicants’ situation in the light of the above - mentioned developments at domestic level and found that ORG judgment of CARDINAL DATE constituted a material element which was indispensable for the consolidation of the previous practice of civil courts in cases concerning claims for compensation on account of prison overcrowding ( PERSON , § CARDINAL ) . Accordingly , the applicants were required to seek redress at domestic level and bring a civil action for compensation before NORP courts ( ibid . , § CARDINAL ) and their applications to the ORG were inadmissible for non - exhaustion of domestic remedies ( § CARDINAL ) . The ORG also noted that the amended LAW provided detainees with a new legal means for contesting the governor ’s decision to reduce the available cell space . It could not therefore be excluded that applicants would be required to make use of the new complaints system before applying to ORG ( § DATE ) .