Remainder inadmissible;Violations of Art. 3 (substantive aspect);No violation of Art. 6-1;Non-pecuniary damage - award

Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev

The applicant was born in DATE and lived before his arrest in GPE , GPE .

On DATE the applicant was arrested and DATE he was placed in detention facility no . IZ-CARDINAL/CARDINAL in GPE . On his admission to the facility he received a fluorography examination which revealed no signs of tuberculosis . On DATE the applicant underwent another fluorography test which also showed no symptoms of the illness .

On DATE the applicant was once again subjected to a fluorography examination which detected tuberculosis changes in his left lung . On the basis of that examination the applicant was diagnosed with infiltrative tuberculosis ( “ TB ” ) of the upper lobe of the left lung and transferred to the pulmonary tuberculosis ward of the medical department of the detention facility , where he remained until DATE .

Despite the ORG 's request for them to produce the applicant 's complete medical record , the ORG only submitted medical documents drawn up after DATE . Relying on a certificate issued by the head of the medical department of ORG , the Government argued that in facility no . PERSON the applicant had undergone an intensive course of anti - tuberculosis chemotherapy comprising CARDINAL unidentified drugs . As follows from that certificate , in DATE a positive dynamic in the treatment of the illness was registered . However , on DATE the applicant 's state of health seriously deteriorated . A medical examination by a tuberculosis specialist on DATE led to the applicant being diagnosed with acute viral respiratory infection . He was prescribed “ symptomatic treatment ” . A fluorography examination performed on DATE revealed a negative dynamic of the tuberculosis process showing an increase in the number of disintegration cavities . The doctor 's diagnosis was “ infiltrative tuberculosis of the upper lobe of the left lung in the disintegration phase , [ presence of mycobacterium tuberculosis ( “ ORG ” ) ] , progress of the tuberculosis process and CARDINAL stage hypotrophy ” . According to the same certificate , the regimen of anti - tuberculosis treatment received by the applicant was amended to take the deterioration of his health into account . The applicant was prescribed “ infusion chemotherapy ” , including a number of drugs ( izoniazid , ethambutol , and rifampicin ) and detoxication therapy .

An extract from the applicant 's medical record drawn up on DATE shows that the deterioration of the applicant 's health in DATE was linked to “ irregular medication ” .

On DATE the applicant was discharged from the medical department of the detention facility with a final diagnosis of infiltrative tuberculosis of the upper lobe of the left lung in the disintegration phase , and sent for subsequent treatment to tuberculosis hospital no . CARDINAL in GPE . On the applicant 's admission to the hospital the attending doctor made an entry in his medical record noting that the applicant was calm and collected , exhibiting strong determination to continue anti - tuberculosis treatment . The applicant did not make any complaints about the quality of the treatment provided to him in the tuberculosis hospital .

On DATE , following a series of examinations by a forensic medical commission , the applicant was assigned second degree disability status because of his tuberculosis . In DATE he underwent stabilising thoracoplasty followed by an intensive course of anti - tuberculosis chemotherapy . The applicant was recommended further surgery following his release from detention .

From DATE to CARDINAL DATE the applicant was detained in facility no . IZ-CARDINAL/CARDINAL . According to the applicant , that detention facility was built in DATE and no renovation work has been done on the cells since .

According to certificates issued on DATE by the director of the facility and produced by the ORG , the applicant was kept in CARDINAL different cells which measured CARDINAL , CARDINAL , CARDINAL , CARDINAL and QUANTITY . The smaller cells had CARDINAL sleeping places , the CARDINAL larger cells were equipped with CARDINAL bunks and the largest cell had CARDINAL sleeping places . The Government submitted that the information on the exact number of inmates detained together with the applicant was not available . They further noted that at all times the applicant had had an individual bunk and bedding .

Relying on the information provided by the director of the facility , the ORG further argued that the sanitary conditions in the cells were satisfactory . In particular , the ORG submitted that the cells received natural light and ventilation through a window measuring QUANTITY . The cells had no artificial ventilation . Each cell was equipped with a lavatory pan , a sink , a tap with running water , wooden benches and a table . Inmates were allowed to take a shower once DATE for TIME . Clean bedding was also provided once a week . The cells were disinfected . Inmates were afforded an hour of outdoor recreation per day in QUANTITY equipped with wooden benches and covered by a shed roof against rain and snow . The Government , relying on the information provided by the director of the facility , further stated that the applicant was given food “ in accordance with the established norms ” .

The applicant did not dispute the cell measurements . However , relying on submissions by his former fellow inmates whose complaints about the conditions of detention in facility no . PERSON had already been examined by ORG ( see , among other authorities , PERSON v. GPE , no . CARDINAL/CARDINAL , § § CARDINAL - CARDINAL , CARDINAL DATE , and PERSON v. GPE , no . CARDINAL/CARDINAL , § § CARDINAL - CARDINAL , DATE ) , he alleged that the cell which measured QUANTITY had had CARDINAL sleeping places and had usually housed CARDINAL inmates . The smallest cells , which measured QUANTITY , had either CARDINAL or CARDINAL sleeping places and accommodated from CARDINAL detainees . The remaining CARDINAL cells were equipped with CARDINAL sleeping places and housed CARDINAL inmates . Given the lack of beds , inmates had slept in shifts . They were not provided with bedding .

The applicant further submitted that the sanitary conditions had been appalling . The cells were infested with insects but the management did not provide any insecticide . The walls in the cells were covered with a thick layer of mould . Pieces of plaster were falling from the walls . The applicant submitted that the windows were covered with metal blinds which blocked access to natural light and air . It was not before DATE , that is long after his transfer to another detention facility , that the metal blinds were removed in compliance with the recommendations of ORG . It was impossible to take a shower as inmates were given TIME and two to CARDINAL men had to use CARDINAL shower head at the same time . That situation was further aggravated by the fact that inmates could only take a shower once DATE . Inmates had to wash and dry their laundry indoors , creating excessive humidity in the cells . They were also allowed to smoke in the cells . The toilet was a filthy hole in the floor , separated from the living area by a small partition , and spread an unpleasant odour in the cell . At no time did inmates have complete privacy . Anything they happened to be doing – using the toilet , sleeping DATE was in view of the guard or fellow inmates . No toiletries were provided . The food was of poor quality and in scarce supply .

The applicant complained to various NORP authorities , including ORG , about the poor conditions of his detention . On DATE the applicant received a letter from the ORG which , in so far as relevant , read as follows :

“ An inspection , performed by ORG on DATE in the detention facility established that [ each inmate ] has QUANTITY of personal space while the required norm is QUANTITY for each detainee , thus the constitutional rights of detained individuals are being violated . Other violations of sanitary norms and [ norms ] related to medical assistance were discovered and the Ombudsman recommended the head of detention facility no . GPE to eliminate [ those violations ] . ”

On DATE the applicant lodged an action against detention facility no . IZ-CARDINAL/CARDINAL and ORG seeking compensation for damage caused to his health because he had contracted tuberculosis in detention , had been denied access to adequate medical services and had been detained in appalling conditions for DATE after his arrest .

On DATE ORG of FAC dismissed the action , reasoning that as the applicant had been medically examined on his admission to facility no . IZ-CARDINAL/CARDINAL , had remained under constant medical supervision and had shared cells with healthy inmates , there was no evidence of fault on the part of the facility administration for the damage caused to his health . In addressing the applicant 's complaint about the poor conditions of his detention and a possible link between the detention conditions and his having been infected with tuberculosis , ORG found as follows :

“ [ The applicant 's ] arguments that sanitary requirements were not complied with in the detention facility are unsubstantiated , as the representative of the detention facility refuted those arguments ... despite the fact that the facility premises need reconstruction , all sanitary measures are taken in the facility ; tuberculosis patients take showers separately from healthy inmates , then the premises are disinfected . There are separate premises for outdoor walks for tuberculosis patients . Those premises are also disinfected .

It was established in the course of the hearing that [ the applicant ] had not had tuberculosis before or been registered as a tuberculosis patient , and that his tuberculosis had been detected for the first time in the detention facility .

However , that circumstance can not serve as a ground for upholding the plaintiff 's claims , because the cause of the illness was not established and the prison authorities were not at fault ; furthermore , there was no action / inaction on the part of the prison administration which could have created the conditions for the development of the plaintiff 's illness .

The overcrowding in the cells of the detention facility is an objective circumstance which was not caused by the facility administration and , moreover , the court did not establish a direct causal link between the overcrowding in the cells where [ the applicant ] was detained and his illness . ”

The applicant participated in the hearings before ORG .

NORP The applicant appealed , and sought leave to attend the appeal hearing .

On DATE , in the absence of the applicant , who had not been notified of the hearing , ORG upheld the judgment of DATE . ORG concluded that the fact that the applicant had contracted tuberculosis in the detention facility “ could not serve as evidence of the defendant 's fault in having caused the illness ” because the cause of the tuberculosis had not been and could not be established .

On DATE the President of ORG lodged an application for supervisory review of the judgment of DATE , arguing as follows :

“ In violation of the requirements of LAW the [ Regional ] Court examined the case upon [ the applicant 's ] action although there was no evidence that the plaintiff had been notified of the date and place of the court hearing .

[ The applicant ] is in detention and was not brought to the court , however , he has the right to submit his arguments , [ or ] participate in the proceedings through his representative ... and , thus , he has to be promptly notified of DATE of the examination of the case . ”

On DATE the Presidium of ORG accepted the application for supervisory review , quashed the judgment of DATE , having endorsed the arguments of ORG President , and sent the case for fresh examination by the appeal court .

In DATE the applicant lodged an additional statement of appeal , informing ORG that he had appointed CARDINAL lawyers to represent him during the appeal proceedings . He also noted that in the event of the lawyers ' failure to appear , ORG should issue the judgment in their absence . No request for leave for the applicant to appear before ORG was filed .

By a letter of CARDINAL DATE ORG informed the applicant 's lawyers and the applicant that a hearing had been scheduled for DATE .

On DATE ORG , having examined the case on the basis of the parties ' written submissions as the applicant 's representatives and the respondent party failed to appear , upheld the judgment of DATE . ORG confirmed ORG findings that the applicant had been healthy before his placement in custody , and that tuberculosis had only been detected DATE after his admission to the detention facility . It further endorsed ORG conclusion that it was impossible to establish the cause of the illness and that there was no fault on the part of the facility administration in the deterioration of the applicant 's health . Without providing any details , ORG further stressed that the applicant had been subjected to regular medical check - ups during his detention and that he had received the necessary medical assistance . It also noted that the fact that the cells in the detention facility had housed CARDINAL times more detainees than they had been designed to accommodate could not be the cause of the applicant 's illness .

The applicant was served with a copy of the judgment on DATE .

“ CARDINAL . Provision of anti - tuberculosis aid to individuals suffering from tuberculosis is guaranteed by the ORG and is performed on the basis of the principles of legality , compliance with the rights of the individual and citizen , [ and ] general accessibility in the amount determined by ORG guarantees for provision of medical assistance to citizens of GPE , free of charge .

Anti - tuberculosis aid shall be provided to citizens when they voluntarily apply [ for such aid ] or when they consent [ to such aid ] , save for cases indicated in Sections CARDINAL and CARDINAL of the present Federal law and other federal laws ... ”

“ CARDINAL . Individuals suffering from tuberculosis who are in need of anti - tuberculosis aid shall receive such aid in medical anti - tuberculosis facilities licensed to provide [ it ] .

Individuals who are or have been in contact with an individual suffering from tuberculosis shall undergo an examination for the detection of tuberculosis in compliance with the laws of GPE ... ”

Regular medical examinations of persons suffering from tuberculosis shall be performed in compliance with the procedure laid down by a competent federal executive body ...

Regular medical examinations of persons suffering from tuberculosis shall be performed irrespective of the patients ' or their representatives ' consent .

A medical commission appointed by the head of a medical anti - tuberculosis facility ... shall take decisions authorising regular medical examinations or terminating them and record such decisions in medical documents ... ; an individual in respect of whom such a decision has been issued , shall be informed in writing about the decision taken . ”

“ CARDINAL . Individuals suffering from contagious forms of tuberculosis who ... intentionally avoid medical examinations aimed at detecting tuberculosis , or avoid treating it , shall be admitted , by court decision , to specialised medical anti - tuberculosis establishments for mandatory examinations and treatment . ”

“ CARDINAL . Individuals admitted to medical anti - tuberculosis facilities for examinations and ( or ) treatment , shall have a right to :

receive information from the administration of the medical anti - tuberculosis facilities on the progress of treatment , examinations ...

have meetings with lawyers and clergy in private ;

take part in religious ceremonies , if they do not have a damaging impact on the state of their health ;

continue their education ...

Individuals ... suffering from tuberculosis shall have other rights provided for by the laws of GPE on health care ... ”

“ Individuals ... suffering from tuberculosis shall ;

submit to medical procedures authorised by medical personnel ;

comply with the internal regulations of medical anti - tuberculosis facilities when they stay at those facilities ;

comply with sanitary and hygiene conditions established for public places when persons not suffering from tuberculosis [ visit them ] . ”

“ CARDINAL . Individuals ... suffering from tuberculosis shall be provided with medication free of charge for out - patient treatment of tuberculosis by federal specialised medical facilities in compliance with the procedure established by the Government of GPE ... ”

NORP law gives detailed guidelines for the provision of medical assistance to detained individuals . These guidelines , found in joint Decree no . CARDINAL/CARDINAL of ORG and ORG , on ORG or Detained ( “ the Regulation ” ) , enacted on DATE , are applicable to all detainees without exception . In particular , section III of the Regulation sets out the procedure for initial steps to be taken by medical personnel of a detention facility on admission of a detainee . On arrival at a temporary detention facility all detainees must be subjected to preliminary medical examination before they are placed in cells shared by other inmates . The examination is performed with the aim of identifying individuals suffering from contagious diseases or in need of urgent medical assistance . Particular attention must be paid to individuals suffering from contagious conditions . DATE after the detainee 's arrival at the detention facility , he should receive an in - depth medical examination , including fluorography . During the in - depth examination a prison doctor should record the detainee 's complaints , study his medical and personal history , record injuries if present , and recent tattoos , and schedule additional medical procedures if necessary . A prison doctor should also authorise laboratory analyses to identify sexually transmitted diseases , HIV , tuberculosis and other illnesses .

Subsequent medical examinations of detainees are performed at least twice a DATE or at detainees ' request . If a detainee 's state of health has deteriorated , medical examinations and assistance should be provided by medical personnel of the detention facility . In such cases a medical examination should include a general medical check - up and additional methods of testing , if necessary , with the participation of particular medical specialists . The results of the examinations should be recorded in the detainee 's medical history . The detainee should be fully informed of the results of the medical examinations .

Section III of the ORG also sets the procedure for cases of refusals by detainees to undergo medical examination or treatment . In each case of refusal , a corresponding entry should be made in the detainees ' medical record . A prison doctor should fully explain to the detainee the consequences of his refusal to undergo the medical procedure .

Detainees take prescribed medicines in the presence of a doctor . In a limited number of cases the head of the medical department of the detention facility may authorise his medical personnel to hand over a DATE dose of medicines to the detainee for unobserved intake .

Section X of the Regulation regulates medical examinations , monitoring and treatment of detainees suffering from tuberculosis . It lays down a detailed account of medical procedures to be employed , establishes their frequency , and regulates courses of treatment for new tuberculosis patients and previously treated ones ( relapsing or defaulting detainees ) . In particular , it provides that when a detainee exhibits signs of a relapse of tuberculosis , he or she should immediately be removed to designated LOC ( infectious unit of the medical department of the facility ) and should be sent for treatment to an anti - tuberculosis establishment . The prophylactic and anti - relapse treatment of tuberculosis patients should be performed by a tuberculosis specialist . Rigorous checking of the intake of anti - tuberculosis drugs by the detainee should be put in place . Each dose should be recorded in the detainee 's medical history . A refusal to take anti - tuberculosis medicine should also be noted in the medical record . A discussion of the negative effects of the refusal should follow . Detainees suffering from tuberculosis should also be put on a special dietary ration .

On DATE ORG adopted Decree no . CARDINAL on Improvement of Anti - Tuberculosis Measures in GPE ( “ LAW ” or “ Decree ” ) . Having acknowledged a difficult epidemic situation in GPE in connection with a drastic increase in the number of individuals suffering from tuberculosis , particularly among children and detainees , and a substantial rise in the number of tuberculosis - related deaths , the Decree laid down guidelines and recommendations for country - wide prevention , detection and therapy of tuberculosis which conform to international standards , identifying forms and types of tuberculosis and categories of patients suffering from them , establishing types of necessary medical examinations , analyses and testing to be performed in each case and giving extremely detailed instructions on their performance and assessment ; it also laid down rules on vaccination , determined courses and regimens of therapy for particular categories of patients , and so on .

NORP In particular , Addendum CARDINAL to the Decree contains an Instruction on chemotherapy for tuberculosis patients . The aims of treatment , essential anti - tuberculosis drugs and their dose combinations , as well as standard regimens of chemotherapy laid down by the ORG for NORP tuberculosis patients conformed to those recommended by ORG in Treatment of Tuberculosis : ORG ( see below ) .

Section CARDINAL of ORG no . CARDINALFZ of DATE ) provides that detainees should be given free food sufficient to maintain them in good health according to standards established by the Government of GPE . Section CARDINAL provides that 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 . Each inmate should have QUANTITY of personal space in his or her cell .

In DATE , following the inspection in DATE of penitentiary facilities in LOC , ORG published his report which , in so far as relevant , read as follows :

“ CARDINAL of the most acute problems continues to be the problem of medical and sanitary assistance [ provided to ] detainees . The medical [ and ] sanitary assistance provided in the prison system does not ensure the preservation and improvement of [ detainees ' ] health , and the financial resources available are insufficient to meet the detainees ' needs in terms of medical and sanitary assistance . In fact , penitentiary institutions and temporary detention facilities are frequently left without any financial resources to purchase medical equipment or medicines , in serious violation of the right to health and medical assistance guaranteed by LAW .

A particular concern is the contraction of tuberculosis in those institutions ...

In DATE [ ORG of ORG ] received CARDINAL complaints ( including CARDINAL collective complaints ) from detainees , CARDINAL of which concerned medical assistance ...

According to information supplied by [ ORG of ORG ] , CARDINAL persons are detained in [ facility no . IZ-CARDINAL/CARDINAL ] ...

ORG received CARDINAL complaints from persons detained in facility no . IZ-CARDINAL/CARDINAL ...

In DATE the ORG visited the detention facility . During the visit the ORG identified the following violations : overpopulation [ of the facility ] ( CARDINAL instances ) ; shortage of bedding ; absence of radio in certain cells ; complete absence of TV sets or refrigerators ; limitation of the time for outside walks ... ; insufficient medical assistance .

[ Facility no . IZ-CARDINAL/CARDINAL ] was built before the war ; it requires complete reconstruction . During DATE the detention facility has always been overpopulated , housing CARDINAL times more inmates than it should ; management are therefore unable to comply with the minimum space requirement per inmate . While the rule is QUANTITY of living space per inmate , inmates in the detention facility have QUANTITY each . Persons whose guilt [ in having committed crimes ] has not yet been established by a court are detained in conditions which diminish their human dignity and frequently cause harm to their health . ”

Article CARDINAL § CARDINAL of LAW of GPE provides that damage caused to the person or property of a citizen shall be compensated in full by the tortfeasor . Pursuant to Article CARDINAL , ORG agencies and ORG officials are liable for damage caused to an individual by their unlawful actions or failure to act . Such damage is to be compensated at the expense of the federal or regional treasury . ORG CARDINAL and QUANTITY of LAW provide for compensation for non - pecuniary damage . Article CARDINAL states , in particular , that non - pecuniary damage shall be compensated irrespective of any award for pecuniary damage .

The Code of Civil Procedure of GPE provides that individuals may appear before a court in person or act through a representative ( LAW ) . The court may appoint an advocate to represent a defendant whose place of residence is not known ( LAW . LAW ( Law no . CARDINAL-FZ of DATE ) provides that free legal assistance may be provided to indigent plaintiffs in civil disputes concerning alimony or pension payments or claims concerning damage to health ( section CARDINAL § CARDINAL ) .

The Penitentiary Code provides that convicted persons may be transferred from a correctional colony to an investigative unit if their participation is required as witnesses , victims or suspects in connection with certain investigative measures ( LAW ) . The LAW does not mention any possibility for a convicted person to take part in civil proceedings , whether as a plaintiff or a defendant .

On several occasions ORG has examined complaints by convicted persons whose requests for leave to appear in civil proceedings were refused by the courts . It has consistently declared the complaints inadmissible , finding that the impugned provisions of LAW and LAW did not , as such , restrict the convicted person 's access to court . It has emphasised , nonetheless , that the convicted person should be able to make submissions to the civil court , either through a representative or in any other way provided for by law . If necessary , the hearing may be held at the location where the convicted person is serving his or her sentence , or the court hearing the case may instruct the court with territorial jurisdiction over the correctional colony to obtain the applicant 's submissions or carry out any other procedural steps ( decisions no . CARDINAL-O of DATE , no . CARDINAL of DATE and no . CARDINAL of DATE ) .

By virtue of Articles CARDINAL and CARDINAL of the Code of Civil Procedure , a court may hold a session outside the courthouse if , for instance , it is necessary to examine evidence which can not be brought to the courthouse .

ORG provide a framework of guiding principles for health services . The relevant extracts from the Rules read as follows :

“ Health care

Prison authorities shall safeguard the health of all prisoners in their care .

Organisation of prison health care

CARDINAL ORG services in prison shall be organised in close relation with the general health administration of the community or nation .

CARDINAL ORG policy in prisons shall be integrated into , and compatible with , national health policy .

CARDINAL Prisoners shall have access to the health services available in the country without discrimination on the grounds of their legal situation .

CARDINAL ORG services in prison shall seek to detect and treat physical or mental illnesses or defects from which prisoners may suffer .

CARDINAL NORP All necessary medical , surgical and psychiatric services including those available in the community shall be provided to the prisoner for that purpose .

Medical and health care personnel

CARDINAL Every prison shall have the services of CARDINAL qualified general medical practitioner .

CARDINAL Arrangements shall be made to ensure at all times that a qualified medical practitioner is available without delay in cases of urgency .

CARDINAL Every prison shall have personnel suitably trained in health care .

Duties of the medical practitioner

CARDINAL NORP The medical practitioner or a qualified nurse reporting to such a medical practitioner shall see every prisoner as soon as possible after admission , and shall examine them unless this is obviously unnecessary .

CARDINAL When examining a prisoner the medical practitioner or a qualified nurse reporting to such a medical practitioner shall pay particular attention to :

b. diagnosing physical or mental illness and taking all measures necessary for its treatment and for the continuation of existing medical treatment ;

PERSON isolating prisoners suspected of infectious or contagious conditions for the period of infection and providing them with proper treatment ;

CARDINAL NORP The medical practitioner shall have the care of the physical and mental health of the prisoners and shall see , under the conditions and with a frequency consistent with health care standards in the community , all sick prisoners , all who report illness or injury and any prisoner to whom attention is specially directed .

Health care provision

CARDINAL Sick prisoners who require specialist treatment shall be transferred to specialised institutions or to civil hospitals when such treatment is not available in prison .

CARDINAL Where a prison service has its own hospital facilities , they shall be adequately staffed and equipped to provide the prisoners referred to them with appropriate care and treatment . ”

The complexity and importance of health care services in detention facilities was discussed by ORG for the Prevention of Torture in its ORG ( ORG ( CARDINAL ) CARDINAL - Publication Date : DATE ) . The following are the extracts from the Report :

“ CARDINAL . When entering prison , all prisoners should without delay be seen by a member of the establishment 's health care service . In its reports to date the ORG has recommended that every newly arrived prisoner be properly interviewed and , if necessary , physically examined by a medical doctor as soon as possible after his admission . It should be added that in some countries , medical screening on arrival is carried out by a fully qualified nurse , who reports to a doctor . This latter approach could be considered as a more efficient use of available resources .

It is also desirable that a leaflet or booklet be handed to prisoners on their arrival , informing them of the existence and operation of the health care service and reminding them of basic measures of hygiene .

While in custody , prisoners should be able to have access to a doctor at any time , irrespective of their detention regime ... The health care service should be so organised as to enable requests to consult a doctor to be met without undue delay ...

A prison 's health care service should at least be able to provide regular outpatient consultations and emergency treatment ( of course , in addition there may often be a hospital - type unit with beds ) ... Further , prison doctors should be able to call upon the services of specialists .

As regards emergency treatment , a doctor should always be on call . Further , someone competent to provide first aid should always be present on prison LOC , preferably someone with a recognised nursing qualification .

Out - patient treatment should be supervised , as appropriate , by health care staff ; in many cases it is not sufficient for the provision of follow - up care to depend upon the initiative being taken by the prisoner .

The direct support of a fully - equipped hospital service should be available , in either a civil or prison hospital ...

A prison health care service should be able to provide medical treatment and nursing care , as well as appropriate diets , physiotherapy , rehabilitation or any other necessary special facility , in conditions comparable to those enjoyed by patients in the outside community . Provision in terms of medical , nursing and technical staff , as well as LOC , installations and equipment , should be geared accordingly .

There should be appropriate supervision of the pharmacy and of the distribution of medicines . Further , the preparation of medicines should always be entrusted to qualified staff ( pharmacist / nurse , etc . ) . ...

A medical file should be compiled for each patient , containing diagnostic information as well as an ongoing record of the patient 's evolution and of any special examinations he has undergone . In the event of a transfer , the file should be forwarded to the doctors in the receiving establishment .

Further , DATE registers should be kept by health care teams , in which particular incidents relating to the patients should be mentioned . Such registers are useful in that they provide an overall view of the health care situation in the prison , at the same time as highlighting specific problems which may arise .

NORP The smooth operation of a health care service presupposes that doctors and nursing staff are able to meet regularly and to form a working team under the authority of a senior doctor in charge of the service . ...

A prison health care service should ensure that information about transmittable diseases ( in particular hepatitis , AIDS , tuberculosis , dermatological infections ) is regularly circulated , both to prisoners and to prison staff . Where appropriate , medical control of those with whom a particular prisoner has regular contact ( fellow prisoners , prison staff , frequent visitors ) should be carried out . ”

A further elaboration of NORP expectations towards health care in prisons is found in the appendix to Recommendation no . R ( CARDINAL ) CARDINAL of ORG on the ethical and organisational aspects of health care in prison ( adopted on DATE at the ORG meeting of ORG ) . Primarily restating ORG and ORG standards , the Recommendation went beyond reiteration of the principles in some aspects to include more specific discussion of the management of certain common problems including transmissible diseases . In particular , in respect of cases of tuberculosis , ORG stressed that all necessary measures should be applied to prevent the propagation of this infection , in accordance with relevant legislation in this area . Therapeutic intervention should be of a standard equal to that outside prison . The medical services of the local chest physician should be requested in order to obtain the long - term advice that is required for this condition , as is practised in the community , in accordance with relevant legislation ( Section CARDINAL ) .

The fact that transmissible diseases in NORP prisons have become an issue of considerable concern prompted a recommendation of ORG concerning prison and criminological aspects of the control of transmissible diseases and related health problems in prison ( adopted on DATE at the CARDINALth meeting of ORG ) . The relevant extracts from the Recommendation read as follows :

“ CARDINAL . The systematic medical examination carried out on entry into prison should include measures to detect intercurrent diseases , including treatable infectious diseases , in particular tuberculosis . The examination also gives the opportunity to provide health education and to give prisoners a greater sense of responsibility for their own health ....

Adequate financial and human resources should be made available within the prison health system to meet not only the problems of transmissible diseases and HIV / Aids but also all health problems affecting prisoners . ”

An expanded coverage of the issue related to transmissible diseases in detention facilities was given by ORG for the Prevention of Torture in its CARDINALth ORG ( ORG ( DATE ) CARDINAL published on DATE ) , a discussion prompted by findings of serious inadequacies in health provision and poor material conditions of detention which were exacerbating the transmission of the diseases . Addressing the issue , the ORG reported as follows :

“ CARDINAL . The spread of transmissible diseases and , in particular , of tuberculosis , hepatitis and HIV / AIDS has become a major public health concern in a number of NORP countries . Although affecting the population at large , these diseases have emerged as a dramatic problem in certain prison systems . In this connection the ORG has , on a number of occasions , been obliged to express serious concerns about the inadequacy of the measures taken to tackle this problem . Further , material conditions under which prisoners are held have often been found to be such that they can only favour the spread of these diseases .

The ORG is aware that in periods of economic difficulties - such as those encountered DATE in many countries visited by the ORG - sacrifices have to be made , including in penitentiary establishments . However , regardless of the difficulties faced at any given time , the act of depriving a person of his liberty always entails a duty of care which calls for effective methods of prevention , screening , and treatment . Compliance with this duty by public authorities is all the more important when it is a question of care required to treat life - threatening diseases .

The use of up - to date methods for screening , the regular supply of medication and related materials , the availability of staff ensuring that prisoners take the prescribed medicines in the right doses and at the right intervals , and the provision when appropriate of special diets , constitute essential elements of an effective strategy to combat the above - mentioned diseases and to provide appropriate care to the prisoners concerned . Similarly , material conditions in accommodation for prisoners with transmissible diseases must be conducive to the improvement of their health ; in addition to natural light and good ventilation , there must be satisfactory hygiene as well as an absence of overcrowding .

Further , the prisoners concerned should not be segregated from the rest of the prison population unless this is strictly necessary on medical or other grounds ...

In order to dispel misconceptions on these matters , it is incumbent on national authorities to ensure that there is a full educational programme about transmissible diseases for both prisoners and prison staff . Such a programme should address methods of transmission and means of protection as well as the application of adequate preventive measures .

It must also be stressed that appropriate information and counselling should be provided before and - in the case of a positive result - after any screening test . Further , it is axiomatic that patient - related information should be protected by medical confidentiality . As a matter of principle , any interventions in this area should be based on the informed consent of the persons concerned .

Moreover , for control of the above - mentioned diseases to be effective , all the ministries and agencies working in this field in a given country must ensure that they co - ordinate their efforts in the best possible way . In this respect the ORG wishes to stress that the continuation of treatment after release from prison must be guaranteed . ”

The ORG report on the visit to GPE carried out from DATE ( CPT / INF ( DATE ) CARDINAL ) provides as follows :

“ CARDINAL . The ORG is also seriously concerned by the practice of transferring back from GPE [ temporary detention facility ] to ORG [ temporary detention ward in police departments ] facilities prisoners diagnosed to have BK+ tuberculosis ( and hence highly contagious ) , as well as by the interruption of ORG treatment while at the ORG . An interruption of the treatment also appeared to occur during transfers between penitentiary establishments .

In the interest of combating the spread of tuberculosis within the law - enforcement and penitentiary system and in society in general , the ORG recommends that immediate measures be taken to put an end to the above - mentioned practice . ”

DATE . On DATE ORG published LAW no . PERSON , Volume I ) on a loan granted to GPE for its Tuberculosis and ORG . The relevant part of the ORG read as follows :

“ According to ORG ) , GPE was one of the CARDINAL high - burden countries for GPE in the world ( WHO , Global Tuberculosis control : ORG , GPE , DATE ) . The incidence of GPE increased throughout DATE . This was due to a combination of factors , including : ( i ) increased poverty , ( ii ) under - funding of TB services and health services in general , ( iii ) diagnostic and therapeutic approaches that were designed for a centralized command - and - control TB system , but were unable to cope with the social mobility and relative freedom of the post - NORP era , and ( iv ) technical inadequacies and outdated equipment . Migration of populations from ex - NORP republics with high GPE burdens also increased the problem . Prevalence rates were many times higher in the prison system than in the general population . Treatment included lengthy hospitalizations , variations among clinicians and patients in the therapeutic regimen , and frequent recourse to surgery . A shrinking health budget resulted in an erratic supply of anti - TB drugs and laboratory supplies , reduced quality control in GPE dispensaries and laboratories , and inadequate treatment . The social conditions favouring the spread of GPE , combined with inadequate systems for diagnosis , treatment , and surveillance , as well as increased drug resistance , produced a serious public health problem .

TB control in the former ORG ( GPE ) and in most of GPE in DATE was heavily centralized , with separate hospitals ( TB dispensaries ) , TB sanatoriums , GPE research institutes and GPE specialists . The system was designed in DATE to address the challenges of the TB epidemic . Case detection relied strongly on active mass screening by PERSON ( fluorography ) . Specificity , sensitivity , and cost - effectiveness considerations were not features of this approach . PERSON ( ORG ) immunization was a key feature of the TB control system ...

By DATE , there was CARDINAL - fold increase in GPE incidence , and mortality from GPE increased CARDINAL times , compared with DATE . The lowered treatment effectiveness of DATE resulted in an increase in the number of TB chronic patients , creating a permanent ' breeding ground ' for the infection . At that moment , the share of pulmonary GPE cases confirmed by bacterioscopy did not exceed PERCENT , and the share of such cases confirmed by culture testing was PERCENT due to suboptimal effectiveness of laboratory diagnosis , which led to poor detection of smear - positive GPE cases . Being a social disease , GPE affected the most socially and economically marginalized populations in GPE . ”

The following are the extracts from Treatment of Tuberculosis : ORG , DATE , pp . CARDINAL , CARDINAL and CARDINAL :

“ Treatment regimens have an initial ( intensive ) phase lasting DATE and a continuation phase usually lasting DATE . During the initial phase , consisting usually of CARDINAL drugs , there is rapid killing of tubercle bacilli . Infectious patients become non - infectious within DATE . Symptoms improve . The vast majority of patients with sputum smear - positive ORG become smear - negative within DATE . In the continuation phase fewer drugs are necessary but for a longer time . The sterilizing effect of the drugs eliminates remaining bacilli and prevents subsequent relapse .

In patients with smear positive pulmonary GPE , there is a risk of selecting resistant bacilli , since these patients harbour and excrete a large number of bacilli . Short - course chemotherapy regimens consisting of CARDINAL drugs during the initial phase , and CARDINAL drugs during the continuation phase , reduce this risk of selecting resistant bacilli . These regimens are practically as effective in patients with initially resistant organisms as in those with sensitive organisms .

In patients with smear negative pulmonary or extra - pulmonary ORG there is little risk of selecting resistant bacilli since these patients harbour fewer bacilli in their lesions . Short - course chemotherapy regimens with CARDINAL drugs during the initial phase , and CARDINAL drugs in the continuation phase , are of proven efficacy ...

Patients with sputum smear - positive pulmonary ORG should be monitored by sputum smear examination . This is the only group of GPE patients for whom bacteriological monitoring is possible . It is unnecessary and wasteful of resources to monitor the patient by chest radiography . For patients with sputum smear - negative pulmonary ORG and extra - pulmonary GPE , clinical monitoring is the usual way of assessing response to treatment . Under programme conditions in high GPE incidence countries , routine monitoring by sputum culture is not feasible or recommended . Where facilities are available , culture surveys can be useful as part of quality control of diagnosis by smear microscopy ...

Directly observed treatment is CARDINAL element of the ORG strategy , i.e. the ORG recommended policy package for ORG control . Direct observation of treatment means that a supervisor watches the patient swallowing the tablets . This ensures that a GPE patient takes the right drugs , in the right doses , at the right intervals ...

Many patients receiving self - administered treatment will not adhere to treatment . It is impossible to predict who will or will not comply , therefore directly observed treatment is necessary at least in the initial phase to ensure adherence . If a TB patient misses CARDINAL attendance to receive treatment , it is necessary to find that patient and continue treatment . ”


Preliminary objection dismissed (non-exhaustion of domestic remedies);Violation of Art. 6-1 with regard to impartiality;Not necessary to examine Art. 6-1 with regard to fairness;Not necessary to examine under Art. 13;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award

The applicant was born in DATE and lives in GPE .

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

On DATE the applicant was served a notice of dismissal from job under LAW ( f ) of LAW for an especially serious breach of work discipline in that he had been absent from his work for DATE without an excuse .

On DATE GPE ORG ( then ORG , at present ORG súd ) rejected the applicant ’s request for a judicial ruling declaring the dismissal null and void .

On DATE a threejudge Chamber of ORG ( then ORG súd , at present PERSON súd ) dismissed the applicant ’s appeal and upheld the judgment of DATE . The ORG deciding on the appeal included judge S.

On DATE the applicant and his wife took civil proceedings against the legal successor of his former employer before the Bratislava I ORG . They sought the applicant ’s rehabilitation under LAW ( Law no . PERSON . - PERSON o mimosúdnych rehabilitáciách ) in respect of his dismissal in DATE .

In a judgment of DATE , following a hearing held on DATE , the Bratislava I ORG considered that the action aimed at obtaining a judicial order to the defendant to issue a formal confirmation that the applicant had been dismissed in DATE for politically motivated reasons and in violation of fundamental human rights and freedoms within the meaning of section CARDINAL ( CARDINAL ) of LAW . The court rejected the action as being unsubstantiated .

On DATE the applicant and his wife appealed to ORG and , on DATE , they supplemented the appeal ( odvolanie ) . They argued that ORG had misinterpreted the action in that it had not been aimed at obtaining a judicial order against the defendant , but at obtaining a declaratory judgment to the effect that the applicant ’s dismissal had been based on the grounds referred to in section CARDINAL ( CARDINAL ) of LAW . They further complained that ORG had overlooked the fact that the action had also been brought by the applicant ’s wife .

On DATE ORG quashed ORG judgment of DATE and remitted the case to ORG , holding that the latter had failed to determine the action insofar as it had been brought by the applicant ’s wife .

On DATE , following a hearing held on DATE , ORG again dismissed the action after examining testimonies of the parties , the applicant ’s personal file with his former employer and the casefile concerning the applicant ’s proceedings in DATE . ORG found it established that the applicant had been dismissed from his work in DATE for unauthorised absence for DATE , i.e. an especially serious breach of work discipline which had had no political subtext . In so far as the applicant relied on section CARDINAL § CARDINAL ( c ) of the Extra - Judicial Rehabilitations Act , he had failed to prove that his dismissal had been for reasons of political persecution or in violation of generally recognised human rights and freedoms . ORG finally found that the applicant ’s wife had no cause of action in the case , in that the dismissal did not directly concern her .

On DATE the applicant and his wife filed an appeal with ORG and on DATE they submitted further particulars of the appeal . They argued that ORG had misinterpreted the action , incorrectly interpreted and assessed the facts and arbitrarily dismissed the action .

On DATE , following a hearing of the appeal held on DATE , ORG upheld ORG judgment of CARDINAL DATE and granted leave for an appeal on points of law to ORG . It held that ORG had adequately established the facts of the case and concurred with its factual and legal conclusions .

On DATE , through his lawyer , the applicant filed an appeal on points of law ( dovolanie ) with ORG . He argued that the lower courts had erred in their determination of the facts and law in his case .

In reply to the appeal on points of law , the defendant filed observations which however the courts did not transmit to the applicant .

On DATE a CARDINAL - judge ORG rejected the appeal on points of law after deliberating in camera . As to the defendant ’s observations in reply to the appeal on points of law , ORG noted that the defendant had invited ORG to reject that appeal as unfounded since the lower courts’ decisions had been correct and the appeal had produced no new relevant information . ORG found that ORG and ORG had adequately established the relevant facts and fully endorsed their factual and legal conclusions . ORG further discerned no procedural or other flaws within the meaning of Articles CARDINAL and CARDINAL § CARDINAL of the Code of Civil Procedure . ORG included judge PERSON who had been a member of the threejudge Chamber of ORG that , on DATE , had rejected the applicant ’s appeal in the proceedings on his dismissal in DATE . No appeal lay against ORG judgment .

The purpose of LAW , as set out in LAW , is to endeavour to mitigate the consequences of certain injustices and property losses occurring between CARDINAL DATE and DATE by acts falling within the sphere of civil law and labour law , and by administrative acts incompatible with the principles of a NORP society respecting the rights of citizens as enshrined in the Charter of ORG and LAW .

Pursuant to section DATE ( CARDINAL ) , legal acts terminating a person ’s contract of employment for reasons of political persecution or in violation of generally recognised human rights and freedoms are to be considered void . Under its letter ( c ) this provision applies , among others , to situations where the person concerned was dismissed under LAW ( Law no . CARDINAL/CARDINAL Coll . ) , as amended by amendment no . CARDINAL/CARDINAL Coll . , on the ground that he or she had acted in violation of the socialist social order and , therefore , lacked the confidence requisite for continuing in his or her function or position .

Section CARDINAL ( CARDINAL ) provides that the former employer or its legal successor shall issue , at the request of the person concerned , a certificate that the latter ’s contract of employment was terminated for reasons mentioned in LAW ( CARDINAL ) . Paragraph CARDINAL of this section entitles the person concerned to claim the determination of this issue by a court when the certificate is not delivered within DATE .

The rules concerning disqualification of judges are laid down in ORG DATE . Under Article CARDINAL § CARDINAL judges are disqualified from dealing with a case if there may be doubts about their impartiality in relation to the subjectmatter of the case , the parties to the proceedings or the GPE legal representatives .

Pursuant to LAW , as soon as a judge learns of facts disqualifying him or her from dealing with a case , he or she is to notify the president of the court accordingly without any delay .

Under LAW , parties to civil proceedings are obliged to inform the court immediately of any facts disqualifying a judge from dealing with their case . It further confers a right on the parties to civil proceedings to state their views if the disqualification of a judge is being considered .

A decision on removal of a judge from a case is to be taken by a ORG of the higher instance court ( LAW ) .

Legal representation in civil proceedings by a lawyer ( advokát ) is addressed in LAW . Pursuant to its paragraph CARDINAL the lawyer is obliged to make effective use of all available legal means in the interest of the party whom he or she represents .

The procedure in respect of appeals on points of law is defined in Part CARDINAL , LAW . Under LAW ( CARDINAL ) an appeal on points of law is available against final decisions of a court of appeal if the law so provides .

Pursuant to Article CARDINAL an appeal on points of law is admissible against any decision of the appellate court where :

( a ) the decision concerns a subject - matter which falls outside the jurisdiction of courts ,

( b ) a person acting as a party to the proceedings lacked capacity to be a party to court proceedings ,

( c ) a party to the proceedings lacked procedural capacity and was not duly represented ,

( d ) the same matter has been earlier determined by a final decision or if other proceedings in the same matter started earlier ,

( e ) no motion to institute proceedings has been filed despite the fact that such a motion was required by the law ,

( f ) a party has been prevented , by the appellate court ’s conduct , from acting before the court ,

( g ) the case was decided upon by a disqualified judge or the court ’s composition was incorrect .

Legal representation in appeals on points of law is mandatory ( LAW ) .

In accordance with LAW an appeal on points of law may only be based on the following grounds :

( a ) flaws in the proceedings as set out in LAW [ of LAW ] ,

( b ) other flaws in the proceedings which resulted in a wrong decision on the merits ,

( c ) a court ’s decision made on the basis of a factual finding which , to a substantial extent , is not supported by the evidence taken ,

( d ) a court ’s decision based on an erroneous legal assessment of the matter .

The scope of ORG examination of an appeal on point of law is in principle limited to the grounds of appeal as submitted by an appellant ( Article CARDINAL § CARDINAL ) . Except for the flaws listed under Article CARDINAL and flaws that have resulted in an incorrect decision on the merits , ORG does not review ex officio any procedural flaws that have not been complained of by an appellant .

When determining an appeal on points of law , ORG in principle takes no evidence ( Article CARDINALa § CARDINAL ) .

ORG dismisses the appeal on points of law if it finds that the decision of the court of appeal is correct . Otherwise it quashes the appellate decision ( LAW ) .


The first applicant , Mr PERSON , was born in DATE . The second applicant , Mr PERSON , was born in DATE . The third applicant , Mr PERSON , was born in DATE . All CARDINAL applicants are NORP nationals . The first applicant lives in GPE – PERSON , the other CARDINAL live in GPE , GPE . They were represented before the ORG by Mr PERSON , who lives in PERSON . ORG ( “ the Government ” ) were represented by their Agent , PERSON , of ORG .

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

The applicants had been receiving their old age pension at the time when they left GPE for permanent residence in GPE . Mr PERSON left on DATE , Mr Dobrov – on DATE and Mr GPE – on DATE . Before their departures , they had been paid , upon their written requests , their pensions for DATE in advance with consecutive termination of such payments in accordance with LAW .

In DATE and DATE the applicants wrote separate but similar complaints about the termination of their pension payments to ORG . The latter forwarded them to ORG of GPE . By letter of DATE to PERSON and by letters of DATE to PERSON and PERSON , ORG of GPE informed the applicants that the old age pensions could be paid to the citizens who resided permanently abroad only if there was a relevant international agreement with the particular ORG . In absence of such agreement with ORG , the payment of pensions to the applicants could not be renewed . The ORG further informed that ORG was in process of drafting such an agreement .

The relevant domestic law is summarised in the admissibility decision of PERSON v. GPE ( no . CARDINAL/CARDINAL , DATE ) .


Remainder inadmissible;No violation of Article 6 - Right to a fair trial (Article 6 - Administrative proceedings;Article 6-1 - Access to court;Reasonable time)

Elisabeth Steiner;Erik Møse;Isabelle Berro-Lefèvre;Julia Laffranque;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska

The applicant was born in DATE and lives in ORG .

The applicant is a judge at ORG . In DATE he made a study visit to ORG in GPE . ORG paid his travel expenses and granted the applicant CARDINAL GPE special leave , in addition to which he took DATE of his DATE leave .

On DATE the Federal Minister of ORG informed the applicant on his return that it would not reimburse any of the additional expenses he had claimed in the meantime on DATE .

On DATE the applicant formally requested the reimbursement of further costs , incurred during the study visit , in particular the costs for his accommodation in the amount of NORP schillings CARDINAL,CARDINAL.CARDINAL ( ORG - CARDINAL,CARDINAL.CARDINAL euros ( ORG ) ) , and submitted additional records .

On DATE the Federal Minister dismissed the applicant ’s request on the grounds that the trip had not been an official journey – this having been made clear by the fact that the applicant had taken some annual leave during that period .

On DATE the applicant filed a complaint with ORG . He submitted that the Federal Minister had interpreted the relevant law incorrectly and that if he had properly assessed the evidence he would have concluded that the study visit to GPE had to be treated as an official journey .

On DATE ORG quashed the Federal Minister ’s decision finding that the President of ORG had been the authority competent to decide on the request for reimbursement at first instance , rather than the Federal Minister .

Thereupon , the matter was transferred to the President of ORG who requested the applicant and the Federal Minister to submit explanations regarding the study visit .

On DATE the applicant lodged a complaint ( Säumnisbeschwerde ) with ORG against the alleged failure of the President of ORG to decide on his request within the statutory DATE time - limit .

On DATE ORG rejected the complaint because the applicant had not made a prior request under LAW of ORG for jurisdiction to be transferred to the Federal Minister of Justice as the authority responsible for hearing appeals .

On DATE the President of ORG dismissed the applicant ’s request for reimbursement of the costs of his accommodation in GPE on the grounds that the applicant had not been given instructions for an official journey and had not performed any official duties during his stay in GPE . Therefore he was not entitled to reimbursement of his costs .

On an unspecified date the applicant appealed against that decision to the Federal Minister of ORG .

On DATE the Federal Minister dismissed the applicant ’s appeal , confirming the findings in the first - instance decision .

On DATE the applicant filed a complaint with ORG against the ORG decision . He submitted that while acknowledging that his trip had been in the interest of his official duties ( dienstliches Interesse ) , the Minister had incorrectly assumed that the applicant ’s study visit was not to be treated as an official journey . The applicant did not ask for a hearing before ORG .

On DATE ORG dismissed the applicant ’s complaint , finding that the Minister had correctly assessed the evidence before him and had correctly concluded that the applicant ’s study trip had not been treated as an official journey .

Civil servants are entitled under LAW ( Reisegebührenvorschrift ) to reimbursement of their expenses for official journeys . Under LAW of these Rules it is an official journey if a civil servant travels to a place which is different from his official duty station ( ORG ) in order to comply with a given instruction ( PERSON ) .

Section CARDINAL of LAW ( Allgemeines Verwaltungsverfahrensgesetz ) deals with the administrative authorities’ duty to decide . Its relevant part reads as follows :

“ ( CARDINAL ) Subject to any contrary provision in the administrative regulations , the authorities must give a decision on applications by parties ... and appeals without unnecessary delay and at DATE after the application or appeal has been lodged .

( CARDINAL ) If the decision is not served on the party within this time - limit , jurisdiction will be transferred to the competent superior authority upon the party ’s written request . ... ”

NORP The relevant provisions of LAW ( PERSON ) relating to the application against the administration ’s failure to decide read as follows :

Section CARDINAL

“ An application under LAW for breach of the duty to decide ( application against the administration ’s failure to decide ) can be lodged only when the highest authority to which an application can be made in administrative proceedings , either by way of an appeal or an application for transfer of jurisdiction , ... has been applied to by a party and has not made a decision on the matter within DATE . ... ”

Section CARDINAL

“ ( CARDINAL ) On an application against the administration ’s failure to decide under LAW of LAW the relevant authority is to be ordered to give a decision within DATE and either produce to ORG a copy of the decision or state why in its opinion there has not been a breach of the duty to decide . The time - limit can be extended once if the administrative authority can show that there are relevant reasons why it is impossible to reach a decision within the prescribed time - limit . If a decision is made within the prescribed time - limit , the proceedings in respect of the application against the administration ’s failure to decide shall be stayed . ”

Section CARDINAL

“ ( CARDINAL ) Subject to any contrary provision of LAW , the ORG shall give a judgment in all cases .

( CARDINAL ) In respect of applications under LAW , ORG may initially limit its judgment to a decision on specific relevant points of law and order the authority to make a decision consistent with the determined points of law within a specified time - limit which must not exceed DATE . If ORG does not use that possibility or the authority in question fails to comply with the order , the ORG shall rule on the application against the administration ’s failure to decide by giving a judgment on the merits , for which it shall have full discretion in the administrative authority ’s stead . ”


The applicant was born in DATE and lives in PERSON .

On DATE the applicant was arrested on suspicion of having committed a number of offences in an organised criminal group .

On DATE ORG remanded the applicant in custody . The applicant 's detention was subsequently prolonged by the courts on DATE , DATE , DATE , DATE and DATE .

On DATE ORG ordered that the applicant and his CARDINAL co - accused be kept in custody until DATE . It relied on the reasonable suspicion that the applicant had committed the offences with which he had been charged . ORG also found that there was a reasonable risk that the applicant would obstruct the proceedings , given the serious nature of the charges and the fact that they concerned an organised criminal group . It further relied on the severity of the anticipated penalty and the complexity of the case .

On DATE the prosecution filed with ORG a bill of indictment against the applicant . The applicant was charged , inter alia , with acting in and leading an organised armed criminal group , ordering murder , extortion and supplying drugs .

On DATE ORG extended the applicant 's detention until DATE , referring to the severity of the anticipated penalty .

On DATE ORG prolonged the applicant 's detention until DATE . In addition to the grounds invoked in the detention order of DATE , ORG relied on the complexity of the case and the number of charges .

On DATE ORG ordered that the applicant and CARDINAL of his co - accused be held in custody until DATE . It invoked the same grounds as in its earlier decision .

On DATE ORG prolonged the applicant 's detention until DATE . In addition to the grounds previously invoked , it held that the volume of evidence and the need to proceed smoothly with the trial justified the applicant 's continued detention .

On DATE ORG extended the applicant 's detention until DATE . It observed that holding the applicant in custody was the only measure which could secure the proper conduct of the proceedings , having particular regard to the security of anonymous witnesses who had been heard in the proceedings . It also considered that the case was particularly complex within the meaning of Article CARDINAL § CARDINAL of LAW .

The applicant 's detention was subsequently prolonged by ORG on DATE ( until DATE ) and CARDINAL March CARDINAL ( until DATE ) . The court invoked the same grounds as in its earlier decisions .

On DATE the Court of Appeal prolonged the applicant 's detention until DATE . Having regard to the organised character of the alleged criminal activities , it held that the applicant 's detention was necessary in order to prevent him and the other co - accused from interfering with the proceedings . On DATE ORG ordered that the applicant be held in custody until DATE . It relied on the same grounds as previously .

The trial court held CARDINAL hearings . On DATE ORG delivered a judgment . It convicted the applicant of most of the charges and acquitted him of one charge ( ordering murder ) . It sentenced him to DATE imprisonment and a fine .

The applicant appealed against the first - instance judgment . He remained in detention pending appeal . On DATE ORG upheld ORG judgment for the most part . It remitted the case only in respect of CARDINAL charge of which the applicant had been acquitted .

In the course of the proceedings the applicant filed a number of applications for release on health grounds . However , the courts , having regard to the relevant expert reports , refused all those applications . He also unsuccessfully appealed against decisions prolonging his detention on remand .

The relevant domestic law and practice regarding the imposition of detention on remand ( tymczasowe aresztowanie ) , the grounds for its prolongation , release from detention and rules governing other , so - called “ preventive measures ” ( środki zapobiegawcze ) at the material time are stated in the ORG 's judgments in the cases of ORG v. GPE , no . CARDINAL , § § DATE , DATE and PERSON v. GPE , no . CARDINAL , § § DATE , CARDINAL DATE .


CASE OF SOKURENKO AND STRYGUN v. UKRAINE

Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

The applicants live in the village of GPE , the ORG region , GPE .

In DATE the “ Agro - Ros ” Ltd company instituted CARDINAL sets of proceedings against ORG and each of the applicants , challenging the decision of the ORG to provide the applicants with certain plots of land .

By CARDINAL decisions of CARDINAL DATE , ORG found against the applicants . On DATE ORG dismissed the applicants’ appeals and upheld the decisions of the first - instance court .

On DATE the Higher Commercial Court of GPE , upon the ORG appeals , quashed the decisions of the lower courts and remitted the case for a fresh consideration .

On CARDINAL DATE ORG of GPE , upon appeal of the “ ORG company , quashed the resolutions of ORG ( постанови ORG господарського суду ) on the ground that the findings of ORG had not corresponded to the factual circumstances and had been unfounded and erroneous , and upheld the resolutions of ORG .

The relevant extract of the LAW of GPE reads as follows :

“ State power in GPE is exercised on the principles of its division into legislative , executive and judicial power .

Bodies of legislative , executive and judicial power exercise their authority within the limits established by this LAW and in accordance with the laws of GPE . ”

“ ORG in GPE is administered exclusively by the courts ...

The jurisdiction of the courts extends to all legal relations that arise in the ORG .

Judicial proceedings are performed by ORG and courts of general jurisdiction ... ”

“ In GPE the system of courts of general jurisdiction is formed in accordance with the territorial principle and the principle of specialisation .

ORG is the highest judicial body in the system of courts of general jurisdiction ... ”

“ ... The main principles of judicial proceedings are :

CARDINAL ) legality ... ”

The relevant provisions of the LAW ( in the wording of DATE ) read as follows :

“ CARDINAL . ORG of GPE is the highest judicial body within the system of courts of general jurisdiction ...

ORG of GPE shall :

CARDINAL ) review ... the cases under the cassation procedure in the situations established by law ...

CARDINAL ) exercise other powers pursuant to the law . ”

The Code of Commercial Procedure ( formerly Arbitration Procedure ) was significantly reworded on DATE . At that time the fourth level of jurisdiction was introduced in the Commercial Procedure . According to the relevant provisions of the LAW , a cassation appeal to ORG , similar to the CARDINAL found in other member ORG , and a second ( or repeated ) cassation appeal to ORG are now available to the parties in a commercial case . The Commercial Procedure is the only judicial procedure of GPE where the fourth level of jurisdiction exists and where ORG acts as a second cassation instance ( in criminal and civil procedures it acts as an ordinary court of cassation and in administrative and administrative offences’ procedures , it performs only extraordinary review ) .

The relevant provisions of LAW ( in the wording of CARDINAL DATE ) read as follows :

“ A commercial court shall nullify proceedings in the case , if

CARDINAL ) a dispute is not subject to examination in the commercial courts of GPE ; ... ”

“ The parties to a case as well as the Prosecutor General of GPE have the right to appeal in cassation to ORG of GPE against the resolution of ORG of GPE adopted following the review of a decision of a first instance commercial court , that has entered into force , or a resolution of ORG , [ as well as the ruling of ORG of GPE on return of the appeal ( request for review ) in cassation ] . ”

“ ORG of GPE reviews in cassation the resolutions [ or rulings ] of ORG of GPE if they are appealed against :

CARDINAL ) NORP on the basis of the application by ORG of GPE of a law or normative act which contravenes LAW ;

CARDINAL ) where a decision contravenes decisions of ORG of GPE or of a higher court of a different specialisation on the issue of the application of the norms of substantive law ;

CARDINAL ) where it is revealed that ORG of GPE has applied the same provision of the law or any other normative act differently in similar cases ;

[ DATE ) due to the inconsistency of the resolutions or rulings with the international treaties of GPE agreed as binding by PERSON of GPE ; ]

CARDINAL ) where an international judicial body whose jurisdiction is recognised by GPE finds that a resolution [ or ruling ] has violated the international obligations of GPE . ”

“ ... The resolution [ or ruling ] of ORG of GPE shall be reviewed in cassation on the basis of the rules for consideration of the case in the first - instance commercial court , save for

“ ORG of GPE , following consideration of an appeal in cassation , or a request for review in cassation lodged by ORG against a resolution [ or ruling ] of ORG of GPE , shall be entitled to :

CARDINAL ) NORP leave the resolution [ or ruling ] unchanged and dismiss the appeal ( request ) ;

CARDINAL ) NORP quash the resolution and remit the case to the first - instance court for further consideration [ or quash the ruling and remit the case for further consideration to ORG ] ;

CARDINAL ) NORP quash the resolution [ or ruling ] and nullify the proceedings in the case . ”

“ The resolutions [ or rulings ] of ORG of GPE shall be quashed if they contravene LAW , international treaties agreed as binding by PERSON of GPE , or if the substantive law has been misapplied otherwise . ”

“ ... A resolution of ORG of GPE shall be final and shall not be subject to appeal . ”

“ Instructions , contained in the resolution of ORG of GPE , shall be binding for the first - instance court during a new consideration of the case [ and for ORG of GPE during consideration of the materials of the appeal in cassation or the request for review in cassation ] .

The resolution of ORG , following a re - examination of the case on the basis of an appeal in cassation against the resolution [ or ruling ] of ORG of GPE shall not include instructions as to the admissibility or inadmissibility of evidence , the superiority of CARDINAL type of evidence over another , the norms of substantive [ or procedural ] law which shall be applicable or the kind of decision that shall be adopted as a result of the further consideration of the case . ”


Violation of Art. 6-1;Not necessary to examine Art. 6-2;Just satisfaction reserved

ORG The applicant , who is a citizen of GPE born in DATE , lives in GPE . He runs a firm that specialises in meat smoking . He bought the production plant from the firm PERSON , which was thereafter called PERSON , following the death of Mr. PERSON in DATE .

ORG Mr. PERSON had been reported under the then applicable legislation to the prosecuting authorities by ORG ( Bundesanstalt für GPE - " the Institute " ) for suspected offences resulting from the technique he used for smoking meat . In DATE , during the course of these proceedings , ORG had been asked to draw up an expert report ( GPE ) . In this report , the maximum quantity permissible in smoked meats of a carcinogenic substance called benzopyrene CARDINAL was stated to be CARDINAL part per ( NORP ) billion ( " ppb " ) .

ORG After Mr. PERSON had bought the firm , similar complaints were lodged with the prosecuting authorities . These led to the prosecution of the applicant before ORG of Vienna ( CARDINAL DATE and DATE ) and before ORG of GPE ( DATE ) . Basing themselves mainly on the expert opinions of ORG ( see paragraph CARDINAL below ) , these courts came to the conclusion that the products prepared with the impugned smoking technique were dangerous to health because they contained an excessive quantity - more than one ppb - of benzopyrene CARDINAL and that their distribution consequently constituted an infringement of section CARDINAL(CARDINAL ) of LAW DATE ( " LAW " ) . It was further found that the products were adulterated ( verfälscht ) by reason of an excessive water content not apparent to the consumer , whereby they also contravened section CARDINAL ( CARDINAL ) , no . CARDINAL , of LAW . Mr. PERSON was accordingly convicted . His appeals against these decisions , which are not in issue in the present case , were unsuccessful .

ORG In DATE , ORG of GPE drew CARDINAL samples of smoked meat from the production of the PERSON company , leaving CARDINAL counter - samples from the same pieces to the applicant ( see paragraph CARDINAL below ) . The ORG was entrusted with carrying out the analysis of these samples . In its analysis , which was carried out on DATE , the ORG found a benzopyrene concentration of CARDINAL and QUANTITY respectively and an excessive water content . The samples were therefore described as being dangerous to health and adulterated . This opinion by ORG , which had been drafted on DATE by the Director of the Institute , amounted to the lodging of a complaint ( ORG ) ; it was transmitted by ORG to the prosecuting authorities with a view to the institution of criminal proceedings .

ORG The case came before the same judge of ORG who in DATE had dealt with an earlier case against the applicant ( see paragraph CARDINAL above ) . Pursuant to section CARDINAL of LAW , he again appointed PERSON ORG as expert in order to hear him in connection with the opinion submitted . On DATE , Mr. PERSON challenged both the judge and the expert ; in his contention , the conduct of the proceedings had shown that both were biased against him and resolved to disregard his rights of defence , in particular the right - guaranteed by LAW witnesses and experts for the defence under the same conditions as those for the prosecution . In addition , the applicant asked for the hearing of several experts .

On DATE , the President of ORG rejected the challenge concerning the investigating judge on the ground that it was unfounded . However , he did not formally examine the challenge concerning the expert , who in fact took part in the proceedings .

ORG On DATE , at the request of Mr. PERSON , ORG heard as witness Mr. PERSON , the Director of ORG . According to written evidence submitted by this ORG after analysis of the CARDINAL counter - samples , the concentration of benzopyrene was QUANTITY ppb respectively , and there was accordingly no reason for any objections .

In reply to questioning by both the judge and the expert , the witness explained in detail the method of analysis applied by his ORG , which was very similar to that used by ORG .

The expert thereafter developed his personal opinion . As regards the benzopyrene concentration , he pointed out that the method employed by ORG was subject to criteria which were especially stringent and rigorously controlled ; its degree of accuracy was maximised and the margin of error did not exceed MONEY . On the other hand , he criticised the method used by the witness ; in his view , the margin of error had to be considerable as the results obtained from each of the CARDINAL counter - samples differed greatly , whereas the ORG ’s analysis showed analogous results in both instances . He emphasised that the products made by Mr. PERSON ’s firm showed a water content of MONEY , whereas , according to LAW ( Codex PERSON ) , it should not have exceeded MONEY .

On his side , Mr. PERSON , who was not represented by a lawyer , stated that a water content below MONEY was technically unattainable and requested the hearing of a meat and sausage expert on this point . ORG however refused this , on the ground that black smoking was forbidden if the water content could not be limited to the required level .

ORG In a judgment delivered DATE ( DATE ) , ORG found the applicant guilty of offences under section CARDINAL(CARDINAL ) , ORG . CARDINAL and CARDINAL , and section CARDINAL ) , no . CARDINAL , of LAW and accordingly sentenced him to CARDINAL months’ imprisonment . It particularly stressed that , at the time of the takeover of the firm , ORG had informed Mr. PERSON of the requirements of LAW , that the applicant was aware of the criminal proceedings instituted against his predecessor and that , moreover , he too had been the subject of criminal proceedings for the same reasons but had nonetheless continued his production without changing method .

ORG considered that the expert opinion of the Director of the ORG was conclusive and that there were no doubts as to the reliability of his findings . It shared his view that the different results at which ORG had arrived were erroneous . Even allowing for a margin of error of MONEY in the ORG ’s findings , it held that the concentration of benzopyrene in the applicant ’s products was by far in excess of the permissible level ( QUANTITY ) . The carcinogenic effects of this substance were found to have been established by ORG ( see paragraph CARDINAL above ) ; the evidence to the contrary adduced by the applicant - in particular letters from CARDINAL NORP experts and a publication written by CARDINAL other experts - did not seem convincing to it .

ORG Mr. PERSON appealed . In essence , he took issue with the Director of the Institute for not having adhered to the opinion of his colleagues , which - in Mr. PERSON ’s view - nevertheless reflected the prevailing view , and submitted that the Director was biased . He also raised objections of principle against the appointment as court expert of the very person who had reported the case to the prosecuting authorities , and complained that this person had been heard as a court expert whereas Mr. PERSON had appeared as a mere defence witness ; this seemed to him contrary to the requirements of LAW . In addition , he requested the hearing of several experts .

ORG rejected the appeal on DATE . As to the carcinogenic effects of benzopyrene , it noted that ORG had based its decision on the opinion of ORG , which , according to settled case - law , could not be contested . Apart from that , ORG had extensively dealt with all relevant aspects of the case before holding that the products made by the applicant were adulterated and dangerous to health . The findings of ORG were not open to doubt as they were based on the detailed explanations of the expert . As the latter had already refuted Mr. PERSON ’s arguments , it was not necessary to take any additional evidence on the adulterated and dangerous character of the said products . In particular , ORG ruled out the hearing of a counter - expert since the expert opinion obtained in the first - instance proceedings was not tainted with any defects ( Articles CARDINAL and CARDINAL of LAW ) . Finally , it rejected the challenge of ORG as expert ( LAW ) .

ORG Following analysis of samples taken in DATE and DATE from products made by the applicant ’s firm , the ORG once more found an excessive concentration of benzopyrene ( QUANTITY ppb ) and an undeclared high water - content .

Criminal proceedings were accordingly instituted against the applicant before ORG . The case came before the same judge as before , who again appointed the Director of the ORG as expert pursuant to section CARDINAL of LAW .

Hearings were held on DATE . Invoking Article CARDINAL ( article CARDINAL ) of the LAW , Mr. PERSON unsuccessfully challenged the expert . ORG pointed out that LAW required the appointment of an expert from the staff of the ORG ; it added that even though the Director had previously given opinions unfavourable to applicant , this did not substantiate the challenge .

The expert then presented his report . When ORG examined him on recent research said to support the views of the applicant , he acknowledged that this research had arrived at less emphatic results on the carcinogenic effects of benzopyrene ; but , according to him , this did not cause the opinion of ORG to lose any of its validity in the particular circumstances . In reply to defence counsel ’s questions , he explained the method for analysing foodstuffs used by ORG , which made it possible to detect MONEY of benzopyrene ; he conceded that this method differed from the one used by ORG , but declared himself not to be bound by the findings of a foreign authority . The defence asked for the hearing of witnesses on the subject ; ORG did not accede to this request , considering itself sufficiently informed through the opinions of ORG and the expert from ORG .

ORG On DATE ( DATE ) , ORG found the applicant guilty of offences against sections CARDINAL and CARDINAL of LAW . For reasons almost identical to those stated in the judgment of DATE ( see paragraph CARDINAL above ) , it sentenced him to DATE imprisonment .

ORG Mr. PERSON appealed from this decision on grounds similar to those pleaded in the first proceedings ( see paragraph CARDINAL above ) .

ORG dismissed the appeal on DATE . In its view , the appointment of a particular person as expert was not prohibited unless the person lacked competence to give evidence as a witness ( Article CARDINAL ) , no . CARDINAL , of LAW ) ; apart from this , the applicant had failed to adduce any reasons casting doubt on the impartiality and professional qualifications of ORG . Whilst the Director had admittedly already formulated opinions unfavourable to the applicant on several occasions , this did not warrant his being challenged , as ORG had rightly noted . As regards the alleged violation of Article CARDINAL para . CARDINAL ( article CARDINAL ) of the LAW , the Court of Appeal emphasised that section CARDINAL of the CARDINAL Act required that the official of the ORG who had analysed the samples taken or drawn up the report should be appointed as expert . Rejecting the request for counter - expertise made by Mr. PERSON , ORG reiterated , as far as the remaining issues were concerned , the reasoning contained in its judgment of DATE ( see paragraph CARDINAL above ) .

ORG On DATE , the Federal President , exercising his power to grant a pardon , commuted the CARDINAL prison sentences imposed on the applicant to fines of CARDINAL and QUANTITY ( see paragraphs CARDINAL and CARDINAL above ) .

ORG Under the terms of LAW , ORG of a city shall periodically draw samples of foodstuffs and send them for analysis to ORG ( section CARDINAL ) , making available a sealed counter - sample to be used by any private expert that the firm subjected to control might wish to consult . This expert must possess special professional qualifications and have a special authorisation from ORG ( sections CARDINAL and CARDINAL ) .

Several members of the ORG ’s staff are involved in the examination of the samples , for which purpose standard scientific techniques are employed . The various results are submitted to the Director of ORG , who draws up a report .

If the ORG has cause to suspect the commission of an offence , it must state so in its report and notify the responsible authorities ( section CARDINAL ) . In practice , the report ( Anzeigegutachten ) is sent to ORG , which in such cases transmits it to the public prosecutor ’s department . The prosecuting authorities have to decide whether or not criminal proceedings should be brought , but they usually adhere to the ORG ’s opinion .

ORG Whilst the provisions of LAW are applicable in such cases , section CARDINAL of the CARDINAL Act involves a derogation from them in so far as expert evidence is concerned :

" If the court has doubts concerning the findings or the opinion of a ORG or if it considers that such findings or opinion need to be amplified or if justifiable objections have been raised in respect thereof , it shall hear as expert the official of the said ORG who carried out the analysis or drew up the report for the purpose of explaining and supplementing the findings or the report ... In all other respects , expert evidence shall be governed by the provisions of LAW ... "

Under LAW , the prosecuting authorities and the accused are to be informed of the names of the experts appointed by the court ; should they raise valid objections , other experts are to be consulted .

Thus , the court is bound to appoint CARDINAL of the ORG ’s officials who carried out the analysis or formulated the opinion . This official may be the person who drew up the report which served as the complaint prompting the criminal proceedings ; such a circumstance is not capable of giving cause for a challenge . Should there be other grounds , such as a personal bias against the accused , the expert may be replaced by another official of ORG who took part in the analysis and in the drafting of the opinion .

If any doubts persist or if the findings of these experts " are unclear , vague , contradictory " , etc . ( Articles CARDINAL and CARDINAL of LAW ) , the court may call another expert .

Under the terms of LAW , only the prosecutor and the defence counsel or the accused are entitled to put questions to witnesses and experts . Nevertheless , the court may authorise experts to examine witnesses and the accused . Witnesses , on the contrary , do not have this possibility .

ORG The provisions of LAW , as well as certain practices followed by the courts and the Institutes , have been the subject of controversy in academic writings and on the occasion of an enquiry organised in DATE by ORG . The matter was debated in ORG prior to the passing of the LAW and subsequently in DATE when a proposed amendment to section CARDINAL was examined ( see paragraph CARDINAL above ) . This amendment , which was not in fact adopted , provided that both the ORG ’s expert and any private expert called by the accused were to be heard only as witnesses and that , in case of doubt , an independent expert should be appointed .

The receipt by ORG officials of certain bonus payments also gave rise to some discussion which subsequently provoked their discontinuance ( see paragraphs CARDINAL - CARDINAL , DATE , DATE and CARDINAL of the Commission ’s report , paragraph CARDINAL of the applicant ’s memorial and point ORG memorial ) .