Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä;Vincent A. De Gaetano

The applicant was born in DATE and lives in PERSON .

He married ORG in DATE . On DATE PERSON , the couple 's daughter , was born . DATE the couple split up .

On DATE ORG pronounced their divorce . The court awarded custody of the couple 's child to both parents and ordered that her place of residence should be with her mother .

DATE several sets of proceedings were conducted concerning the enforcement of the access arrangements provided in the divorce judgment . Ultimately , on DATE the parties reached an agreement validated by the court as to the manner of implementing the custody arrangements . The applicant was allowed to see PERSON once a month on DATE for TIME , from TIME

Subsequently , the GPE - ORG and , upon appeal , ORG , conducted successive sets of enforcement proceedings in respect of the DATE agreement . In particular , it examined the applicant 's successive applications for a fine to be imposed on the mother and/or to have time - limits fixed within which she should comply with the access arrangements and allow the applicant to see PERSON

On DATE the applicant lodged an application with ORG for a fine to be imposed on PERSON 's mother . He submitted that she had consistently failed to comply with the conditions of the agreement concluded in DATE . On DATE the mother was summoned by the court and ordered to allow the applicant access to their child within DATE . Upon her appeal , on DATE ORG quashed that decision on formal grounds and remitted the case . On DATE the GPE - ORG set a DATE time - limit within which the mother was to comply with the conditions of the access agreement .

In letters to the Warszawa ORG of DATE and DATE , DATE and DATE , ORG requested the court to order the applicant to attend the meetings with the child without male friends , to dress appropriately for the occasion , to arrive on time and not to tease the child . In a letter of CARDINAL DATE she informed the court that the applicant had failed to attend meetings planned for DATE , DATE and DATE , without having informed her that he would not come . She further stated that despite this the child would be ready to meet her father under the conditions specified in the agreement . In a letter of CARDINAL DATE she informed the court that out of CARDINAL DATE meetings planned since the agreement had been concluded the applicant had failed to attend DATE .

In DATE ORG appointed a custody officer to supervise the execution of the access agreement . She periodically submitted reports to the court , dated , inter alia , DATE , DATE and DATE , CARDINAL DATE , DATE and CARDINAL DATE and CARDINAL DATE .

NORP In DATE the first - instance court , following the applicant 's complaint , again set a DATE timelimit for the mother to comply with the access arrangements and imposed a fine on her in the amount of MONEY ( ORG ) .

On DATE and CARDINAL DATE the applicant renewed his applications . The court dismissed them on DATE . It observed that there were no grounds for imposing a fine , as the mother had not taken any steps to make it impossible for the father to see the child . It was the child herself who was hostile to her father .

The applicant appealed , complaining that the court lacked impartiality and that it had wrongly assessed the evidence before it . ORG dismissed his appeal on DATE . It found that the parties had been in a bitter conflict ; that the child had a negative attitude towards her father ; that the mother had not done anything to prevent the girl from having contact with her father ; that it was not in the child 's best interest to force her to have frequent contact with him ; and that the lower court had made correct findings of fact .

In DATE the applicant submitted a new application for a fine to be imposed on the mother . On DATE the court dismissed it , essentially reiterating the reasoning adopted in its decision of DATE and referring to similar findings of fact . It observed that the mother and father were in a conflict so bitter that they had become unable to see how much their conflict affected the child . They both blamed the other party for all the problems arising in connection with the exercise of custody and access rights , failing to see their own shortcomings and being unable to reach any compromise . The child had become an instrument in the fight between the parties . The child 's hostility to her father and , in particular , the fact that the mother had not sought to influence her attitude , was alarming . The parents had told the court that they needed therapy , but had failed to do anything about it . The father had repeatedly asked for the mother to be punished by a fine but he had not challenged the assertion that it was the child herself who did not want to see him .

The applicant appealed , complaining that the first - instance court had been very superficial in the examination of the evidence .

On DATE ORG dismissed the applicant 's appeal against that decision . It observed that forcing the child to see his father would not by itself restore the emotional ties between the girl and her father , and that these ties had become seriously weakened .

On DATE the applicant submitted a new application to make the mother comply with the access arrangements . In the proceedings instituted by this application the court ordered that another opinion should be prepared by psychologists to assess both the feasibility of the applicant 's contact with PERSON and the psychological state of the persons concerned .

In that opinion , dated DATE , the experts stated that the child had declared that she had agreed to talk to the experts only at her mother 's request . She had stressed that she had not changed and would not change her attitude towards her father . She could not understand why the applicant wanted to pursue contact , given that he had filed an application for denial of paternity ( see paragraphs CARDINAL - CARDINAL below ) . She was convinced that he was motivated by his wish to annoy and cause stress to herself and her mother . She had complained about his visits to her school and the fact that he had told her teachers and her friends that she was a “ bad daughter ” . PERSON had called the applicant a “ sadist ” . She had objected to his criticising her mother , to whom she was very strongly attached . PERSON had strongly denied that her mother had ever forbidden her to see the applicant .

In their conclusion the experts reiterated the conclusion of their DATE report and noted that the therapy , which both the parents and the daughter had undergone separately , had not produced positive results .

On DATE the first - instance court again set a DATE time - limit for the mother , on pain of a fine of ORG CARDINAL . The court summarised the enforcement proceedings and the decisions given in them . It noted that the applicant had not behaved badly towards the child and that he had reported regularly for the meetings . His behaviour towards the child might have been awkward but this was due essentially to the fact that he did not actually know the girl as he had had very little opportunity to get to know her . The court referred to an expert opinion prepared for the purposes of the proceedings and concerning the child 's psychological situation . PERSON was very hostile towards her father , despite the fact that she had had no personal experience with him capable of justifying her hostility . The mother had failed to take any steps to persuade the child to have contact with her father or to alter the negative image which the child had formed of him . The court found PERSON 's attitude alarming . It further noted that had the mother been dissatisfied with the scope or character of the applicant 's access rights , it had been open to her to challenge them in separate proceedings . The present case was concerned only with the enforcement of the existing access rights as defined by the DATE agreement and it was obvious that the mother was not complying with them .

Both parties appealed . In her appeal ORG stressed that she had never taken any steps to prevent her daughter from meeting the applicant . It was the child who had steadfastly refused to see her father , which left the mother helpless . In his appeal , the applicant insisted that the mother should be obliged to pay the fine after the expiry of the timelimit , as provided for by LAW .

The appeals were dismissed on DATE . ORG dismissed the applicant 's appeal , in which he sought that a fine be imposed on the mother , noting that a fine could only be imposed if she had failed to honour her obligation within the time - limit set by the court . It further observed that it was actually the child , not the mother , who had refused contact , while it was the mother who was the debtor within the meaning of LAW .

It also dismissed the mother 's appeal , observing that the child had , beyond any doubt , been drawn into the conflict between the parties . The image she had of her father had been shaped by her mother , particularly as the child had not had any contact with her father for DATE , despite the fact that he had always been ready to see her and continued to come to the meetings fixed for that purpose . It was the mother who was responsible for the child 's attitude , which was full of hatred and hostility towards her father . The court found the mother 's attitude inappropriate . It further noted that the applicant and the mother and child had undergone therapy , but separately . However , as the child had refused to talk about her father , the issue of contact with him had not been addressed in her therapy . There were no grounds for believing that contact with her father would harm the child .

On DATE the GPE - Mokotów ORG examined a complaint by the applicant , submitted on DATE , that the access rights had not been properly implemented , despite the expiry of the time - limit set for that purpose in the decision of CARDINAL DATE . The court noted that the time - limit for ensuring compliance had expired and that since that date the applicant had not seen the child as she steadfastly refused to meet him . The court imposed a fine of ORG CARDINAL on the mother . It further set a timelimit of thirty days for her to comply with the access arrangements .

E.K. appealed . On DATE ORG allowed her appeal and remitted the case . It observed that while it was true that the contact arrangements had not been respected , this was not because of the mother 's failure to comply with them , but because of the girl 's attitude . It further noted that she was DATE and her views and feelings had to be taken into account by the courts .

On DATE the Warszawa - Mokotów District Court dismissed the applicant 's application for a fine to be imposed on PERSON The court heard PERSON in the absence of the parties and referred to her statements in its decision . She stated that it was she who had not complied with the access agreement . She told the court that the applicant had never been around when she needed him , he had never listened to her and had only wanted to hurt and annoy her mother . She stated that she would not see her father .

The court emphasised that the father had a right to contact his daughter and the parties themselves had had regard to this right when concluding the DATE agreement . However , while the situation obtaining at that time had probably offered prospects of contact , the court was obliged to take into consideration the current situation . PERSON was now DATE and her opinion had to be taken into account . Lack of regular and peaceful contact for DATE had resulted on her part in a lack of any emotional ties with her father . It could not be overlooked that the applicant did not want to listen to her views or to respect them . Even before the proceedings before the court he was dismissive of her views and expressed the opinion that they had been dictated by her mother .

The court concluded that it could not be said that the mother was to blame for making contact impossible . There were no grounds for imposing a fine on her .

The applicant appealed , requesting that the decision be quashed .

On DATE ORG dismissed his appeal , finding that there were no grounds on which to impose a fine on the mother , given that the child was old enough to express her own views and feelings on the question of contact , which she obviously did not want to maintain . The mother could not be said to bear responsibility for the non - enforcement of the access arrangements .

On DATE the applicant again requested that a fine be imposed on ORG for failure to respect the access arrangements .

After DATE , he had no further contact with the girl , even sporadically .

In reports submitted to the court on DATE and CARDINAL DATE the custody officer summarised her conversations with ORG and PERSON She stated that PERSON was very mature for her age and very articulate . She did not understand how her father could say that he loved her and behave towards her in the way he did . He did not take her views into account , criticised her mother and her family , and had told many persons in PERSON 's environment that her mother was incapable of taking proper care of her . During the contact visits , he had complained about her mother . She did not want to be exposed to this . She requested recognition and understanding of her feelings and views . She stated that she was almost an adult and able to make a sensible judgment for herself . The contact with her father had been a source of stress , anxiety and shame for her .

On a subsequent unspecified date the Warszawa - Mokotów District Court ordered the applicant to submit the original of the access agreement of DATE . The applicant complied on DATE .

His application of DATE ( see paragraph CARDINAL above ) was dismissed by ORG on DATE . The court had regard to all the material gathered in the file on the enforcement proceedings . It took into account ORG 's persistent refusal to see the applicant and the fact that she had repeatedly said that she disliked or even hated him . It noted that there was no evidence that ORG had prevented her daughter from seeing her father . It observed that the applicant 's conduct towards PERSON could not have contributed to building good relations between them as he had tried on various occasions to see her unexpectedly at school or in other places or circumstances , which had only heightened the child 's dislike and fear of him . It also noted that PERSON was DATE and her views had to be taken into consideration .

On DATE the court discontinued the proceedings concerning the enforcement of the DATE agreement on the ground that PERSON was now DATE and thus the proceedings had become devoid of purpose .

On DATE the court extended the applicant 's access rights specified in the DATE agreement and ordered that his meetings with PERSON be supervised by child contact supervisors . This decision was later amended by ORG on DATE . That court held that the temporal scope of the applicant 's contact visits with PERSON should remain as determined in the original agreement but upheld the proviso that they should be supervised by child contact supervisors .

In DATE the applicant again requested ORG to change the access arrangements specified in the DATE agreement and to extend his visiting rights in respect of the child . Simultaneously , the mother requested the court to limit the applicant 's access rights to a minimum . These CARDINAL applications were subsequently joined and examined in the same set of proceedings .

The applicant 's daughter was examined by experts in the course of these proceedings . The objective of the expert opinion , submitted to ORG , was to examine the nature of the relationship between the applicant and his daughter and to assess the value of contact visits for the child 's development and well - being .

The experts observed that PERSON had a highly negative opinion of her father . She refused to use his surname as her own name . She was of the view that he had failed to show a proper interest in her and that in fact he despised her and all his actions were aimed at annoying her and her mother . The experts concluded that because of that negative attitude relations between the applicant and his daughter were strained to such an extent that any meaningful contact was impossible .

On DATE the court deprived the applicant of his access rights . The judgment was amended on DATE by ORG and the mother 's application to restrict the applicant 's access rights was dismissed .

In DATE the applicant submitted to the same court an application to have the mother 's custody rights restricted . In DATE ORG submitted an application to have the applicant divested of his rights .

By a decision of CARDINAL DATE the GPE - Mokotów ORG dismissed the applicant 's request , ordered him to undergo therapy and imposed an identical obligation on PERSON and PERSON The court observed that , as the conflict between the parties had made it impossible for them to show a modicum of co - operation in the child 's interest , therapy offered a chance for their relationship to improve . The court found that the conflict between the parents had caused the child to suffer from very serious psychological disturbances .

In a new set of proceedings instituted by the applicant by which he requested that ORG be divested of her parental rights , the court questioned experts at a hearing held on DATE .

On DATE the ORG dismissed the request submitted by the applicant , expressing the view that the applicant was essentially motivated by his wish to harass his former wife .

On DATE ORG requested the DATE - Mokotów ORG to divest the applicant of his parental rights . The applicant lodged an identical application with the same court . The cases were subsequently joined at a hearing held on DATE . A hearing scheduled for DATE was adjourned as a refusal to allow the request to disqualify the judge , submitted by the mother , issued on DATE , had not become final . Subsequent hearings scheduled for CARDINAL DATE and CARDINAL DATE were adjourned as the parties failed to attend them . On CARDINAL DATE a witness failed to comply with the summons and the hearing was adjourned . The next hearing was scheduled for CARDINAL DATE . On DATE the applicant submitted a motion for a lay judge to be disqualified . On CARDINAL DATE the court decided that the mother and child should be examined by the experts . The mother and PERSON were accordingly summoned to report to ORG on DATE but failed to comply with the summonses on DATE . The court scheduled the hearing for DATE . The interview in the ORG was rescheduled for DATE .

On DATE the court discontinued the proceedings as PERSON had turned DATE on DATE .

In DATE the applicant requested ORG to bring , on his behalf , proceedings for denial of his paternity in respect of PERSON The child 's mother was heard by the prosecutor on CARDINAL October CARDINAL . She gave her consent to DNA tests being carried out . The prosecutor informed the applicant thereof and stated that he would bring proceedings before the court only if the results of the tests showed that the applicant was not the father . By a letter of CARDINAL DATE the applicant refused to undergo a DNA test and requested the prosecutor to lodge the case with the court . He submitted that the court should order the mother and child to undergo a test .

The prosecuting authorities brought no proceedings , finding , in the light of the parties ' submissions , that there were no justified grounds on which to challenge the applicant 's paternity .

On an unspecified date in DATE the applicant filed a complaint under LAW June CARDINAL on complaints about a breach of the right to a trial within a reasonable time ( LOC o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki – “ the CARDINAL Act ” ) about a breach of his right to have his case heard within a reasonable time in the enforcement proceedings instituted by his application of DATE and terminated by the decision of CARDINAL DATE ( see paragraphs CARDINAL and CARDINAL above ) .

On DATE ORG dismissed his complaint . It observed that the applicant complained essentially about the second - instance court 's quashing , on substantive law grounds , the decisions given by the first - instance court , which , in his view , had unduly prolonged the proceedings . The court noted that the length complaint could not go to the merits of the decisions and that there had been no periods of inactivity in the proceedings . Having examined the conduct of ORG since the entry into force of LAW on DATE , ORG found that the proceedings had been conducted with due diligence and within a reasonable time .

On DATE ORG discontinued the proceedings instituted by the applicant 's complaint about the unreasonable length of the proceedings , summarised in paragraphs CARDINAL and CARDINAL above . The court found that , given that the impugned proceedings had been discontinued on DATE , a ruling on their length had become redundant .

The relevant domestic law and judicial practice concerning the enforcement of a parent 's visiting rights are set out in the ORG 's judgment in the case of ORG v. GPE , no . CARDINAL , § CARDINAL , DATE .

NORP In particular , according to ORG resolution , if a parent who has been obliged by a court decision to respect the other parent 's access rights refuses to comply therewith , access decisions are liable to enforcement proceedings . The provisions of LAW on enforcement of nonpecuniary obligations are applicable to enforcement of court decisions on parental rights or access rights ( resolution of ORG of DATE , III CZP CARDINAL/CARDINAL , OSNCP CARDINAL DATE ) .

“ CARDINAL . If the debtor is obliged to take measures which can not be taken by any other person , the court in whose district the enforcement proceedings were instituted , on a motion of a creditor and after hearing the parties , shall fix the time - limit within which the debtor shall comply with his obligation , on pain of fine ( ... ) .

If the debtor fails to comply with this obligation , further time - limits may be fixed and further fines may be imposed by a court . ”

If the court obliges a parent exercising custody rights to ensure access to a child to the other parent , LAW is applicable to the enforcement of this obligation .

Article CARDINAL of ORG on the Rights of the PERSON provides that the GPE Parties shall ensure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child , the views of the child being given due weight in accordance with the age and maturity of the child .

The relevant domestic law and practice concerning remedies for the excessive length of judicial proceedings , in particular the provisions of LAW as applicable at the material time , are set out in the ORG 's decisions in cases of ORG v. GPE no . MONEY ( dec . ) , § § CARDINAL , ECHR CARDINAL-V and NORP v. GPE no . CARDINAL ( dec . ) , ORG CARDINAL-VIII and its judgment in the case of ORG v. GPE , no . CARDINAL , § § DATE , ECHR CARDINAL-V.


The applicant , Mr PERSON , is an NORP national , born in DATE and living in GPE . He is represented before the ORG by Mr M. Graff , a lawyer practising in GPE . The respondent Government are represented by Ambassador PERSON , Head of ORG at ORG .

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

The applicant was a member of the executive board of ORG and was responsible for the management of the company ’s finances .

On DATE this company laid an information against the applicant inter alia on the suspicion that the applicant had caused financial damage by abusing his position as financial manager of the company . Point a ) of the information concerns transactions with ORG . It alleges that ORG , chosen by the applicant to carry out the management of ORG investment portfolio , had charged the latter excessive fees . It alleges further that the applicant had requested a refund of CARDINAL NORP schillings ( ORG ) for entrusting ORG with these financial transactions .

On DATE preliminary investigations were opened against the applicant .

On DATE ORG ( Wirtschaftspolizei ) carried out searches at the applicant ’s LOC and at the LOC of FAC , the former director of ORG , who was at the same time a witness against the applicant . CARDINAL diaries and CARDINAL pages of other documentary evidence ( the so - called “ green folder ” ) were seized at ORG ’s home . The documents which were considered relevant to the investigation were listed in a report of CARDINAL DATE .

On DATE the investigating judge at ORG heard the applicant . According to the TIME , the questioning started at TIME The applicant was informed that preliminary investigations on the suspicion of a breach of trust ( PERSON ) under LAW of LAW ) and on the suspicion of offences under LAW ( Aktiengesetz ) were pending against him . He was first heard as regards the alleged breach of LAW and then about the transactions with ORG . In this respect , he was told that he was suspected of having received a refund from PERSON and indications as to the amount at issue and the date of receipt were also given . The applicant stated that he was aware of the allegations and handed over a written statement outlining his position . The questioning on the transactions with ORG ended at TIME whereas the further questioning , which lasted until TIME , concerned facts which are not relevant in the present context .

On DATE the investigating judge decided that the defence was not entitled to inspect certain specified parts of the file . On CARDINAL DATE the applicant lodged a complaint against this decision with ORG ( Ratskammer ) of ORG which was unsuccessful .

On DATE ORG submitted a report on the result of their investigations to ORG . The latter confirmed in writing the receipt of the green folder , which was subsequently transmitted to an expert .

On DATE ORG filed a supplementary information against the applicant concerning transactions with ORG .

On DATE ORG filed another supplementary information against the applicant concerning new facts . It alleged that he had introduced L. as a fictitious intermediary in order to carry out certain financial transactions of ORG , a subsidiary of ORG , and that the commission paid had caused financial damage to ORG .

On CARDINAL and DATE ORG filed further documentary evidence and information .

On DATE ORG received the applicant ’s request to obtain the green folder from the expert in order to enable him to inspect it . He submitted that , according to the report of CARDINAL DATE by ORG , documents which were relevant to the proceedings had been seized at ORG ’s premises and had apparently been handed over to the expert who referred in his written opinion to CARDINAL of those documents . The investigating judge at ORG did not take any decision on this request .

On DATE ORG preferred the CARDINAL - page indictment against the applicant and his co - accused , PERSON , concerning charges of breach of trust under LAW of LAW . The applicant was accused , inter alia , of having in DATE and DATE demanded and received a “ refund ” of about ORG CARDINAL for financial transactions carried out by ORG , and for having introduced , DATE , L. as a fictitious intermediary in order to carry out certain financial transactions of ORG , thus , creating a fictitious claim for commission , causing damage of about ATS CARDINAL . Detailed information as to the underlying facts was given with regard to both charges . The indictment was served on the applicant on DATE .

On DATE the investigating judge , upon the request of ORG on DATE , discontinued the criminal proceedings against the applicant inter alia as regards point a ) of the information concerning “ excessive fees for transactions with the GPE ” ( see above , the information of CARDINAL DATE ) .

On DATE the applicant repeated his request that the green folder be made available to him . Again ORG took no decision .

On DATE the applicant filed a motion for the hearing of CARDINAL witnesses and for access to CARDINAL related criminal court files .

On DATE the trial started before ORG sitting as a court with lay assessors ( ORG ) . When the co - accused , PERSON , was heard , the presiding judge ruled that the applicant was not allowed to be present . Neither the applicant nor his counsel contested this measure . Defence counsel was present during the interrogation . The applicant was re - admitted to the court room as soon as the questioning of PERSON was finished and the presiding judge gave him a summary of PERSON ’s statements . At that stage , neither the applicant nor his counsel asked for further information or complained that the summary of PERSON ’s statements was insufficient . The former director of ORG , PERSON , was heard as a witness in the presence of the applicant and the defence questioned him in some detail .

On CARDINAL , DATE , DATE , DATE and CARDINAL DATE further hearings were held and numerous witnesses were heard .

It is in dispute between the parties when the green folder was made available to the defence . The Government submit that it was available as of DATE of the trial , whereas the applicant submits that he only received copies of parts of it on CARDINAL DATE , i.e. on DATE of the trial .

On DATE , the last hearing day , the applicant ’s counsel filed a further application for the hearing of witnesses . According to the minutes , he also requested that documents from the green folder be read out and - in case it was disputed that PERSON was the author of those documents - to hear PERSON and to appoint a handwriting expert . At the close of the hearing the presiding judge dismissed all outstanding requests for the taking of further evidence .

On DATE the court gave judgment , convicting the applicant of a breach of trust within the meaning of section CARDINAL of LAW , and sentencing him to DATE imprisonment for having demanded and received a “ refund ” of about ORG CARDINAL for financial transactions carried out by ORG . He was also convicted of having introduced PERSON as a fictitious intermediary in order to carry out certain financial transactions of ORG , thus creating a fictitious claim for commission and causing damage of about ATS CARDINAL . It found that , in both cases , he had not transferred the commission to ORG and that he had abused his position as the financial director of ORG , causing it financial damage . The court recalled that the case - law on the question of whether the acceptance of commission by trustees fell within the scope of CARDINAL of LAW had been contradictory for some time , but had been settled by ORG judgment of CARDINAL DATE in another case . According to that judgment , LAW was applicable to the applicant ’s case .

On DATE the applicant filed a plea of nullity and an appeal ( Nichtigkeitsbeschwerde und Berufung ) . He complained about the refusal to hear several witnesses he had called for , and the fact that he had not had access to the green folder before the trial hearings . Thus he had not been able to prepare his defence properly . He further noted that he had not been present when his co - accused had been heard . He alleged that he had been insufficiently informed about the statements made by the co - accused afterwards . Furthermore , he criticised the evaluation of evidence . As to the facts concerning ORG , he alleged that his conviction violated the principle of ne bis in idem because the investigating judge had ordered the criminal proceedings to be discontinued in this respect on DATE . Finally , he complained that the court had erred in law when applying section QUANTITY of LAW to his case . He argued that it was LAW which was pertinent to the offence concerning the acceptance of advantages by trustees ( Geschenkannahme durch Machthaber ) . As this section had entered into force after he had committed the acts in issue , he could not be punished at all .

On DATE the Attorney - General ( ORG ) filed CARDINAL pages of observations ( PERSON ) on the applicant ’s plea of nullity and his appeal .

On DATE the applicant was notified that the hearing before ORG would take place on DATE .

On DATE the applicant , who was at that stage still represented by the lawyer who had filed his plea of nullity and appeal , received the Attorney - General ’s observations and was informed that he could comment on them within a delay of DATE . He sent his CARDINAL - page reply by mail on DATE , which reached ORG DATE . He did not request an adjournment of the hearing .

On DATE the hearing took place and ORG confirmed ORG judgment .

As to the applicant ’s complaint that he had not been adequately informed about the statement of his co - accused L. , who had been heard in his absence , ORG noted that the presiding judge had given the necessary information by way of a summary of the statements . It would have been open to defence counsel to challenge the applicant ’s exclusion from PERSON ’s hearing and to complain about the alleged insufficiency of the summary of L ’s evidence , in order to obtain an interim decision from the court in this respect .

Further , ORG found that the court of first instance had justifiably refused to hear certain witnesses as it had in any case considered that the facts to be proved by those witnesses had already been established . Thus , the refusal did not cause any prejudice to the applicant .

As to the green folder , it noted that the applicant could have applied for the further questioning of PERSON after having obtained the folder , but that he failed to make such an application and had therefore not fulfilled the conditions for a plea of nullity in this respect .

ORG found that the applicant ’s further submissions constituted an inadmissible attempt to challenge ORG assessment of the evidence , which was duly reasoned and free from contradiction .

As to section CARDINAL of LAW , ORG confirmed that it was applicable to the applicant ’s case . Finally , it found that the facts described in the investigating judge ’s order of DATE , namely “ excessive fees for transactions with the ORG ” were not identical to those facts underlying the conviction , namely the receipt of refunds by the applicant . Therefore , the conviction did not violate the principle of ne bis in idem .


Remainder inadmissible;Violation of Art. 3 (substantive aspect);Violation of Art. 5-1;Violation of Art. 34;Non-pecuniary damage - award

Giovanni Bonello;Ján Šikuta;Josep Casadevall;Kristaq Traja;Nicolas Bratza;Päivi Hirvelä

The applicant was born in DATE and is currently serving sentences of life imprisonment and CARDINAL years’ imprisonment in ORG ( GPE ) .

On DATE the NORP authorities issued an arrest warrant in respect of the applicant , charging him with the premeditated homicide of an NORP national in GPE , GPE .

On DATE the applicant was sentenced in absentia to life imprisonment by ORG on a count of murder and to DATE imprisonment on a count of illegal possession of firearms .

On DATE the NORP authorities issued a second arrest warrant concerning the applicant which related to a new charge against him , namely participation in a criminal organisation and international narcotics trafficking . From the documents in the file it transpires that during the period of the proceedings before the NORP courts the applicant was carrying on a lawful business and resided in GPE .

On DATE ORG transmitted to ORG the CARDINAL arrest warrants mentioned above . On DATE the Chief of ORG ordered that “ the arrest warrants be immediately enforced ” .

On DATE ORG sent a fax to the NORP authorities seeking the initiation of criminal proceedings against the applicant for crimes committed on NORP territory .

On DATE the applicant was arrested in GPE on the strength of the arrest warrant issued on DATE by the investigating judge at ORG . The charge related to the applicant ’s involvement in a criminal organisation and international drug trafficking .

On CARDINAL DATE the applicant was remanded in detention for DATE .

On DATE ORG , ( “ the ORG ” ) , dismissed an appeal by the applicant against the grounds of his arrest . On DATE , the prosecutor informed the applicant about the charges against him , namely participation in a criminal organisation and international narcotics trafficking .

On CARDINAL DATE ORG upheld the prosecutor ’s application and ordered the applicant ’s detention in prison for an undetermined period . On DATE ORG upheld the decision .

NORP In DATE and DATE ORG repeatedly requested the NORP authorities to transmit the evidence that grounded the charges against the applicant . In DATE the request was also repeated by the NORP Minister of Justice .

On DATE ORG instituted criminal proceedings in ORG , charging the applicant with international narcotics trafficking ( hereinafter “ the criminal proceedings ” ) .

On DATE ORG found the applicant guilty of establishing a criminal organisation and international narcotics trafficking and sentenced him to DATE imprisonment . According to the applicant , the conviction related to a new charge of which he had never been informed . On DATE ORG , ( “ the Court of Appeal ” ) , upheld ORG judgment but changed the applicant ’s sentence to CARDINAL years’ imprisonment . The applicant appealed to ORG . On DATE ORG changed the qualification of one of the criminal offences of which the applicant had been convicted . It upheld ORG judgment and changed the applicant ’s sentence to DATE imprisonment . A constitutional complaint by the applicant to ORG against the above - mentioned judgments is still pending .

On DATE , while the applicant was in detention on remand on the charges of participation in a criminal organisation and international narcotics trafficking ( see paragraph CARDINAL above ) , the GPE public prosecutor ’s office asked ORG to request the NORP authorities to validate in GPE the sentence imposed on the applicant by ORG on DATE , which had become final on DATE .

On DATE the NORP ORG , among other things , informed the GPE public prosecutor ’s office that the NORP authorities could not seek the validation and enforcement in GPE of a criminal judgment delivered by the NORP courts , in view of the fact that neither country was party to any international agreement on the matter . On DATE the NORP ORG transmitted the above - mentioned judgment , for information purposes , to ORG in GPE .

On DATE ORG in GPE , in a letter with the misleading heading “ Transfer of an NORP national currently detained in GPE ” , informed ORG of the “ request for extradition ” by ORG concerning the applicant , who , according to the ORG ’s letter , was “ serving a sentence in GPE ” .

On DATE ORG and GPE signed an agreement for the transfer of sentenced persons , which was ratified by the respective parliaments in DATE and DATE .

On DATE the NORP ORG , under LAW ( “ the ORG ” ) , requested ORG to institute proceedings for the validation and enforcement in GPE of the judgment concerning the applicant delivered by the NORP court .

On CARDINAL DATE ORG , in a single - judge panel , ordered the applicant ’s detention pending the proceedings for the validation and enforcement in GPE of ORG judgment of DATE . The applicant was served with the decision while he was in detention in connection with the criminal proceedings referred to above ( see paragraphs CARDINAL above ) .

On DATE , under LAW ORG , ORG initiated proceedings before ORG for the validation and enforcement in GPE of the judgment delivered by ORG ( hereinafter “ the validation and enforcement proceedings ” ) .

According to the applicant ’s submissions to ORG in DATE , LAW ORG required , inter alia , his consent for the validation and enforcement in GPE of ORG judgment , which consent he decided not to give ( see paragraph CARDINAL below ) .

On DATE ORG adopted amendments to the provisions of LAW , which , inter alia , repealed the requirement of the detainee ’s consent provided for in point ( e ) of LAW ORG ( see paragraph CARDINAL below ) .

On DATE the ORG filed further observations with ORG , pointing out , among other things :

“ ... in spite of the fact that the consent of the sentenced person is required by LAW ORG for the validity in GPE of a sentence imposed by a foreign authority , this should be interpreted only in circumstances involving the transfer of sentenced persons and not in such a manner as to hinder the course of justice . Moreover , ORG , by PERSON no . CARDINAL of DATE , abrogated point ( e ) of LAW ORG ... ”

On DATE ORG rejected ORG request as not being in compliance with the requirement in LAW , point ( e ) , of the ORG . The court held :

“ ... the requirement laid down in LAW , point ( e ) , of the ORG is necessary for the validity and enforcement in GPE of a sentence imposed by a foreign authority in accordance with ORG and the provisions of domestic law . In accordance with the wording of the above - mentioned LAW , the consent of sentenced persons is required without any distinction between the circumstances of the transfer of detainees or the validity of the sentence imposed by a foreign court . Moreover , PERSON no . DATE of DATE , which abrogates point ( e ) of LAW , is not applicable in the present case since it has not come into force for the time being ... ”

On DATE ORG dismissed an appeal by ORG . The court upheld the reasoning set out in ORG judgment and held that PERSON no . DATE could not be applicable retroactively on the ground that it would have resulted in more severe provisions being applied to the applicant ’s detriment .

On an unspecified date in DATE ORG lodged an appeal with ORG ) against ORG judgment .

On DATE , in order to harmonise and amend the ORG practice ( për unifikimin dhe ndryshimin e praktikës gjyqësore ) , the President of ORG relinquished jurisdiction in favour of ORG Joint Benches .

On DATE ORG , ORG , quashed the judgments of ORG and ORG and remitted the case for fresh consideration to ORG . In its judgment , ORG interpreted provisions of the ORG relating to extradition , the transfer of sentenced persons and the validity and enforcement in GPE of sentences imposed by foreign courts , giving its definition from the standpoint of international law principles and inter - State cooperation . The court held that in circumstances where no ruling could be given on a specific issue because the relevant provisions were inadequate , a legal basis could be provided by international customs , namely the principle of good will and reciprocity , and treaties . In the present case , finding that the requirement laid down in LAW , point ( e ) , of the ORG was inadequate , it considered that LAW on ORG and LAW on ORG provided a sufficient basis for the validation and enforcement in GPE of ORG judgment .

The judgment stated , in so far as relevant , the following :

“ The transfer of sentenced persons has been regulated by LAW on ORG as ratified by ORG and published in ORG no . CARDINAL of DATE ( ... ) . LAW on ORG has been signed but not yet ratified by the ORG . As such , this LAW can not be considered a constituent part of the domestic legal corpus and is not directly applicable . However , its signature and the approval of the engaging provision according to which the ORG recognises and respects the generally recognised norms and principles of the international law , guide us to understand , interpret and justly apply the provisions of the ORG at issue .

In the case of validity and enforcement of a foreign criminal judgment , the reference to and the solution of the case in accordance with point ( e ) of LAW ORG , at the material time , would be nonsense . Were the court to regard the consent of the sentenced person as essential , that would lead to an ad literam interpretation of the provision , as applied by ORG and ORG . However , the interpretation of a legal provision is rather complex . In the event the ad literam interpretation leads to an absurdity [ nonsense ] , a logical and systemic interpretation prevails . According to this interpretation , the said provision shall be interpreted in a reasonable manner . This means that the notion of “ the consent of the sentenced person ” can not be broadly interpreted . It should be narrowly interpreted so as not to lead to an absurdity , which would be the case , were the appellant to give his consent to serve the criminal sentence in his country . As it transpires from the acts , the appellant was tried in absentia since he absconded from the NORP justice .

The consent of a person sentenced by a foreign court is a sine qua non for the determination of the question whether the sentence is served in the sentencing ORG or in the detainee ’s country of origin , that is in the prisons of the country of which he is a citizen [ emphasis added in the original text ] .

This decision of ORG , ORG , finally resolves the problem , holding that the lack of consent by the sentenced person for the validation of a foreign criminal judgment is not an obstacle for the NORP courts to proceed with such a validation and recognition [ emphasis added in the original text ] .

During the examination of the case , the appellant ’s counsel stated that there is no bilateral agreement between GPE and GPE as regards the validity and enforcement of criminal judgments . They maintained that such an act would impinge upon the sovereignty of the NORP state , which is exercised by the ORG through the ratification of an international or bilateral agreement . This claim is unfounded . The NORP ORG manifested its sovereign will through the enactment of the ORG , whose provisions at issue should be applied in accordance with their meaning and the unified interpretation of ORG as outlined above .

It must be underlined that in the absence of signed and ratified instruments , the generally recognised norms of the international law may apply in accordance with the principle of good will and reciprocity . Pursuant to the ORG , ORG is responsible for jurisdictional relations with foreign authorities , including the NORP .

According to LAW , it is within the discretion of the said ORG as a manifestation of the political will of ORG , to request the validation before a court of a foreign judgment . The ORG shall not examine this kind of discretion . It shall only examine whether the request has been made by the competent authority in accordance with the law and whether the documentation is complete . ”

In the retrial proceedings before ORG , the applicant claimed that there had been no request by the NORP authorities for the validation of the NORP criminal judgment against him , having also regard to the NORP authorities’ letter of CARDINAL March CARDINAL ( see paragraph CARDINAL above ) . Furthermore , he added that there was no bilateral agreement between the CARDINAL States for such a validation to take effect . The applicant also relied on the fact that he had not given his consent for the validation .

On DATE ORG , sitting as a bench of CARDINAL judges , relied entirely on the judgment of ORG of DATE . It held that the sentence imposed by ORG was compatible with the provisions of ORG as amended by PERSON no . CARDINAL of DATE . It ruled that the applicant should serve cumulative sentence of life imprisonment in GPE on a count of murder and a count of illegal possession of firearms .

The presiding judge , ORG , expressed a partly dissenting opinion on the above - mentioned judgment , reminding the court that the relevant statutory provisions laid down a maximum penalty of CARDINAL years’ imprisonment instead of life imprisonment as imposed in the applicant ’s case .

According to the applicant ’s submissions in the present proceedings before the ORG , ORG applied those parts of PERSON no . CARDINAL of DATE that contributed to the aggravation of his situation . Moreover , in accordance with LAW ORG as amended by the above - mentioned PERSON , the court should have sat in a single - judge formation in his case . Furthermore , he maintained that , having regard also to Judge PERSON ’s dissenting opinion , the composition of the bench could have influenced the outcome of the proceedings .

On an unspecified date in DATE the applicant filed an appeal , invoking the same grounds as he did before ORG .

On DATE ORG dismissed the appeal and upheld ORG judgment , fully relying on ORG judgment of DATE .

The applicant noted that at the last hearing of the appeal proceedings , Judge PERSON . PERSON , who had presided over the trial until TIME , had been substituted by Judge PERSON without a formal decision .

The applicant produced to ORG judgments which have the same text but were delivered by CARDINAL different benches : the first by a bench presided over by PERSON . PERSON and the second by another bench presided over by PERSON

On DATE the applicant lodged an appeal with ORG . He relied on almost the same grounds of appeal as he did before ORG and ORG . Moreover , the applicant challenged the application of the generally recognised norms of international law as inadequate and imprecise .

On DATE ORG dismissed the applicant ’s appeal as the grounds of appeal fell outside the scope of Articles CARDINAL and CARDINAL § CARDINAL of the ORG ( see paragraphs CARDINAL and CARDINAL below ) .

In DATE the applicant appealed to ORG challenging ORG judgments of DATE and DATE . He alleged that the proceedings had been unfair in various respects . In particular , he complained that the criminal proceedings had been in breach of the ORG ’s requirements as laid down in LAW ( composition of courts ) , CARDINAL ( sentenced ORG consent ) and CARDINAL ( for the validation and enforcement in GPE of a sentence imposed by a foreign authority , a request addressed by the foreign authority and a valid international and/or bilateral agreement had to be in force in both countries ) . The applicant maintained that no request for the validation of the sentence had been addressed by the NORP authorities to the NORP Minister of ORG , nor had there been any international convention in force between the countries at the material time .

On DATE ORG dismissed the applicant ’s appeal . It found ORG judgments of DATE and CARDINAL DATE constitutional . Moreover , it held that even though the composition of ORG bench of CARDINAL DATE was in breach of the law , it did not render the process unconstitutional as a whole . As regards the existence of CARDINAL judgments delivered by different benches of ORG on DATE , ORG noted that there was CARDINAL judgment in the case file , which corresponded to the bench that had decided the case .

The judgment stated , in so far as relevant , as follows :

“ ORG considers that the arguments raised in ORG , ORG , judgment [ of DATE ] are not in breach of the LAW or [ international ] conventions . The mutual recognition [ validation ] of court judgments serves to strengthen legal cooperation between GPE and the achievement of certain objectives in relation to the freedom of liberty , security and justice . The principle of reciprocity presupposes the application of mutual and legal instruments in inter - state relations . In international law , reciprocity is defined as the right to equality and mutual respect amongst countries . International criminal doctrine and case - law have confirmed that cooperation amongst countries can occur even in the absence of bilateral treaties , on the basis of the principle of reciprocity .

As a rule , the principle of reciprocity applies through international instruments such as treaties and agreements , which envisage mutual rights and obligations . But , in exceptional cases , in the absence of such agreements , the GPE are not precluded from directly applying the principle of reciprocity , the generally recognised norms of international law and good will . Their application is in the interest of strengthening the States’ cooperation in the fight against organised crime and criminality .

ORG notes that the judgment of ORG , ORG as regards ORG CARDINAL and CARDINAL is not unconstitutional . They [ ORG ] rightly concluded that there was no conflict between those provisions and the international conventions’ provisions . The domestic provisions should apply in accordance with the interpretation made by the [ ORG ] Joint Benches .

( ... ) It may be understood ( ... ) that the request for the validation of a foreign court judgment may be made even in the absence of an agreement , on the basis of good will , generally recognised norms and the principle of reciprocity . ”

On DATE , CARDINAL DATE and DATE , in view of the deterioration in the applicant ’s health , his representative and his father requested ORG and the prison authorities to allow him to be examined by appropriate doctors .

From DATE to CARDINAL DATE the applicant underwent in - patient treatment and examinations at ORG . During that period an initial magnetic resonance imaging ( MRI ) scan was carried out . He was diagnosed as suffering from multiple sclerosis ( GPE ) . The doctors reported that , even when the disease was quickly detected and treated , it was capable of causing shock , organ damage , permanent disability or death .

On DATE a second MRI scan was carried out .

On DATE the applicant ’s representative informed the ORG that the applicant ’s state of health had deteriorated and that he consequently needed further treatment and an essential medical examination by specialist neurologists . He filed CARDINAL reports regarding the applicant ’s state of health , which the doctors reported had worsened .

On DATE ORG requested authorisation from the GPE prosecutor ’s office for medical examinations at ORG in respect of the applicant and CARDINAL other inmates .

On an unspecified date in DATE the GPE prosecutor ’s office gave its approval in relation to the other CARDINAL prisoners and rejected the request concerning the applicant , stating that it was not competent to rule on his transfer from prison . It designated ORG as the competent authority .

On DATE ORG reiterated its request to ORG concerning the applicant ’s medical treatment , but received no response . On DATE the prison requested ORG to designate the competent authority to decide on the applicant ’s transfer for medical purposes .

On DATE the applicant initiated criminal proceedings against the GPE prosecutor ’s office , complaining that its neglect in ensuring his medical care had contributed to the worsening of his health , which constituted discrimination vis - à - vis those prisoners who had been allowed to have medical treatment .

On DATE the applicant was transferred to FAC , a high - security prison located QUANTITY from FAC and detained under a high - security regime .

From DATE the applicant was refused the opportunity to meet his lawyers and have any other contact with them .

On DATE , following repeated requests by the doctors of FAC , the applicant was sent to ORG for a medical examination . Following consultations among the doctors of that hospital and ORG on DATE , the applicant ’s diagnosis was confirmed and they concluded that it was imperative for his health that he be treated with interferon - beta .

In a letter of CARDINAL DATE the applicant ’s representative informed the Registry that from DATE the prison authorities had suspended the applicant ’s medical treatment , contrary to the ORG opinions , and that he was treated with vitamins and anti - depressant drugs .

In a letter of CARDINAL DATE the applicant ’s representative informed ORG that without a court decision , the applicant had been placed under the special prison regime provided for in section CARDINAL of LAW , which derogated from the conditions for ordinary detention laid down in the LAW .

On DATE , following persistent requests by the applicant , ORG assessed him and reported on the medical treatment he was being given , finding that he was being treated mainly with drugs prescribed to cure rheumatism .

In DATE the applicant initiated several sets of criminal proceedings against the Head of ORG , complaining of negligence in the provision of medical care to him . On unspecified dates ORG dismissed his applications , and appeals by the applicant against the prosecutor ’s decisions are still pending before the domestic courts .

DATE the doctors confirmed that the applicant suffered from multiple sclerosis . They reported deterioration in the applicant ’s health , caused by the total lack of medical treatment for DATE . Fearing for his life , they strictly recommended that the applicant immediately receive adequate medical treatment .

NORP In response to the applicant ’s request of DATE , the President of the ORG decided , on DATE , to indicate to ORG an interim measure under LAW , stating that “ the applicant should immediately be transferred to a civilian hospital in order that a medical examination of his condition can be carried out and that he can be given the treatment appropriate to his condition . ” The President also decided to request the ORG to immediately inform the ORG of any decision to retransfer the applicant to ORG , attaching any relevant medical certificate supporting his retransfer .

In TIME DATE , given that it was the first time that an interim measure was being applied in respect of GPE , GPE , ( “ the Registrar ” ) , spoke to ORG over the telephone and officially notified the content of the interim measure and the importance of complying therewith . ORG was informed that a copy of the notification of the indication under LAW would be subsequently sent by facsimile .

Several attempts to send the notification by facsimile were unsuccessful in TIME DATE . On TIME DATE , having regard to the recurring problem with the facsimile , a scanned copy of the notification was sent by electronic mail to ORG who acknowledged receipt thereof ( also via electronic mail ) . On TIME , the Government ’s Agent informed the ORG in a telephone conversation that she had urgently contacted ORG , ORG , ORG and other responsible state institutions in order to comply with the ORG ’s interim measure . In their written submissions , the ORG confirmed the above statement .

From DATE the Government did not provide any information concerning any measures taken to comply with the ORG ’s interim measure of DATE .

DATE . On DATE the applicant informed the ORG that he had not yet been transferred .

On DATE the applicant ’s letter was forwarded to the Government , drawing their attention to the fact that a failure to comply with an interim measure could give rise to a violation of LAW .

On DATE , following an order of ORG , the applicant was transferred to ORG with a view to being taken to hospital for the conduct of medical examinations . On DATE the applicant refused to be transferred to hospital and started a hunger strike . He alleged that the authorities had to provide him with the appropriate treatment instead of conducting medical examinations .

On DATE , the Registrar made several calls to the applicant ’s representative and to ORG . The Registrar urged the applicant to end the hunger strike and to comply with the ORG ’s interim measure about his transfer to hospital , where a medical examination of his situation would be conducted . The PERSON also called upon the authorities to comply with the ORG ’s interim measure and to refrain from any use of force , as alleged by the applicant .

On DATE , the applicant was transferred to the neurology ward of ORG ( PERSON – “ the ORG ” ) where he had specialised medical examination .

On DATE , following a letter of the ORG that the applicant ’s presence was no longer required , the applicant was transferred to ORG .

On DATE the Government provided the ORG with a copy of the applicant ’s medical file following the medical examinations of CARDINAL DATE . A ORG panel had concluded that the applicant suffered from multiple sclerosis . The ORG panel recommended that the applicant be treated with interferon beta with a view to stabilising his health and preventing progression of the disease . The doctors were unable to accurately describe the progression of the disease over DATE , as he had not been under medical care . They expressed the view that the applicant ’s health did not present any urgency and , under these circumstances , patients were usually treated as out - patients without any need to be hospitalised .

On DATE the Government confirmed that the applicant ’s treatment with interferon beta had started on DATE in accordance with the ORG panel ’s conclusions . The treatment was being administered DATE and it would appear that the applicant ’s health has been stable ever since .

DATE . On DATE the President of the ORG decided to refuse the applicant ’s request for the application of a renewed Rule CARDINAL indication . The Government , however , were requested “ to inform the ORG on a regular basis about the applicant ’s state of health and to provide medical evidence of this , bearing in mind that the applicant ’s health conditions may necessitate specialised assistance while in prison . ”

On DATE the Government informed the ORG that the applicant has been regularly provided with interferon beta and other medicines appropriate to his health .

LAW QUANTITY of the LAW provides that the law constitutes the basis and delimits the boundaries of the activities of the ORG and that the LAW is the highest law in GPE .

DATE LAW provides that GPE applies international law that is binding upon it .

The Code of Criminal Procedure , in its relevant parts , provides as follows :

Article CARDINAL § CARDINAL , point ( ç ) , of the ORG , as amended by LAW no . DATE of DATE ( in force from DATE ) , provides that “ ... district courts shall sit in a single - judge formation in cases concerning cooperation with foreign authorities ... ” .

Article CARDINAL provides that an appeal to ORG should be made when : ( a ) the criminal law has not been respected or has been applied erroneously ; ( b ) there have been breaches resulting in the nullity of the court ’s judgment in accordance with LAW ORG ; ( c ) there have been procedural violations that have affected the adoption of the decision .

Article CARDINAL § CARDINAL provides that a judgment of retrial proceedings may be appealed to ORG only in so far as it does not relate to any grounds that were previously decided upon by ORG .

Article CARDINAL , on the validity in GPE of foreign sentences , provides that ORG , when informed of a sentence imposed by a foreign authority concerning NORP citizens , must send the prosecutor ’s office a copy of the judgment and any relevant documents . ORG requests the validation of a foreign sentence when it considers that in accordance with an international convention , the decision in question must be executed or any other effects of it must be recognised in GPE .

Article CARDINAL of the Code of Criminal Procedure , before being amended by Law no . CARDINAL of DATE , provided that a foreign court ’s sentence could not be recognised and enforced in GPE in any of the following circumstances : ( a ) the sentence had not become final according to the laws of the ORG in which it had been imposed ; ( b ) the sentence contained provisions which ran counter to the principles of the rule of law as applied by ORG ; ( c ) the sentence had not been imposed by an independent and impartial court or the defendant had not been summoned to appear before the trial or had not been granted the right to be questioned in a language that he understood and to be assisted by a defence lawyer ; ( ç ) there were justified reasons to believe that the proceedings had been influenced by considerations regarding race , religion , sex , language or political beliefs ; ( d ) the act for which the sentence was imposed was not provided for as a criminal offence in NORP law ; ( dh ) a final decision had been delivered or criminal proceedings were in progress in GPE in respect of the same act and against the same person ; or ( e ) the sentenced person or his representative had not granted his consent .

Section CARDINAL of Law no . DATE of DATE ( in force from DATE ) provides : “ LAW , point ( e ) , of the ORG shall be abrogated . ”

Article CARDINAL of LAW , as in force at the time when the offence was committed in DATE , provided that a person convicted of premeditated homicide should be sentenced to a term of CARDINAL to DATE of imprisonment and , where there were aggravating circumstances , to life imprisonment or death .

Taking into consideration the revival of blood feuds in the north and the north - east region of GPE , Law no . DATE of DATE , which came into force on DATE , amended inter alia Article CARDINAL of LAW by adding a new paragraph that regulates revenge killings in order to stop the total destruction of families . The new provision , in force at the time the NORP sentence was converted by the NORP courts , reads as follows :

“ CARDINAL . A person convicted of premeditated homicide shall be sentenced to a term of CARDINAL to DATE of imprisonment .

A person convicted of premeditated homicide because of an interest or / and vendetta shall be sentenced to a term of DATE and life imprisonment . ”

Section CARDINAL of LAW , as in force at the material time , provided that , in the absence of medical treatment in the prison ’s health unit and when necessary , the prisoner may be transferred to a prison hospital or other medical institution , upon the order of the prosecutor . The prisoner has the right to appeal within DATE to the district court against the prosecutor ’s refusal [ to transfer him to a hospital ] .

The Convention entered into force in respect of GPE on DATE . It was signed by GPE on DATE and for the time being has not been ratified . Thus , it was not in force in respect of either country on DATE , when the applicant was convicted by ORG . Its relevant provisions read as follows :

“ CARDINAL . A Contracting State shall be competent in the cases and under the conditions provided for in this Convention to enforce a sanction imposed in another Contracting State which is enforceable in the latter ORG .

This competence can only be exercised following a request by the other ORG . ”

The objectives of the DATE LAW , including its LAW of DATE , are to develop international cooperation in the field of criminal law and to further the ends of justice and social rehabilitation of sentenced persons . The LAW to LAW states that these objectives require that foreigners who are deprived of their liberty as a result of their commission of a criminal offence should be given the opportunity to serve their sentences within their own society . Its provisions , in so far as relevant , read as follows :

DATE Definitions

“ For the purposes of this Convention :

c. “ sentencing ORG ” means the ORG in which the sentence was imposed on the person who may be , or has been , transferred ;

d. “ administering ORG ” means the ORG to which the sentenced person may be , or has been , transferred in order to serve his sentence ” .

LAW for transfer

“ CARDINAL . A sentenced person may be transferred under this Convention only on the following conditions :

a. if that person is a national of the administering ORG ;

The Transfer Convention entered into force in respect of GPE on DATE and in respect of GPE on DATE . LAW has not been ratified to date by either country .

The ORG visited GPE in DATE , DATE and DATE . In DATE , the delegation inspected , inter alia , ORG .

In this report ( ORG ( DATE ) CARDINAL ) the ORG found that the health - care facilities , “ were of a very poor quality in all the establishments visited . For instance , a piece of equipment as basic as weighing scales was absent everywhere . Needless to say , such a state of affairs also hampers the adequate oversight of the nutrition provided in the establishment , as well as the supervision of hunger strikes which occurred from time to time . It is also of concern that no running water was available in the dentist ’s surgery at FAC . Further , both at FAC and FAC . CARDINAL , the state of cleanliness and hygiene in the ORG consultation rooms left much to be desired . ”

The ORG further noted “ a number of serious shortcomings as regards the medical screening upon admission in the prisons visited ( in particular , examinations not being carried out systematically or only in a very perfunctory manner ) . ” It also expressed its concern “ that newly arrived remand prisoners were not systematically screened for transmissible diseases ( such as hepatitis B and C , HIV , syphilis and tuberculosis ) , and that no information was being provided to inmates regarding the prevention of such diseases ” .

The ORG noted that at Prisons nos . CARDINAL and CARDINAL a number of medical files were not available . When “ found ” , those files contained nothing other than the names of the prisoners concerned .

As regards the treatment of patients with serious medical conditions , the ORG observed that a number of individual cases illustrated alarming shortcomings in some of the establishments . The relevant excerpts state :

“ At FAC and FAC , the delegation met CARDINAL prisoners who , due to their health condition ( severe psychosis and an advanced stage of cancer , respectively ) , were in urgent need of specialised treatment in a hospital setting . However , no initiatives had been taken to transfer the prisoners concerned to ORG . During the end - of - visit talks , the delegation requested the NORP authorities to take urgent measures in respect of the CARDINAL above - mentioned cases . In their letter of DATE , the NORP authorities confirmed that both prisoners had been transferred to ORG .

At FAC , the delegation met a prisoner suffering from diabetes who was not receiving a special diet . The ORG must stress that such a state of affairs amounts to a denial of treatment . Further , in the case of another prisoner at ORG , who was suffering from tuberculosis , the delegation observed that there had been a considerable delay in transferring the prisoner concerned to ORG . Further , no protective measures had been taken during his transfers to the hospital , in order to avoid other prisoners or members of staff becoming infected with the disease . ”

The ORG recommended that the NORP authorities review the provisions of health care in the establishments visited .

In this report ( ORG ( DATE ) DATE ) the ORG noted the domestic authorities’ failure to implement their recommendations , particularly as regards the medical examinations on admission to pre - trial detention facilities .

The ORG noted that “ no improvements had been made as regards the general provision of health care in either establishment visited , notwithstanding various recommendations made by the ORG in the reports on DATE visits ” .

As regards one of the pre - trial detention facilities that the ORG visited , it noted that “ conditions in the health - care facilities were appalling . The delegation received many complaints from inmates about delays in having access to the doctor and the quality of the health care provided ; the delegation observed itself , on the spot , the case of CARDINAL inmate in need of urgent medical care who had been left in a state of total neglect ” .

NORP The ORG raised the issue of long delays which had been observed in transferring inmates who were in urgent need of hospitalisation to a hospital . “ The DATE visit demonstrated that this problem had not yet been resolved . The delegation was informed that general hospitals were reluctant to admit detainees from pre - trial detention facilities , due to security considerations , while transfers to ORG in GPE were reportedly difficult , because ORG falls under the authority of ORG ” .

In this report ( ORG ( DATE ) CARDINAL ) the ORG found that the provision of general health care appeared on the whole to be adequate in most of the establishments visited , despite situations which gave rise to particular concern . It also noted some improvements as regards medical examinations on admission , even though that “ remains a particularly problematic area in the NORP prison system ” .

The ORG found that there had been shortcomings in the provision of specialist care , notably the provision of dental care and psychiatric care .