ZEHNALOVÁ AND ZEHNAL v. THE CZECH REPUBLIC

The applicants, Mrs Jitka Zehnalová and her husband, Mr Otto Zehnal, are Czech nationals who were born in 1962 and 1958 respectively and live in Přerov. They were represented before the Court by Mr P. Šturma, of the Prague Bar. At the hearing on 19 February 2002 the applicants’ representative was assisted by Mr J. Ondroušek and Ms A. Klírová, advisers. The respondent Government were represented by Mr A. Dvořák, the Czech Republic’s representative before the European Court of Human Rights, assisted by Ms E. Vachovcová, Ms E. Petrová, Ms K. Sirotková, Mr J. Just and Ms E. Hašková, advisers.

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

The first applicant is physically disabled.

A large number of public buildings and buildings open to the public in the applicants’ home town are not equipped with access facilities for people with disabilities (people with impaired mobility).

On 7 December 1994 the first applicant applied to the Přerov Municipal Office (městský úřad) under Article 65 of the Code of Administrative Procedure, complaining that a number of public buildings and buildings open to the public in Přerov did not comply with the technical requirements laid down in Decree no. 53/1985 (amended by Decree no. 174/1994) and in the Building Act (Law no. 50/1976, amended by Law no. 43/1994). On the same day she sent a letter to the same effect to the Přerov District Office (okresní úřad). On 19 December 1994 the head of the District Office informed her in reply that 219 certificates of approval issued in respect of the buildings concerned would be reviewed. On 29 December 1994 the Mayor of Přerov informed her that the Town Council had instructed a committee to contact disabled people’s organisations in order to take the necessary measures to improve the situation regarding disabled access.

Following delays by the District Office in initiating the review procedure provided for in Article 49 § 2 of the Code of Administrative Procedure, the first applicant asked the Ministry of Economic Affairs (ministerstvo hospodářství) to conduct a review of its own motion. On 5 June 1995 she was informed that her case would be “dealt with by the District Office in accordance with the law”. Nevertheless, the Ministry did not set any deadline and the District Office dismissed or took no action on most of the complaints. Although some of the obstacles complained of have since been removed, the applicants maintain that that has not been the result of pressure from the authorities. The Government contend that the District Office, which had ordered an inspection, was gradually examining the 219 cases before it and that the Ministry had examined a large number of the first applicant’s suggestions. In their submission, the situation could not be remedied immediately, regard being had to the technical features of the existing buildings and the considerable cost of renovations. However, the Government point out that some improvements have been made where possible, for example as a result of negotiations with the owners of the buildings.

On 21 November 1995 the applicants applied to the Ostrava Regional Court (krajský soud) under Article 138 of the Code of Civil Procedure for exemption from the payment of court fees. They also asked to have a lawyer assigned pursuant to Article 30 of the Code in order to prepare their applications for the review of the certificates of approval for 174 buildings, which they had learned had been issued by the Přerov Municipal Office’s Building Department (odbor výstavby městského úřadu) before 7 December 1994. According to the Government, the complaints the applicants were intending to lodge concerned general matters of public interest and were accordingly not admissible in the administrative courts. The applicants dispute that assertion, maintaining that their complaints related solely to obstacles in their home town with which they were confronted on a daily basis.

On 7 February 1996 the Regional Court refused the applicants’ application on the ground that it had no prospect of success within the meaning of Article 138 of the Code of Civil Procedure as it did not satisfy the requirements laid down in Article 249 of the Code and the applicants had not been parties to the proceedings before the administrative authorities which had resulted in the issuing of the certificates of approval.

On 19 February 1996 the applicants appealed to the High Court (Vrchní soud). They again asked to be exempted from the court fees and to have a lawyer assigned, relying, in particular, on Article 36 of the Charter of Fundamental Rights and Freedoms (Listina základnich práv a svobod) and on Article 13 of the European Convention on Human Rights. They also called on the High Court to stop discrimination against people with disabilities.

In a decision of 29 April 1996 the High Court declined jurisdiction on the ground that, pursuant to Article 250j § 4 of the Code of Civil Procedure, no appeal lay against the Regional Court’s decision.

On 23 July 1996 the applicants appealed to the Constitutional Court. They complained, in particular, that although Decree no. 53/1985 laid down the general technical specifications for public buildings or buildings open to the public with a view to ensuring that people with impaired mobility could have access to and make use of them, many buildings in Přerov did not comply with those requirements and were therefore not accessible to people with disabilities. They mentioned, in particular, the post office, the police stations, the customs office, the District Office, the district social-security office, cinemas, the District Court, various lawyers’ offices, most specialist doctors’ surgeries and the town swimming pool. They also submitted that their applications for a review of the certificates of approval had not been dealt with in a competent or satisfactory manner by the administrative authorities. They asked the court to review the constitutionality of section 59(1) of the Building Act, by which they were prevented from taking part in proceedings before the administrative authorities at the construction stage, and also to review the decisions by which the Regional Court and the High Court had refused to exempt them from the court fees and to assign a lawyer to present their case – decisions which, in their submission, amounted to a violation of Article 6 of the Convention. According to the Government, the purpose of their appeal was simply to ascertain whether the High Court’s decision against them had precluded the possibility of judicial review of their case.

On 7 January 1997 the applicants applied for legal aid and asked to have a lawyer assigned to represent them in the Constitutional Court. On 31 January 1997 the Constitutional Court informed them that they satisfied the requirements for obtaining legal aid but would receive it only if their constitutional appeal was not dismissed on procedural grounds or as being unfounded, as provided in section 43 of the Constitutional Court Act.

In a decision of 10 March 1997 the Constitutional Court dismissed the applicants’ appeal. It noted, firstly, that they were not entitled to challenge the constitutionality of section 59 of the Building Act since that provision had not been applied by the High Court, and, secondly, that the decisions complained of did not disclose any breach of constitutional law or of any other legal provisions or international treaties.

By section 72, a constitutional appeal may be lodged by any natural or juristic person who claims that a final decision given in proceedings to which he or she was a party, or a measure or any other action taken by a public authority, has infringed his or her fundamental rights or freedoms as guaranteed by a constitutional law or an international treaty within the meaning of Article 10 of the Constitution. The appeal must be lodged within sixty days of the date on which the final decision was served in respect of the final remedy provided for by law or, if no such remedy exists, of the date of the event forming the subject matter of the constitutional appeal.

By section 59(1) of the Building Act (Law no. 50/1976), the parties to proceedings relating to building work are the builder and the natural and juristic persons with a right of property or other rights over the land or any adjacent buildings which might be affected by the issuing of a building permit. Section 78(1) provides that the parties to proceedings relating to the issuing of a certificate of approval are the builder and the user of the building, if his or her identity is already known.

Section 82(3) provides that the building authority should not issue a certificate of approval in respect of a public building if people with disabilities have no access to the areas open to the public and are therefore unable to use them.

Decree no. 53/1985 on the general technical specifications for the use of buildings by people with impaired mobility, subsequently replaced by Decree no. 174/1994 of the Ministry of Economic Affairs, which came into force on 1 October 1994, contains provisions designed to ensure proper disabled access to public buildings and buildings open to the public (such as: offices used for administrative or management purposes or for the provision of services; shops; catering facilities; sports facilities; cultural, health and welfare institutions; public communications facilities; and hotels and motels) and the elimination of all architectural barriers.

By Article 30 § 1, a party to proceedings who satisfies the requirements for exemption from court fees may have a lawyer assigned where this is necessary for the protection of his or her rights.

By Article 138 § 1, the presiding judge may fully or partly exempt a party to the proceedings from the payment of court fees where this is justified by the party’s circumstances, provided that the action brought is not arbitrary or manifestly devoid of any prospect of success.

Article 250b § 1 provides that an administrative appeal (správní žaloba) against a decision by an administrative authority must be lodged within two months of the decision in issue, except where the law provides otherwise.

By Article 250 § 2, an administrative appeal may be lodged by a natural or juristic person who, as a party to proceedings before an administrative authority, claims to have been adversely affected by a decision taken by that authority. An appeal may also be lodged by a natural or juristic person who was not treated as a party to the proceedings before the administrative authority but should have been.

Article 65 §§ 1 and 2 of the Code of Administrative Procedure provides that a final decision by an administrative authority may be reviewed by a higher administrative authority acting of its own motion or otherwise. The administrative decision in issue must be quashed or varied where it is found to have breached the law.

Article 13 guarantees the right to social and medical assistance. It provides that, with a view to ensuring the effective exercise of the right to social and medical assistance, the Contracting Parties are to undertake to: (1) ensure that any person who is without adequate resources and who is unable to secure such resources either by his own efforts or from other sources, in particular by benefits under a social-security scheme, is granted adequate assistance, and, in case of sickness, the care necessitated by his condition; (2) ensure that persons receiving such assistance do not, for that reason, suffer from a diminution of their political or social rights; and (3) to provide that everyone may receive by appropriate public or private services such advice and personal help as may be required to prevent, to remove, or to alleviate personal or family want.

Recommendation No. R (92) 6 of the Committee of Ministers on a coherent policy for people with disabilities, adopted on 9 April 1992, defines a handicap as

“... a disadvantage, for a given individual, resulting from an impairment or a disability, that limits or prevents the fulfilment of a role that is normal (depending on age, sex, and social and cultural factors) for that individual”.

The Recommendation urges member States of the Council of Europe to “guarantee the right of people with disabilities to an independent life and full integration into society, and recognise society’s duty to make this possible” so as to ensure “equality of opportunity” for people with disabilities. The public authorities should aim, inter alia, to enable people with disabilities “to have as much mobility as possible, and access to buildings and means of transport” and “to play a full role in society and take part in economic, social, leisure, recreational and cultural activities”.

As regards leisure time and cultural activities in particular, the Recommendation states:

“All leisure, cultural and holiday activities should be made accessible to people with disabilities. ... Structural, technical, physical and attitudinal obstacles which limit the enjoyment of the above activities should be removed. In particular, access to cinemas, theatres, museums, art galleries, tourist venues and holiday centres should be improved... Cultural and leisure venues should be planned and equipped so that they are accessible and can be enjoyed by people with disabilities.”

The Recommendation also states: “The exercise of basic legal rights of people with disabilities should be protected, including being free from discrimination.”

In addition, Recommendation 1185 (1992) on rehabilitation policies for the disabled, adopted by the Parliamentary Assembly of the Council of Europe on 7 May 1992, emphasises: “Society has a duty to adapt its standards to the specific needs of disabled people in order to ensure that they can lead independent lives.” In furtherance of that aim, it calls on the governments and agencies concerned “to strive for and encourage genuine active participation by disabled people ... in the community and society” and, to that end, to guarantee, amongst other things, “ease of access to buildings”.

The revised European Social Charter, adopted by the Committee of Ministers on 1-4 April 1996 and opened for signature on 3 May 1996, provides in Article 15, entitled “The right of persons with disabilities to independence, social integration and participation in the life of the community”:

“With a view to ensuring to persons with disabilities, irrespective of age and the nature and origin of their disabilities, the effective exercise of the right to independence, social integration and participation in the life of the community, the Parties undertake, in particular:

to promote their full social integration and participation in the life of the community, in particular through measures, including technical aids, aiming to overcome barriers to communication and mobility and enabling access to transport, housing, cultural activities and leisure.”


The applicant, who is of Georgian origin, was born in 1958 in Georgia and has lived in Riga (Latvia) since 1984. She was a Soviet national until 1991 and now has no nationality.

In 1982 the applicant, who was living in Russia at the time, married a Soviet civil servant employed by the USSR Ministry of the Interior. In 1984 the couple had a daughter, born in Russia. In the same year the applicant and her family settled in Latvian territory.

In 1987 the applicant’s husband was granted the right, in a professional capacity, to rent a room in a “duty residence” in Riga. In July 1988 he exchanged the accommodation he had previously been renting in Kazan (Russia) for the right to rent a State-owned flat in Riga. He and his family moved in straight away.

On 16 March 1990 the applicant cancelled her formal registration of residence (known at the time as пропucкa in Russian and pieraksts or dzīvesvietas reģistrācija in Latvian) in Volzhsk (Russia). On 16 April 1990 the applicant’s husband registered her, without her knowledge or consent, as resident at the family’s new address in Riga. In August 1990 he registered his own residence at that address.

In the meantime, in May 1990, the applicant lodged a complaint with the relevant local authority concerning her residence registration, arguing that her husband had registered her residence unlawfully without informing her. Consequently, on 15 June 1990, her name was removed from the register in question. Her minor daughter, however, continued to be registered at her father’s address until October 1994.

In October 1990 the applicant and her husband divorced.

In August 1991 Latvia regained full independence. In December 1991 the Soviet Union, the State of which the applicant had hitherto been a national, broke up. The applicant therefore became stateless.

By a final judgment of 3 February 1993 the Riga City Vidzeme District Court granted the applicant the right to rent the room obtained by her former husband in a “duty residence” in 1987. Shortly afterwards, still in February 1993, the applicant requested the Interior Ministry’s Nationality and Immigration Department (Iekšlietu ministrijas Pilsonības un imigrācijas departaments – “the Department”) to enter her name in the register of residents (Iedzīvotāju reģistrs) as a permanent resident of Latvia. In her request, however, she gave the address at which her ex-husband had unlawfully registered her, rather than the address in Riga at which she then lived. The Government explained that this had been a case of mistaken interpretation of the law on the register of residents, one which had had farreaching consequences, having led to the loss of the applicant’s legal status in Latvia.

The Department granted the applicant’s request. In March 1993 her daughter obtained the same registration as her mother. However, by a decision of 21 July 1993, the Department cancelled the applicant’s registration on the ground that the stamp in her passport was false. The file was immediately forwarded to the Kurzeme district prosecutor who, in a decision of 17 January 1994, decided not to institute criminal proceedings against the applicant. The prosecutor found that the registration stamp was authentic, but had been placed in the passport by the authorities in breach of the relevant regulations. The prosecutor concluded that, although the applicant’s registration of residence was not valid, she could not be charged with forgery or use of forged documents.

On 15 February 1994 the Department removed the applicant’s name from the register of residents and cancelled her personal identification code (personas kods). On 21 September 1994 the same action was taken in respect of the applicant’s minor daughter.

On 30 November 1994 the Civil Division of the Supreme Court allowed a third-party appeal by the Prosecutor General’s Office and quashed the final judgment of 3 February 1993 concerning the applicant’s right to rent the room she was living in. The case was therefore referred back to the Riga City Vidzeme District Court, which, in an order of 29 December 1999, decided “not to examine the case”.

On 9 January 1995 the Department served a deportation order (izbraukšanas rīkojums) on the applicant, ordering her to leave Latvia with her daughter by 15 January 1995. The Department had discovered that, on 1 July 1992, the decisive date laid down by the Aliens and Stateless Persons (Entry and Residence) Act (“the Aliens Act”), the applicant had not had an officially registered permanent residence in Latvia. Under the terms of the first paragraph of the Supreme Council’s decision on the arrangements for entry into force and application of that Act (see paragraph 40 below), she ought therefore to have applied for a residence permit within one month of the date of entry into force, failing which she would be made the subject of a deportation order; the applicant, however, had omitted to do this.

Having lodged an administrative appeal with the head of the Department, without success, the applicant applied to the Riga City Vidzeme District Court seeking to have the order for her deportation set aside and to have her name re-entered in the register of residents.

By a judgment of 26 April 1995 the court of first instance rejected the application. The court found that, since the registration of the applicant’s residence in Riga had never been valid, she did not fall within the scope of the Act on the Status of Former USSR Citizens without Latvian or other Citizenship (“the Non-Citizens Act”); she was therefore illegally resident in Latvia. The applicant lodged an appeal on points of law against this judgment with the Supreme Court. The latter, in a final judgment of 19 May 1995, dismissed the appeal on the same grounds as the lower court.

In March 1997 the applicant made a fresh application for a residence permit to the Department; the application was rejected.

Following the entry into force on 25 September 1998 of amendments to section 1 of the Non-Citizens Act, the applicant requested the head of the Interior Ministry’s Nationality and Migration Directorate (Iekšlietu ministrijas Pilsonības un migrācijas lietu pārvalde – “the Directorate”), which had succeeded the Department, to regularise her stay in accordance with the Non-Citizens Act. When her request was refused, she lodged a fresh application with the Riga City Central District Court. In her memorial she stressed in particular that she had been living in Latvia for sixteen years and that she and her daughter had no other country to move to.

In a judgment of 8 September 1999 the district court rejected the application. It held that the applicant did not satisfy the conditions laid down in section 1(1) of the Non-Citizens Act since, on 1 July 1992, she had not had a valid registration of residence in Latvia. Furthermore, on that date, she had been resident in Latvian territory for only eight years rather than the required ten years. With specific regard to whether the registration of the applicant’s residence in Latvia was null and void, the court referred to the arguments and findings set out in the Supreme Court judgment of 19 May 1995, which had become final.

The applicant appealed against the judgment before the Riga Regional Court. In a judgment of 15 May 2000 following adversarial proceedings, the regional court also found against the applicant, endorsing in substance the reasoning of the court of first instance. The applicant then lodged an appeal on points of law with the Senate of the Supreme Court. In a final order of 10 July 2000 the Senate, in a preparatory sitting (rīcības sēde) held in private, declared the appeal inadmissible for lack of arguable legal grounds.

Meanwhile, on 6 July 2000, the applicant made a third application for regularisation to the Directorate, requesting it to grant her “the right to reside legally in Latvia”. Her application was rejected.

In a letter of 22 September 2000 to the Interior Ministry, the director of the National Human Rights Bureau (Valsts cilvēktiesību birojs) expressed support for the applicant’s cause and requested the Ministry to regularise her stay in Latvia. The letter received no reply.

In August 2001 the head of the Directorate decided to reopen the file concerning the applicant’s daughter, who was then seventeen. He noted in particular that, on 1 July 1992, she had been registered at her father’s address as a “permanently resident non-citizen” of Latvia, and that she therefore fulfilled the requirements of section 1 of the Non-Citizens Act. Accordingly, in October 2001, the Directorate issued the applicant’s daughter with a passport based on the status of “permanently resident noncitizen”, re-entered her name in the register of residents and gave her a new personal identification code.

By Decree no. 820 of the Cabinet of Ministers of 24 December 2003, the applicant’s daughter became a naturalised Latvian citizen (paragraph 1.105 of the Decree).

On 7 January 2005 the Directorate sent a letter to the applicant which read as follows:

“ ... The Directorate ... has taken note of the final decision of the European Court of Human Rights (First Section) ... on the admissibility of the application in the case of Natella Kaftailova v. Latvia.

The Directorate has explored the options currently available under Latvian legislation which might make it possible to regularise your stay in Latvia; it therefore invites you to take this opportunity to have your legal status in Latvia determined and to obtain a residence permit.

On 9 January 1995 a deportation order was served on you under section 38 of the [Aliens] Act, requesting you to leave Latvian territory by 15 January 1995. The deportation order has not been enforced, nor have any measures been taken with a view to its enforcement. Section 360(4) of the Administrative Procedure Act ... currently in force stipulates that ‘an administrative act may not be enforced if more than three years have elapsed since it became enforceable’... In view of the fact that, under the previously existing rules, enforcement of the deportation order was not stayed, and that you did not comply with it, enforcement is no longer possible.

The Status of Stateless Persons Act, in force prior to 2 March [2004], made no provision for granting stateless person status to persons illegally resident in Latvia. Accordingly, the Directorate did not invite you to submit the papers required to obtain that status.

The Stateless Persons Act which entered into force on 2 March 2004 replaced the Status of Stateless Persons Act... The conditions for the granting of stateless person status laid down by the [new] Act differ from those contained in the [old] Act.

Under Section 2(1) of the Stateless Persons Act, a person may be granted stateless person status ... if no other State has recognised him or her as a national in accordance with its own laws. Under section 3(1) of the Act, persons not covered by the Convention of 28 September 1954 relating to the Status of Stateless Persons cannot be recognised as stateless persons...

In accordance with section 4(1) of the Stateless Persons Act, in order to be recognised as a stateless person, the individual concerned must submit to the Directorate:

(1) a [written] application;

(2) an identity document;

(3) a document issued by a competent body in the foreign State, to be determined by the Directorate, certifying that the person concerned is not a national of that State and is not guaranteed nationality of that State, or a document certifying the impossibility of obtaining such a document.

In view of the fact that you were born in Georgia and are of Georgian ethnic origin and the fact that, prior to your arrival in Latvia, you had been living in Russia..., it is essential ... to ascertain that you are not recognised as a national of the Republic of Georgia or of the Russian Federation or guaranteed the right to nationality of those countries in accordance with their laws. Accordingly, to enable us to take a decision granting you stateless person status, you must provide [us] with a document issued by the competent bodies in the Republic of Georgia and the Russian Federation to the effect that you are not a national of those countries and that you are not guaranteed the right to such nationality, or with a document certifying the impossibility of obtaining such a document.

Under section 6(1) of the Stateless Persons Act, stateless persons must reside in Latvia in accordance with the rules laid down by the Immigration Act, that is to say, on the basis of a residence permit or, at least, a visa.

Having considered the circumstances of your case, we are prepared, once we have determined your legal status and obtained the necessary documentation..., to address an opinion to the Minister of the Interior proposing that you be issued with a permanent residence permit, in accordance with section 24(2) of the Immigration Act...”

The Directorate then listed the documents to be submitted by the applicant to her local department and indicated the usual period of validity of each document. The letter went on as follows:

“Once you have been recognised as a stateless person and been issued with a residence permit..., your personal data will be entered in the register of residents and you will receive a personal identification code.

In the Directorate’s view, this is the only basis on which you can obtain a permanent residence permit, given the circumstances of your case... That being so, the Directorate, in addressing its opinion to the Minister of the Interior, will draw the Minister’s attention to the fact that issuing you with a permanent residence permit would be compatible with the aspects [sic] of a democratic society, while maintaining the fair balance to be struck between the restriction of individual rights and the benefits to society of that restriction. The aim is to ensure that you have the right to conduct your private and family life without hindrance.

The Directorate would draw your attention to the fact that no one can be recognised as a stateless person or obtain a residence permit on a unilateral basis. You must therefore express a personal interest by making an application to that effect. In the view of the Directorate, ... the solution outlined above corresponds to your interests, would remove the threat of deportation in the future and would enable you to exercise your right to private and family life without any great restrictions; moreover, in accordance with the Nationality Act, you could aspire to Latvian citizenship by naturalisation.

In view of the above, we invite you to contact the Directorate and submit the necessary documents to it, so that ... your legal status can be determined and ... the Minister of the Interior can take a decision on the issuing of a permanent residence permit. ...”

At the end of the letter the Directorate gave the telephone numbers of the officials to whom the applicant should address any further queries concerning the regularisation of her status.

By Decree no. 75 of 2 February 2005, the Cabinet of Ministers instructed the Minister of the Interior to issue the applicant with a permanent residence permit “once the documents required to make such an application have been received” (Article 1). At the same time the Minister of Foreign Affairs was instructed to have the Court’s decision of 21 October 2004 on the admissibility of the present application translated into Latvian, and to have the translation published in the Official Gazette (Article 3).

It is clear from the applicant’s explanations that she did not take the steps indicated by the Directorate and that she continues to reside illegally in Latvia.

Latvian legislation on nationality and immigration distinguishes several categories of persons, each with a specific status.

(a) Latvian citizens (Latvijas Republikas pilsoņi), whose legal status is governed by the Citizenship Act (Pilsonības likums);

(b) “permanently resident non-citizens” (nepilsoņi) – that is, citizens of the former USSR who lost their Soviet citizenship following the break-up of the USSR in 1991, but have not subsequently obtained any other nationality – who are governed by the NonCitizens Act (see paragraph 35 below);

(c) asylum-seekers and refugees, whose status is governed by the Asylum Act of 7 March 2002 (Patvēruma likums);

(d) “stateless persons” (bezvalstnieki) in the narrow and specific sense of the term. Prior to 2 March 2004 their status was governed by the Status of Stateless Persons Act, read in conjunction with the Aliens Act (see paragraphs 36 and 39 below) and, after 1 May 2003, with the Immigration Act (see paragraph 41 below). Since 2 March 2004 their status has been governed by the new Stateless Persons Act (see paragraph 38 below), also read in conjunction with the Immigration Act;

(e) “aliens” in the broad sense of the term (ārzemnieki), including foreign nationals (ārvalstnieki) and stateless persons (bezvalstnieki) falling solely within the ambit of the Aliens Act (before 1 May 2003), and the Immigration Act (after that date).

The relevant provisions of the Act of 12 April 1995 on the Status of Former USSR Citizens without Latvian or other Citizenship (Likums “Par to bijušo PSRS pilsoņu statusu, kuriem nav Latvijas vai citas valsts pilsonības”) read as follows:

[Version in force before 25 September 1998]: “This Act governs citizens of the former USSR resident in Latvia ..., who were resident within Latvian territory prior to 1 July 1992 and whose residence is registered there, regardless of the status of their housing, and who are not citizens of Latvia or any other State; it also governs the minor children of such persons who are not citizens of Latvia or any other State.”

[Version in force since 25 September 1998]: “The persons governed by this Act – ‘non-citizens’ – shall be citizens of the former USSR who are resident in Latvia ..., and their children, who satisfy all the following criteria:

(1) on 1 July 1992 they were registered as being resident within the territory of Latvia, regardless of the status of their housing; or their last registered place of residence on 1 July 1992 was in the Republic of Latvia; or a court has established that before the above-mentioned date they had been resident within Latvian territory for not less than ten years;

(2) they do not have Latvian citizenship;

(3) they are not and have not been citizens of any other State. ...”

“... [N]on-citizens shall have the right:

The specific status of “stateless person” (bezvalstnieks) was established by the Status of Stateless Persons Act (Likums “Par bezvalstnieka statusu Latvijas Republikā”) of 18 February 1999. The Act remained in force until 2 March 2004, when it was replaced by the Stateless Persons Act (Bezvalstnieku likums) of 29 January 2004.

Section 2(1) of the 1999 Act read as follows:

“The status of stateless person may be granted to persons whose status is not defined either by the Act on the Status of Former USSR Citizens without Latvian or other Citizenship or by the Asylum Act , provided they

(2) are legally resident in Latvia.”

The relevant provisions of the new Stateless Persons Act read as follows:

“In the Republic of Latvia, an individual may be recognised as a stateless person if no other State has recognised him or her as a national in accordance with its own laws.”

“1. In the Republic of Latvia, an individual not falling within the scope of the Convention of 28 September 1954 relating to the Status of Stateless Persons may not be recognised as a stateless person.

An individual whose status is governed by the [Non-Citizens] Act may not be recognised as a stateless person.”

“1. In order to be recognised as a stateless person, the individual concerned must submit to the [Directorate]:

(1) a [written] application;

(2) an identity document;

Where the individual concerned is unable to produce one of the documents referred to in points 2 or 3 of the first paragraph, an official instructed by the head of the Directorate shall decide whether or not to grant him or her the status of stateless person. The decision shall be taken on the basis of information available to the Directorate supported by documentary evidence.”

The person [concerned] may appeal to the head of the Directorate against the decision [concerning the granting of stateless person status].

The person [concerned] may lodge an application with the courts challenging the decision by the head of the Directorate.”

“1. The stateless person shall reside in the Republic of Latvia in accordance with the provisions of the Immigration Act.”

The relevant provisions of the Aliens and Stateless Persons (Entry and Residence) Act of 9 June 1992 (Likums “Par ārvalstnieku un bezvalstnieku ieceļošanu un uzturēšanos Latvijas Republikā), in force prior to 1 May 2003, read as follows:

“Any foreigner or stateless person shall be entitled to stay in the Republic of Latvia for more than three months [version in force since 25 May 1999: ‘more than ninety days in the course of one half of a calendar year’], provided that he or she has obtained a residence permit in accordance with the provisions of this Act. ...”

“Aliens or stateless persons may be issued with...

(1) a temporary residence permit;

(2) a permanent residence permit. ...”

“Permanent residence permits may be obtained by aliens who, on 1 July 1992, were officially registered as being resident for an indefinite period within the Republic of Latvia if, at the time of applying for a permanent residence permit, they are officially registered as being resident within the Republic of Latvia and are entered in the register of residents.”

“No residence permit shall be issued to a person who

(5) was deported from Latvia during the five years preceding the application;

(6) has knowingly supplied false information in order to obtain such a permit;

(7) is in possession of false or invalid identity or immigration documents;

“The head of the Directorate or of the regional office of the Directorate shall issue a deportation order...

(2) if the alien or stateless person ... is in the country without a valid visa or residence permit; ...”

“The individual concerned shall leave the territory of Latvia within seven days after the deportation order has been served on him or her, provided that no appeal is lodged against the order in accordance with this section.

Persons in respect of whom a deportation order is issued may appeal against it within seven days to the head of the Directorate, who shall extend the residence permit pending consideration of the appeal.

An appeal against the decision of the head of the Directorate shall lie to the court within whose territorial jurisdiction the Directorate’s headquarters are situated, within seven days after the decision has been served.”

The decision of the Supreme Council of the Republic of Latvia of 10 June 1992 on the arrangements for entry into force and application of the Aliens Act gave details of the scope of the Act. In particular, the first paragraph required foreign nationals and stateless persons resident in Latvia on the date of the Act’s entry into force, but with no permanent registration of residence, to apply for a residence permit within one month, failing which they would be served with a deportation order.

Since 1 May 2003 the Aliens Act cited above is no longer in force; it was repealed and replaced by the Immigration Act (Imigrācijas likums) of 31 October 2002. The relevant provisions of the new Act read as follows:

“The present Act uses the following definitions:

an alien [ārzemnieks] – a person who is neither a Latvian citizen nor a “[permanently resident] non-citizen” of Latvia; ...”

“In cases not covered by the present Act, a permanent residence permit shall be granted by the Minister of the Interior, where it accords with the interests of the State.”

“... When the time-limit set down [for submitting an application for a residence permit] has passed, the head of the Directorate may authorise [the person concerned] to submit the [relevant] documents, where such authorisation accords with the interests of the Latvian State, or on grounds of force majeure or humanitarian grounds.”

“1. Within ten days of establishment of the facts detailed in the first and second subparagraphs of the present paragraph, ... the [relevant] official of the Directorate shall take a forcible expulsion decision..., where:

(1) the alien has not left the Republic of Latvia within seven days of receiving the deportation order..., and has not appealed against the order to the head of the Directorate..., or the head of the Directorate has dismissed the appeal;

In the cases referred to in the first subparagraph of paragraph 1 of this section, no appeal shall lie against the forcible expulsion decision...

In the event of a change of circumstances, the head of the Directorate may set aside a forcible expulsion decision.”

Section 360(4) of the Administrative Procedure Act (Administratīvā procesa likums), in force since 1 February 2004, provides:

“An administrative act may not be enforced if more than three years have elapsed since it became enforceable. In calculating the limitation period, any period during which implementation of the administrative act was suspended shall be deducted.”


CASE OF HASHMAN AND HARRUP v. THE UNITED KINGDOM

Not necessary to examine Art. 11;Violation of Art. 10;Costs and expenses award - Convention proceedings

Luzius Wildhaber;Nicolas Bratza;Paul Mahoney;Simon Brown

On 3 March 1993 the applicants blew a hunting horn and engaged in hallooing with the intention of disrupting the activities of the Portman Hunt. A complaint was made to the Gillingham magistrates that the applicants should be required to enter into a recognisance with or without sureties to keep the peace and be of good behaviour pursuant to the Justices of the Peace Act 1361.

The applicants were bound over to keep the peace and be of good behaviour in the sum of 100 pounds sterling for twelve months on 7 September 1993. They appealed to the Crown Court, which heard their appeals on 22 April 1994 at Dorchester.

The Crown Court, comprising a Crown Court judge and two magistrates, found that the applicants had not committed any breach of the peace and that their conduct had not been likely to occasion a breach of the peace. It found the following facts:

“(a) On 3rd March, 1993, Edward Lycett Green, a joint Master of the Portman Hunt, saw the [applicants] in the environs of the Ranston Estate, and heard the sound of a hunting horn being blown from that position. Later, at about 1.15 p.m., he saw the [applicants’] car on Iwerne Hill and again heard the sound of a hunting horn being blown. On that occasion he also heard [the second applicant] hallooing. Some hounds were drawn towards the [applicants], and hunt staff had to be deployed to recover them.

(b) At about 1.45 p.m., a solitary hound ran out of Rolf’s Wood along the Higher Shaftesbury Road. It suddenly, and for no apparent reason, ran across the road and was killed by a lorry travelling in the direction of Blandford Forum.

(c) At about 3.45 p.m., [the first applicant] stated to a police constable that he had been blowing a hunting horn, but nowhere near where the hound was killed. The police officer seized the hunting horn.

(d) Iwerne Hill is about a mile from where the hound was killed, and, at the time of its death, it was travelling away from the hunt and away from Iwerne Hill.

(e) On their own admissions each [applicant] was a hunt saboteur. [The first applicant] admitted that he had blown the horn and [the second applicant] that she shouted at hounds. Their object was to distract hounds from hunting and killing foxes.

(f) An expert, a Mr A. Downes, told us that he had observed hunts for many years and had frequently seen hounds running loose on the road away from the main pack. In his opinion, this caused danger to hounds and to other users of the road.”

On the basis of these facts, the Crown Court was of the following opinion:

“(a) The [applicants’] behaviour had been a deliberate attempt to interfere with the Portman Hunt and to take hounds out of the control of the huntsman and the whippersin.

(b) That in this respect the actions of the [applicants] were unlawful, and had exposed hounds to danger.

(c) That there had been no violence or threats of violence on this occasion, so that it could not be said that any breach of the peace had been committed or threatened.

(d) That the [applicants] would repeat their behaviour unless it were checked by the sanction of a bind over.

(e) That the [applicants’] conduct had been contra bonos mores.

(f) That R. v. Howell [see below] was distinguishable in that it related to the power of arrest for breach of the peace, which could only be exercised if there was violence or the immediate likelihood of violence.

(g) That the power to bind over ‘to keep the peace and be of good behaviour’ was wider than the power of arrest and could be exercised whenever it was proved either that there had been a breach of the peace or that there had been behaviour contra bonos mores, since a breach of the peace is ex hypothesi contra bonos mores, and the words ‘to keep the peace’ added nothing to what was required of the defendant by the words ‘to be of good behaviour’.”

The court noted that neither the Law Commission’s report on binding over nor the European Convention was part of domestic law.

The Crown Court judge agreed to state a case to the High Court, but legal aid for the case stated was refused on 5 August 1994. The applicants’ appeals against the decisions were dismissed on 19 September 1994.

Breach of the peace – which does not constitute a criminal offence (R. v. County of London Quarter Sessions Appeals Committee, ex parte Metropolitan Police Commissioner [1948] 1 King’s Bench Reports 670) – is a common-law concept of great antiquity. However, as Lord Justice Watkins, giving judgment in the Court of Appeal in the case of R. v. Howell ([1982] 1 Queen’s Bench Reports 416), remarked in January 1981:

“A comprehensive definition of the term ‘breach of the peace’ has very rarely been formulated …” (p. 426)

He continued:

“We are emboldened to say that there is likely to be a breach of the peace whenever harm is actually done or is likely to be done to a person or in his presence to his property or a person is in fear of being so harmed through an assault, an affray, a riot, unlawful assembly or other disturbance.” (p. 427)

In a subsequent case before the Divisional Court (Percy v. Director of Public Prosecutions [1995] 1 Weekly Law Reports 1382), Mr Justice Collins followed Howell in holding that there must be a risk of violence before there could be a breach of the peace. However, it was not essential that the violence be perpetrated by the defendant, as long as it was established that the natural consequence of his behaviour would be to provoke violence in others:

“The conduct in question does not itself have to be disorderly or a breach of the criminal law. It is sufficient if its natural consequence would, if persisted in, be to provoke others to violence, and so some actual danger to the peace is established.” (p. 1392)

In Nicol and Selvanayagam v. Director of Public Prosecutions ([1996] 160 Justice of the Peace Reports 155), Lord Justice Simon Brown stated:

“… the court would surely not find a [breach of the peace] proved if any violence likely to have been provoked on the part of others would be not merely unlawful but wholly unreasonable – as of course, it would be if the defendant’s conduct was not merely lawful but such as in no material way interfered with the other’s rights. A fortiori, if the defendant was properly exercising his own basic rights, whether of assembly, demonstration or free speech.” (p. 163)

Behaviour contra bonos mores has been described as “conduct which has the property of being wrong rather than right in the judgment of the majority of contemporary fellow citizens” (per Lord Justice Glidewell in Hughes v. Holley [1988] 86 Criminal Appeal Reports 130).

In R. v. Sandbach, ex parte Williams ([1935] 2 King’s Bench Reports 192) the Divisional Court rejected the view that a person could not be bound over to be of good behaviour when there was no reason to apprehend a breach of the peace. As in the case of binding over to keep the peace, there had to be some reason to believe that there might be a repetition of the conduct complained of before an order to be of good behaviour could be made.

Magistrates have powers to “bind over” under the Magistrates’ Courts Act 1980 (“the 1980 Act”), under common law and under the Justices of the Peace Act 1361 (“the 1361 Act”).

A binding-over order requires the person bound over to enter into a “recognisance”, or undertaking secured by a sum of money fixed by the court, to keep the peace or be of good behaviour for a specified period of time. If he or she refuses to consent to the order, the court may commit him or her to prison, for up to six months in the case of an order made under the 1980 Act or for an unlimited period in respect of orders made under the 1361 Act or common law. If an order is made but breached within the specified time period, the person bound over forfeits the sum of the recognisance. A binding-over order is not a criminal conviction (R. v. County of London Quarter Sessions, ex parte Metropolitan Police Commissioner [1948] 1 King’s Bench Reports 670).

Section 115 of the 1980 Act provides:

“(1) The power of a magistrates’ court on the complaint of any person to adjudge any other person to enter into a recognisance, with or without sureties, to keep the peace or to be of good behaviour towards the complainant shall be exercised by order on complaint.

(3) If any person ordered by a magistrates’ court under subsection (1) above to enter into a recognisance, with or without sureties, to keep the peace or to be of good behaviour fails to comply with the order, the court may commit him to custody for a period not exceeding 6 months or until he sooner complies with the order.”

In addition to the statutory procedure, magistrates have powers to bind over at common law and under the 1361 Act. These powers allow magistrates, at any stage in proceedings before them, to bind over any participant in the proceedings if they consider that the conduct of the person concerned is such that there might be a breach of the peace or that his or her behaviour has been contra bonos mores. It is not open to the justices to attach specific conditions to a binding-over order (Ayu [1959] 43 Criminal Appeal Reports 31; Goodlad v. Chief Constable of South Yorkshire [1979] Criminal Law Review 51).

An order of the magistrates to require a person to enter into a recognisance to keep the peace or to be of good behaviour can be appealed either to the High Court or the Crown Court. An appeal to the High Court is limited to questions of law, and proceeds by way of “case stated”. An appeal to the Crown Court, under the Magistrates’ Courts (Appeals from Binding-Over Orders) Act 1956, section 1, proceeds as a rehearing of all issues of fact and law.

In response to a request by the Lord Chancellor to examine binding-over powers, the Law Commission (the statutory law reform body for England and Wales) published in February 1994 its report entitled “Binding Over”, in which it found that:

“4.34 We regard reliance on contra bonos mores as certainly, and breach of the peace as very arguably, contrary to elementary notions of what is required by the principles of natural justice when they are relied on as definitional grounds justifying the making of a binding-over order. Because an order binding someone to be of good behaviour is made in such wide terms, it fails to give sufficient indication to the person bound over of the conduct which he or she must avoid in order to be safe from coercive sanctions …

6.27 We are satisfied that there are substantial objections of principle to the retention of binding over to keep the peace or to be of good behaviour. These objections are, in summary, that the conduct which can be the ground for a bindingover order is too vaguely defined; that binding-over orders when made are in terms which are too vague and are therefore potentially oppressive; that the power to imprison someone if he or she refuses to consent to be bound over is anomalous; that orders which restrain a subject’s freedom can be made without the discharge of the criminal, or indeed any clearly defined, burden of proof; and that witnesses, complainants or even acquitted defendants can be bound over without adequate prior information of any charge or complaint against them.” (Law Commission Report no. 222)

The Law Commission recommended abolition of the power to bind over.


Remainder inadmissible;No violation of Art. 3 (substantive aspect)

Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Ján Šikuta;Josep Casadevall;Kristina Pardalos;Nona Tsotsoria

The applicant was born in 1960 and lives in Tbilisi.

On 21 May 2006 the applicant, a former police officer, was arrested on the Georgian-Turkish border on suspicion of smuggling drugs into Georgia. According to the record of the applicant’s body search carried out on the spot, 650 Subutex pills were found in a pocket of his jacket. He signed the record, noting in his own handwriting that he did not object to being searched in the absence of a lawyer. The applicant exercised his right to remain silent at that time, as well as during an examination he underwent as a suspect the following day.

On 23 May 2006 the applicant was charged with trafficking substances analogous to, or precursors of, narcotic drugs (Articles 260 and 262 of the Criminal Code). Questioned on the same day in the presence of his advocate, the applicant agreed to testify. He confessed to the crime, naming his accomplices, including a high-level official of the anti-drug department of the Georgian Ministry of the Interior, who had allegedly been covering up their illicit dealings. Subsequently, the investigation authority arrested the named persons, some of whom confessed to the drug trafficking. Other relevant evidence, including transcripts of taped telephone conversations between some of the suspects, was also added to the criminal file.

On 11 January 2007 the applicant and his accomplices were convicted of the above-mentioned drug offence. During the trial, the applicant retracted his previous self-incriminating statements and claimed innocence, asserting that the police had planted the Subutex in his pocket and that he had never conspired to engage in any illicit drug dealing. The court took note of that retraction and nevertheless observed that the applicant’s new version of events contradicted other findings in the case. Those findings were based, inter alia, on full or partial confessions explicitly made by some of his accomplices during the trial, in the presence of their advocates. In addition, the court analysed the transcripts of the taped telephone conversations, arriving at the conclusion that, despite their coded language, they confirmed the existence of a conspiracy between the applicant and other defendants. The conviction was also confirmed by the statements of certain other witnesses, as well as by the results of searches of the defendants’ homes.

On 9 February 2007 the applicant appealed against the conviction, calling into question the factual findings of the lower court. He also complained that the court had confirmed his conviction only on the basis of the transcripts of the taped conversations, without listening to the actual recordings.

On 12 July 2007 the Tbilisi Court of Appeal, after hearing the applicant and other defendants, some of whom maintained their confessions in exchange for a plea bargain with the prosecution, and having reviewed other case materials, upheld the applicant’s conviction. As regards his complaint about the transcripts of the taped conversations, the appellate court dismissed it, stating that the applicant should have raised it at the first-instance hearing.

The applicant’s appeal on point of law of 10 September 2007, in which he reiterated the arguments that he had made before the appellate court, was dismissed as inadmissible by the Supreme Court of Georgia on 26 February 2008. The applicant was thus sentenced to twenty-one years in prison, which started to run from the day of his arrest on 21 May 2006. He was placed in Rustavi no. 6 prison (“Rustavi Prison”).

According to the applicant’s medical file, he is suffering from glomerulonephritis, nephrosclerosis, chronic renal failure, viral hepatitis C (HCV), chronic bronchitis and arterial hypertension. His renal disorders developed gradually, as a result of a traffic accident in 1998, which caused septicaemia (blood poisoning). Before the applicant was detained he had already been diagnosed with those renal disorders at advanced stages and, according to his medical file, underwent several courses of symptomatic urological treatment.

The prison authority took charge of the applicant’s health problems for the first time on 6 July 2006. Notably, in order to have his state of health assessed, he was taken on that day to the Central Clinic of Tbilisi State Medical University for blood biochemical and urine analysis.

On the basis of the results of those tests, the prison authority then transferred the applicant, on 8 July 2006, from Rustavi Prison to the Medical Establishment of the Ministry of Justice (“the prison hospital”), where he received comprehensive medical treatment over the following four months, until 4 November 2006. This included various laboratory tests and examinations (blood and urine tests, electrocardiography, chest X-ray), repeated consultations with medical specialists, including a nephrologist who had been summoned by the prison authority from a civil hospital (this medical specialist examined the applicant on 18 July and 7 and 18 September 2006), and the prescription of appropriate drugs (antibiotics and antihypertensive and anti-anaemic agents) for nephrological/urological problems, HCV and arterial tension.

In addition, the prison authority, on the advice of a medical panel which had examined the applicant on 24 July 2006, repeatedly approached the medical authorities of various civilian hospitals between August and September 2006, seeking special tests, such as for creatinine and urea levels in the applicant’s blood and an ultrasound scan of his abdominal cavity.

On 4 November 2006 the applicant’s doctor at the prison hospital opined that when his current course of treatment was complete the applicant could be discharged back to Rustavi Prison, where he was to continue receiving medication.

Subsequently, the applicant had a medical check-up between 13 February and 15 March 2007 and another between 18 April and 18 May 2007, at the National Forensic Bureau (“the NFB”). Reports on both examinations confirmed that the applicant’s condition was stable and that he required long-term out-patient treatment under the supervision of a nephrologist, cardiologist and hepatologist.

On 11 August 2007 the applicant was again admitted to the prison hospital, where he remained until 18 August 2007. The in-patient treatment included blood and urine tests, chest X-ray, abdominal ultrasound scan and consultations with a cardiologist. When he was discharged the doctor in charge of the applicant recommended that the patient continue treatment with the relevant drugs on an out-patient basis under the supervision of medical specialists.

On 29 January 2008 the applicant was placed on an emergency basis in the intensive care unit of the prison hospital, with a diagnosis of possible food poisoning; he was also suffering from anuria (non-passage of urine), his condition being described as serious from the nephrological/urological point of view (“the relapse of 29 January 2008”). The applicant’s medical file confirms that comprehensive medical treatment was administered to him there, as a result of which his condition improved (the symptoms of anuria disappeared), and on 5 February 2008 he was transferred from intensive care to the ordinary therapeutic department of the prison hospital.

As disclosed by his medical file, the applicant underwent again, during his second stay in the prison hospital, the relevant medical tests and was examined by various medical specialists, including a nephrologist summoned by the prison authority from a civilian urology hospital (this examination took place on 4 February 2008). The nephrologist prescribed the applicant treatment with twenty different types of antibiotic, hypolipidemic and antihypertensive drugs; the prison hospital immediately provided the applicant with this medication in the necessary dosages.

On 3 April 2008, after several medical specialists, including a nephrologist from a civilian hospital whose assistance had been requested again by the prison authority, had confirmed that the applicant’s condition had stabilised, he was discharged back to Rustavi Prison, where he continued to receive the prescribed medication on an out-patient basis.

At the applicant’s request, experts from the National Forensic Bureau (“the NFB”) conducted additional medical examinations between 15 February and 7 April 2008. Their conclusions (“the medical conclusions of 15 February to 7 April 2008”) disclosed that the applicant’s kidney conditions, which could be qualified as progressive serious disorders, had slightly progressed in comparison to the previous medical examinations; the recommendation was that the applicant should continue treatment under the permanent supervision of a nephrologist.

On 8 June 2008 the Rustavi prison authorities informed the applicant’s advocate that its medical staff did not include a nephrologist. However, the prison undertook that in the event of deterioration of the applicant’s condition he would immediately be transferred to an appropriate medical establishment.

On 22 October 2008 the Court, allowing the applicant’s request, instructed the Government under Rule 39 of the Rules of Court to place the applicant in a medical establishment capable of providing adequate treatment for his various health problems; the Government were further invited to provide the Court with information regarding the capability of the prison hospital in that regard.

On 19 November 2008 the Government, as well as giving an account of the treatment administered to the applicant prior to the relapse of 29 January 2008, also informed the Court that, after the indication of the medical interim measure under Rule 39 of the Rules of Court, the applicant was transferred to the prison hospital on 30 October 2008. As disclosed by the relevant excerpts from his medical file, he received a comprehensive medical examination there, which included numerous laboratory tests (blood, urine, ultrasound-based diagnostic tests of stomach, kidney and heart, chest X-ray and others), repeated consultations with various specialists (including a nephrologist from a civilian hospital who examined the applicant on 20 November 2008) who prescribed him ten types of medication for his renal, cardiac and hepatic conditions.

On 23 June 2009 the Government updated the Court on the treatment provided to the applicant in the prison hospital. The medical file confirmed once again that the applicant had been regularly examined by various specialists, including different nephrologists from civilian hospitals, who had examined the applicant on 12 January, 16 March and 5 June 2009; a cardiologist and infection specialist, who prescribed specific treatment for him; the implementation of that treatment was then supervised on a daily basis by a general practitioner at the prison hospital (“the GP”). According to the GP’s medical log, which closely monitored the fluctuations in applicant’s state of health from the date of his admission to the prison hospital on 30 October until early July 2009, his condition remained stable overall, except for recurrent headache and general weakness. The applicant was treated with thirty-six types of prescribed anti-hypertension, cardiological, hepatoprotective, antiinflammatory, urological, nephrological, antioxidant, beta-adrenoreceptor and sedative medication, as well as with various vitamins. In addition, as disclosed by the medical file, on 8 June 2009 the applicant gave his consent in writing to start receiving anti-HCV treatment with the powerful anti-viral agents Ribovirin and Interferon.

In the light of the above-mentioned information, the Government submitted that they had taken all necessary measures for the protection of the applicant’s health in prison, and asked the Court to lift the interim measure previously indicated on 22 October 2008.

By letters dated 4 August 2009 and 16 April 2010, the applicant objected before the Court to the consultations provided by a nephrologist, stating that they were too infrequent. Notably, referring to the relevant records in his medical file, he complained that between November 2008 and February 2010, he had been examined by that specialist on only seven occasions, with the intervals varying from two to three months. Acknowledging that the prison hospital had started administering antiHCV and other types of drugs, the applicant nevertheless claimed that no adequate treatment had been provided for his kidney problems. Furthermore, certain anti-HCV drugs, such as Interferon, had, he stated, had a deleterious effect on his kidneys. Relying on these arguments, the applicant claimed that only a civilian hospital, where he could benefit, according to the medical conclusions of 15 February to 7 April 2008, from the permanent supervision of a nephrologist, could provide adequate treatment for him.

In support of the above allegations the applicant submitted more recent excerpts from his medical file, giving an account of the treatment provided for him in the prison hospital from December 2009 to March 2010. Those documents disclosed that his overall condition had remained stable during that period. According to the GP’s opinion dated 23 February 2010, given the chronic nature of the applicant’s kidney problems and that his condition was not acute, nor was he experiencing deterioration, there was no need for specific treatment such as haemodialysis at a specialist nephrology hospital. As to his HCV, despite the provided anti-viral medication, there continued to be a virological response to the blood tests conducted (SVR).

On 30 August 2010 the Court, in the light of the additional information provided by the parties, decided to lift the interim measure previously indicated on 22 October 2008.

Despite the fact that the interim measure was lifted, of which both parties were duly informed by the Court on 1 September 2010, the relevant authorities did not remove the applicant from the prison hospital. Thus, at the time of the submission of the Government’s comments of 6 May 2011 (see paragraph 4 above), the applicant was still undergoing, and had been since 30 October 2008, treatment in that hospital.

Pursuant to Article 607 § 1 (a) of the CCP, a court could suspend a prison sentence in view of a convict’s grave state of health, if his or her illness impeded the proper execution of the sentence, pending the convict’s full or partial recovery.

Article 608 of the CCP provided for a possibility of early release by a court on account of a convict’s grave or incurable illness, which should be established by a qualified medical opinion.

Article 207 of the General Administrative Code stated that an individual could sue a State agency for damage under the rules on liability for civil wrongs contained in the Civil Code. Article 413 of the Civil Code entitled an individual to request compensation for non-pecuniary damage caused in respect of damage to his or her health.

Pursuant to Articles 24 and 33(1) of the Code of Administrative Procedure, an individual was entitled to request through a court that a State agency be ordered to undertake a certain action or, to the contrary, to refrain from taking an action, whether by adopting a written administrative act or without it, if such a request was aimed at the protection of the individual’s rights or legitimate interests.

On 1 October 2010 the Prison Code entered into force, abolishing the previous Imprisonment Act of 22 July 1999 (for the relevant provisions of that Act, see Aliev v. Georgia, no. 522/04, § 33, 13 January 2009) and introducing, inter alia, a new and detailed procedure for filing by detainees, both accused and convicted persons, of complaints to and against the prison authority.

Article 24 of this Code, which provided for the right to health care in prison, read as follows:

Article 24 - Right to Health Care

“1. A [detained] accused/convict shall have the right to use all the necessary medical facilities. All types of medical treatment which are permitted in the given establishment should be made accessible to [a detainee]. If so requested, [a detainee] should be entitled to obtain at his or her own expense more expensive or similar medication or other type of medical treatment than those procured by the relevant establishment. In the event of a reasoned request, and with the permission of the Head of the [Prison] Department, [a detainee] may invite a civilian doctor at his or her own expense.

Immediately upon entering an establishment, a [detainee] must undergo a medical examination. The relevant record shall be drawn up and added to the [detainee’s] personal medical file.”

By virtue of Article 96, a detainee, acting either in person or through his lawyer or a representative in law, may submit a written complaint against any action or omission by a staff member of the relevant establishment, a legal decision or any other matter which appears to constitute a breach of a right guaranteed to him or her by the Prison Code. Article 97 specified that, upon being placed in the establishment, a detainee must immediately be informed by the authorities of his or her right to submit such a complaint.

Pursuant to Articles 98 and 99, a complaint should initially be addressed to the hierarchical superior of the prison officer or agency who has allegedly breached the detainee’s right in question or to the Special Preventative Group (this group forms, according to Article 32 of the Prison Code, part of the Georgian Public Defender’s Office and was established in order to monitor allegations of ill-treatment in prison). In order to guarantee that a complaint is drafted in a proper manner, the detainee may solicit the services of a lawyer, including a public lawyer financed by the State. A detainee who does not have a sufficient understanding of the Georgian language shall be assigned an interpreter free of charge.

Article 102 states that a detainee’s complaint must be delivered to the addressee within forty-eight hours.

Article 103 further states that if an ordinary complaint is addressed to the governor of an establishment, he or she shall examine and respond to it within five days, which period may be extended, in exceptional circumstances, up to one month. If a complaint is addressed to the Head of the Prison Department, that authority has ten days to examine it, which period may also be extended, as an exception, up to one month. In any event, the detainee must be duly warned of any extension of the ordinary time-limit.

Pursuant to Article 105, a complaint raising allegations of torture, inhuman or degrading treatment is considered to be an extraordinary complaint which should be examined by the relevant authority “immediately”. In addition to examining it, the governor of the establishment in question, as well as the Special Preventative Group, must be informed of that complaint within twenty-four hours after it has been submitted.

Article 106 requires that the relevant authority’s response to a detainee’s complaint, whether positive or negative, must be duly reasoned; every specific issue raised by the detainee must be fully addressed. If the detainee is not satisfied with that response, he or she may, under Article 107, contest it before a court, initiating the relevant administrativelegal proceedings.

The excerpts from the above-mentioned Report, describing the capacity of the new prison hospital, read as follows:

“99. The Medical establishment for prisoners in Tbilisi (Gldani), located within the perimeter of the Gldani penitentiary complex, represents a great improvement on the Central Prison Hospital visited by the CPT in 2001 and 2004. The delegation gained a globally positive impression of this new facility, inaugurated at the end of 2008 but in fact functioning fully only for a few months. With an official capacity of 258 beds, the establishment was accommodating 231 sick prisoners at the time of the visit. All the patients were men.

There were five wards: surgery, psychiatry, infectious diseases, internal medicine and intensive care/reanimation. Further, there was an admissions unit, an X-ray unit, a dental office, a laboratory, rooms for endoscopy and physiotherapy, and a pharmacy.

The diagnostic equipment was modern and functional, and the establishment offered an adequate range of hospital treatments for prisoners. It was also possible to transfer sick prisoners to other hospital facilities for diagnostic treatments which were not available at the Medical establishment (an average of 5 transfers per week).

Clinical staff were sufficient in numbers (a total of 129 doctors and nurses) and appropriately trained. Further, a number of outside medical consultants (neuropsychiatrist, neurosurgeon, etc.) held periodic surgeries. ...

As regards material conditions in the patients’ rooms, there was adequate access to natural light, artificial lighting and ventilation, and the rooms were in a good state of repair and cleanliness. That said, the rooms were rather cramped (e.g. six prisoners in a room measuring some 20 m², including a sanitary annexe).”


DE PONTE NASCIMENTO v. THE UNITED KINGDOM

The applicant, Jose Manuel de Ponte Nascimento, is a Portuguese national, who was born in 1966, and lives in Madeira. He is represented before the Court by Mr Andrew Christodoulou, a solicitor, and Mr David Williams, counsel, both practising in London. The respondent Government are represented by their agent, Ms J Foakes of the Foreign and Commonwealth Office, London.

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

On 4 June 1994, the applicant was knocked off his bicycle by a car. He started proceedings against the driver of the car on 3 June 1997. The applicant returned to live in Madeira. On 22 October 1997, the Clerkenwell County Court ordered the applicant to file further medical evidence in support of his claim within 28 days, failing which any particulars of injury not substantiated by a medical report would be struck out. Further medical evidence was filed on behalf of the applicant, some within 28 days and some later. The defendant to the proceedings made an application that the particulars of injury be struck out for failure to comply with the order of 22 October 1997. The application was heard on 29 January 1998 by District Judge Southcombe, who struck out the particulars of injury. The practical effect of striking out the particulars of injury was that the applicant could no longer claim general damages or damages for loss of earnings, which represented by far the major part of his claim.

The applicant appealed against the decision of District Judge Southcombe. On 19 June 1998, the appeal was heard by Recorder Knowles. She dismissed the appeal. The applicant applied to the Court of Appeal for leave to appeal.

The hearing began on 15 April 1999 and continued on 22 April 1999. The Court of Appeal reserved its judgment. On 15 June 1999, the Court of Appeal handed down a judgment refusing permission to appeal. Each of the three Lord Justices of Appeal gave a separate judgment.

Sir Iain Glidewell considered that the Recorder had applied the proper test and exercised her discretion correctly, and that permission to appeal should accordingly be refused.

Lord Justice Clarke considered that the District Judge and the Recorder had failed to apply the relevant legal principles correctly, and that permission to appeal should be granted, because otherwise no court would have considered the exercise of its discretion on correct principles.

Lord Justice Chadwick considered that the Recorder had identified the applicable principles but failed to apply them, but that this failure did not raise any question of principle within the terms of either paragraph 20 of the practice direction of 17 November 1998 or paragraph 2.19.1 of the consolidated practice direction of 26 April 1999 (see below). He further considered that the case was not one which for some other reason (practice direction of 17 November 1998), or some other compelling reason (consolidated practice direction of 26 April 1999), should be considered by the Court of Appeal. Lord Justice Chadwick stated at pp. 39-40:

“Personal injury litigation should not be conducted on the basis that the rules peculiar to it can be treated as of no importance. To do so is to put at risk one of the objects which those rules are intended to promote; that is to say, that the medical evidence on which the plaintiff relies can be properly assessed by the defendant at as early a stage as possible. Failure to make early disclosure of the plaintiff’s medical condition puts a fair trial at risk. I can see no basis upon which to hold that justice demands that the defendant should suffer the risk that any trial which could now be held would be less than fair. On the contrary, it seems to me that the balance of justice lies in upholding the orders which have been made.”

Lord Justice Chadwick concluded that permission to appeal should be refused. He declined to take a view on the merits which he regarded as finely balanced.

On 17 November 1998, Lord Woolf, Master of the Rolls, issued a practice direction relating, inter alia, to leave to appeal to the Court of Appeal (reported at [1999] 1 Weekly Law Reports 2). Practice Directions do not have formal legal effect but are followed by the judiciary, representing as they do the collective view of senior judges and, in time, the terms of Practice Directions become embodied in decisions of the higher courts, which do have binding effect. Paragraph 10 of the practice direction provided, under the heading “The General Test for Leave”:

“The general rule applied by the Court of Appeal, and thus the relevant basis for first instance courts deciding whether to grant leave, is that leave will be given unless an appeal would have no realistic prospect of success.”

Paragraph 20 of the practice direction contained new guidance, in the following terms (so far as material):

“Where there has already been one unsuccessful appeal to a court ... against the decision being challenged, for example from a District Judge to a Circuit Judge or from a Master to a High Court Judge, and the application is for permission for a further appeal to the Court of Appeal, a more restrictive approach to the test for permission to appeal should be adopted. Permission should be granted only if the case raises an important point of principle or practice or the case is one which for some other compelling reason should be considered by the Court of Appeal.”

On 26 April 1999, the Court of Appeal issued a practice direction consolidating, with some amendments, all of the principal practice directions which applied to proceedings in the Court of Appeal (Civil Division). Paragraphs 10 and 20 of the practice direction of 17 November 1998 were reproduced in similar terms in the consolidated practice direction, with one significant change: in paragraph 20 (new paragraph 2.19.1), the word “important” was omitted from the final sentence.


The applicant, Mr Mark Anthony Norwood, is a United Kingdom national who was born in 1962 and lives in a village near Oswestry, Shropshire. He was represented before the Court by Mr K. Lowry-Mullins, a lawyer practising in London.

The applicant was a Regional Organiser for the British National Party (“BNP”: an extreme right wing political party). Between November 2001 and 9 January 2002 he displayed in the window of his first-floor flat a large poster (60 cm x 38 cm), supplied by the BNP, with a photograph of the Twin Towers in flame, the words “Islam out of Britain – Protect the British People” and a symbol of a crescent and star in a prohibition sign.

The poster was removed by the police following a complaint from a member of the public. The following day a police officer contacted the applicant by telephone and invited him to come to the local police station for an interview. The applicant refused to attend.

The applicant was then charged with an aggravated offence under section 5 of the Public Order Act 1986 (see below), of displaying, with hostility towards a racial or religious group, any writing, sign or other visible representation which is threatening, abusive or insulting, within the sight of a person likely to be caused harassment, alarm or distress by it. The applicant pleaded not guilty and argued, in his defence, that the poster referred to Islamic extremism and was not abusive or insulting, and that to convict him would infringe his right to freedom of expression under Article 10 of the Convention. On 13 December 2002 he was convicted of the offence by District Judge Browning at Oswestry Magistrates' Court, and fined GBP 300.

The applicant appealed to the High Court, which dismissed his appeal on 3 July 2003. Lord Justice Auld held that the poster was “a public expression of attack on all Muslims in this country, urging all who might read it that followers of the Islamic religion here should be removed from it and warning that their presence here was a threat or a danger to the British people”.

The applicant was charged with the offence of causing alarm or distress contrary to section 5(1)(b) of the Public Order Act 1986, aggravated in the manner provided by sections 28 and 31 of the Crime and Disorder Act 1998 (as amended by section 39 of the Anti-terrorism, Crime and Security Act 2001). Section 5 of the 1986 Act provides:

“(1) A person is guilty of an offence if he; ... (b) displays any writing, sign or other visible representation which is threatening, abusive or insulting, within the hearing or sight of a person likely to be caused harassment, alarm or distress thereby.

(2) An offence under this section may be committed in a public or a private place ...

(3) It is a defence for the accused to prove – (a) that he had no reason to believe that there was any person within hearing or sight who was likely to be caused harassment, alarm or distress, or (b) that he was inside a dwelling and had no reason to believe that the words or the behaviour used, or the writing, sign or other visible representation displayed would be heard or seen by a person outside that or any other dwelling, or (c) that his conduct was reasonable”.

The 1986 Act further provides, in section 6(4):

“A person is guilty of an offence under section 5 only if he intends ... the writing, sign or other visible representation to be threatening, abusive or insulting, or is aware that it may be threatening, abusive or insulting ...”

The 1998 Act, as amended, introduced a statutory aggravation to a number of offences, including section 5 of the 1986 Act, carrying with it higher maximum penalties. According to sections 28(1)(b) and 31(1)(c) of the 1998 Act, an offence under section 5 of the 1986 Act is “racially or religiously aggravated” if it is “motivated (wholly or partly) by hostility towards members of a racial or religious group based on their membership of that group”.


Violation of Article 8 - Right to respect for private and family life

David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza

The applicant was born in 1966 and lives in Lubiąż.

On 6 January 2006 the applicant was remanded in custody. The grounds for this decision are unknown, since the applicant has not produced a copy of the order.

On 7 November 2006 the Swiebodzin District Court (Sąd Rejonowy) extended the applicant’s detention. On the same day the court decided to discontinue the criminal proceedings against him. The court held that the applicant at the time of the commission of the offence had been incapable of recognising its significance or controlling his conduct because of his mental illness. The applicant had been diagnosed with schizophrenia (paranoid subtype).

On 1 October 2007 the applicant was placed in a mental hospital.

On 22 April 2008 the Świebodzin District Court decided to extend the applicant’s detention at the mental hospital. The court held that he was still suffering from severe schizophrenia.

On 22 July and 20 November 2008 the Świebodzin District Court decided to discontinue the criminal proceedings against the applicant due to his mental illness. The applicant’s state of health was confirmed by a medical certificate of 1 October 2008.

In the light of the applicant’s submissions, it is impossible to establish the facts relating to his detention.

On 4 December 2006 the Court received a letter from the applicant dated 23 November 2006. The letter was sent while the applicant was detained in the Szamotuły Remand Centre (Areszt Śledczy). It bears the following stamp: “District Court in Świebodzin, censored” (Sąd Rejonowy Świebodzin, Cenzurowano), a handwritten date: “28.11.06” and an illegible signature.

The relevant domestic law concerning censorship of detainees’ correspondence is set out in the Court’s judgment in the case of Kliza v. Poland, no. 8363/04, §§ 29-34, 6 September 2007.


Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä

The applicants, Ms Barbara Kuderewska and Mr Stanisław Kuderewski, were born in 1957 and 1961 and live in Coquitlam and Vancouver, Canada, respectively. They were represented before the Court by Ms G. Nowicka, a lawyer practising in Ontario, Canada and in Gdańsk, Poland. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs.

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

On 10 October 1968 the Gdańsk Regional National Council gave an expropriation decision and took over a plot of land (no. 98/25 which belonged to the applicants' predecessor in title. Later on, the plot in question was divided into four plots (nos. 219/29, 220/29, 222/29 and 229/29).

On 13 September 1973 the Gdańsk Regional National Council gave an expropriation decision and took over another plot of land (no. 99/25). Later on, that plot was divided into four plots (nos. 132/25, 133/25, 135/25 and 136/25).

On 4 June 1975 the applicants' predecessor in title sold another plot (no. 147/02) to the State Treasury.

On 25 August 1975 the applicants' predecessor in title sold two other plots (nos. 145/25 and 137/25) to the State Treasury.

On a later date the applicants' mother was declared as a legal successor of the abovementioned plots. In 1989 the domestic authorities abandoned the land development plans for which the plots in question had been expropriated.

On 27 June 1990 the applicants' mother lodged a request with the Gdynia Municipality Office for restitution of the plots nos. 137/25 and 145/25. On a later unknown date the case was transferred to the Gdynia District Office. On 10 September 1992 the applicants' mother repeated her request for restitution in respect of all plots which had been expropriated in the 1960s and 1970s.

On 28 August 1993 the Head of the Gdynia District Office granted her request in respect of the plot no. 145/25.

On 17 January 1997 the Head of the Gdynia District Office refused her request in respect of the plots nos. 98/25, 147/02 and 99/25. On 11 December 1997 the Gdańsk Governor upheld this decision. On 23 March 2000 the Supreme Administrative Court quashed both decisions in respect of the plot no. 99/25 and dismissed the remainder of her appeal (in respect of the plots nos. 98/25 and 147/02).

On 28 June 2000, after the delivery of the judgment of the Supreme Administrative Court, the applicants' mother repeated her request for recovery of her plot no. 99/25 (at that time nos. 132/25, 133/25, 135/25 and 136/25).

On 14 August 2001 the Gdynia Mayor gave a decision whereby it divided the plot no. 135/25 into two separate plots (nos. 251/25 and 252/25). On 19 December 2001 the Gdynia Mayor held an administrative hearing in respect of the plots nos. 133/25 and 135/25.

On 18 September 2003 the applicants' mother lodged a complaint with the Gdańsk Governor about inactivity on the part of the Gdynia Mayor. On 3 December 2003 the Gdańsk Governor dismissed her complaint finding that the Gdynia Mayor had properly informed her in July 2003 about the delay in the proceedings caused by difficulties in appointing an expert with a view to estimating the value of the plots. On 7 December 2004 the applicants' mother withdrew her complaint to the Supreme Administrative Court about the inactivity of the administrative authorities.

On 30 November 2004 the Gdańsk Governor disqualified the Gdynia Mayor from dealing with the case and transferred it to the Gdańsk Mayor.

On 12 September 2005 the applicants' mother lodged a complaint with the Gdańsk Regional Administrative Court about inactivity on the part of the Gdańsk Mayor. On 1 December 2005 the court declared her complaint inadmissible since had failed to lodge, first, a hierarchical complaint.

On 29 September 2005 the Gdańsk Mayor informed the applicants' mother about further delay in the proceedings and that they would end in October 2005.

On 8 February 2006 the applicants' mother lodged a complaint with the Gdańsk Governor about inactivity on the part of the Gdańsk Mayor. In reply, on 21 March 2006 the Gdańsk Governor ordered that a decision should be given within 30 days.

On 9 March 2006 the Gdańsk Mayor stayed the proceedings in respect of the plots nos.133/25, 251/25 and 252/25. On 24 April 2006 the Gdańsk Governor quashed the abovementioned decision.

On 21 March 2006 the Gdańsk Governor ordered the Gdańsk Mayor to issue a decision on the merits within one month from the date of his decision.

On 12 October 2006 the Gdańsk Mayor decided to restore the plots nos. 133/25 and 136/25 to the applicants' mother and refused the request in respect of the plot no. 252/25. On 5 December 2006 the Gdańsk Governor quashed the abovementioned decision and remitted the case.

On 9 March 2007 the applicants' mother lodged a complaint with the Gdańsk Governor about inactivity on the part of the Gdańsk Mayor. On 23 March 2007 the Gdańsk Governor dismissed her complaint, finding no inactivity on the Mayor's part.

The applicants' mother died in April 2007. By a letter of 9 May 2007 the first applicant informed the Gdańsk Mayor about the applicants' intention to continue the proceedings.

On 31 July 2007 the first applicant was requested to submit an official copy of the court's decision (“odpis”) declaring that the applicants were legal successors of their mother.

On 11 August 2007 the applicants submitted to the Gdańsk Mayor a photocopy of the Gdynia District Court's decision of 13 April 2007 declaring them their mother's legal successors and a photocopy of a power of authority to act on her behalf which the first applicant had given to Ms J.W. on 9 May 2007.

On 15 August 2007 Ms J.W. requested the Gdańsk Mayor to enforce the judgment of the Supreme Administrative Court of 23 March 2000. There was no reply to that letter.

On 28 May 2009 the Gdańsk Mayor informed Ms J.W. that the photocopies submitted to the case file could not be treated as evidence. He referred to the case-law of the Supreme Administrative Court, according to which documents submitted merely in photocopy form could not be regarded as having probative value. She was also informed that it was possible to show the originals to the administrative authority and that they would be certified on the spot. A copy of that letter was also sent to the applicants.

The relevant domestic law concerning inactivity on the part of administrative authorities is set out in Grabiński v. Poland, no. 43702/02, §§ 60-65, 17 October 2006.