CASE OF CARSON AND OTHERS v. THE UNITED KINGDOM

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

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

Ms Carson was born in 1931. She spent most of her working life in the United Kingdom, paying National Insurance contributions (NICs) in full, before emigrating to South Africa in 1989. From 1989 to 1999 she paid further NICs on a voluntary basis (see paragraph 37 below).

In 2000 she became eligible for a basic State pension of 67.50 pounds sterling (GBP) per week. Her pension has remained fixed at this rate since 2000. Had her pension benefited from uprating in line with inflation, it would now be worth GBP 95.25 per week (see paragraphs 41-42 below).

Ms Carson brought domestic proceedings challenging the refusal to uprate her pension (see paragraphs 25-36 below).

Mr Jackson was born in 1922. He spent fifty years working in the United Kingdom, paying NICs in full. He emigrated to Canada on his retirement in 1986 and became eligible for a State pension in 1987. His basic State pension was then GBP 39.50 per week, and it has remained fixed at that level since 1987. Had his State pension benefited from uprating since 1987 it would now be worth GBP 95.25 per week.

Mrs Stewart was born in 1931. She spent fifteen years working in the United Kingdom, paying NICs in full, before emigrating to Canada in 1964. She became eligible for a reduced State pension in 1991. Her basic State pension was then GBP 15.48 per week, and it has remained fixed at that level since 1991.

Mrs Kendall was born in 1913. She spent forty-five years working in the United Kingdom, paying NICs in full, before retiring in 1976. She became eligible for a State pension in 1973, and emigrated to Canada in 1986, at which point her State pension had increased to GBP 38.70 per week. It has remained fixed at that level, whereas the current uprated pension is worth GBP 95.25 (see paragraph 39 below).

Mr Dean was born in 1923. He spent fifty-one years working in the United Kingdom, paying NICs in full, before retiring in 1991. He became eligible for a State pension in 1988, and emigrated to Canada in 1994, when his weekly State pension was GBP 57.60. It has remained fixed at that level since 1994. Had it benefited from uprating, it would now be worth approximately GBP 95.25 per week.

Mr Buchanan was born in 1924. He spent forty-seven years working in the United Kingdom, paying NICs in full, before emigrating to Canada in 1985. He became eligible for a State pension in 1989. His basic State pension was then GBP 41.15 per week, and it has remained fixed at that level since 1989. Had his State pension benefited from uprating, it would now be worth approximately GBP 95.25 per week.

Mr Doyle was born in 1937. He spent forty-two years working in the United Kingdom, paying NICs in full, before retiring in 1995 and emigrating to Canada in 1998. He became eligible for a State pension in 2002. His basic State pension was then GBP 75.50 per week, and it has remained fixed at that level since then. Had it benefited from uprating, it would now be worth approximately GBP 95.25 per week.

Mr Gould was born in 1933. He spent forty-four years working in the United Kingdom, paying NICs in full, before retiring and emigrating to Canada in 1994. He became eligible for a State pension in 1998. His basic State pension was then GBP 64.70 per week, and it has remained fixed at that level since then. Had his State pension benefited from uprating, it would now be worth approximately GBP 95.25 per week.

Mr Dancer was born in 1921. He spent forty-four years working in the United Kingdom, paying NICs in full, before emigrating to Canada in 1981. He became eligible for a State pension in 1986. His basic State pension was then GBP 38.30 per week, and it has remained fixed at that level. Had it benefited from uprating, it would now be worth approximately GBP 95.25 per week.

Mrs Hill was born in Australia in 1940; it appears that she remains an Australian national. She lived and worked in the United Kingdom between 1963 and 1982, paying NICs in full, before returning to Australia in 1982. She made further NICs for the tax years 1992 to 1999, and became eligible for a British State pension in 2000. Her basic State pension was then GBP 38.05 per week. Between August 2002 and December 2004 she spent over half her time in London. During this period, her pension was increased to GBP 58.78 per week, which included an uprating of the basic State pension. When she returned to Australia, her pension returned to the previous level, that is a basic State pension of GBP 38.05 per week. Her pension has remained at this level subsequently.

Mr Shrubshole was born in 1933. His contribution record in the United Kingdom qualified him for a full basic State pension in 1998. He emigrated to Australia in 2000, at which point his State pension had increased to GBP 67.40 per week. Save for a period of seven weeks when he returned to the United Kingdom (during which time his pension was increased to take into account annual upratings), his State pension has remained fixed at that level since 2000. Had his State pension benefited from uprating, it would now be worth approximately GBP 95.25 per week.

Mr Markiewicz was born in 1924. He spent fifty-one years working in the United Kingdom, paying NICs in full, and became eligible for a State pension in 1989. In 1993 he emigrated to Australia. His basic State pension was then worth GBP 56.10 a week, and it has remained fixed at that level. Had it benefited from uprating, it would now be worth approximately GBP 95.25 per week.

Mrs Godfrey was born in 1934. She spent ten years working in the United Kingdom between 1954 and 1965, paying NICs in full, before emigrating to Australia in 1965. She became eligible for a State pension in 1994. Her basic State pension was then GBP 14.40 per week, and it has remained fixed at that level.

In 2002 Ms Carson brought proceedings by way of judicial review to challenge the failure to uprate her pension, relying on Article 1 of Protocol No. 1 taken alone and in conjunction with Article 14 of the Convention.

In a judgment dated 22 May 2002 (R (Carson) v. Secretary of State for Work and Pensions [2002] EWHC 978 (Admin)), the first-instance judge, Stanley Burnton J, dismissed Ms Carson’s application for judicial review.

Applying the principles he drew from the case-law of the Court, the judge found that the pecuniary right that fell to be protected by Article 1 of Protocol No. 1 had to be defined by the domestic legislation that created it. He found that, by the operation of the domestic legislation, Ms Carson had never been entitled to an uprated pension, so that there could be no breach of Article 1 of Protocol No. 1 taken in isolation.

The matter nonetheless fell within the ambit of Article 1 of Protocol No. 1 and the judge therefore had to consider whether Ms Carson had suffered discrimination contrary to the provisions of Article 14. The Government initially contended that country of residence was not a prohibited ground of discrimination under Article 14, but this objection was subsequently withdrawn. The judge, however, dismissed Ms Carson’s claim on the ground that she was not in a comparable position to pensioners in countries attracting uprating. The differing economic conditions in each country, including local social security provision and taxation, made it impossible simply to compare the amount in sterling received by pensioners. Moreover, even if the applicant could claim to be in an analogous position to a pensioner in the United Kingdom or a country where uprating was paid subject to a bilateral agreement, the difference in treatment could be justified.

Ms Carson appealed to the Court of Appeal, which dismissed her appeal on 17 June 2003 (R (Carson and Reynolds) v. Secretary of State for Work and Pensions [2003] EWCA Civ 797). For similar reasons to the High Court, the Court of Appeal (Simon Brown, Laws and Rix LJJ) found that, since Article 1 of Protocol No. 1 conferred no right to acquire property, the failure to uprate Ms Carson’s pension gave rise to no violation of that provision taken alone.

As to the complaint under Article 14 in conjunction with Article 1 of Protocol No. 1, the Court of Appeal noted that the Secretary of State accepted that place of residence constituted a “status” for the purposes of the Article. However, it found that the applicant was in a materially different position to those whom she contended were her comparators. In this connection it was significant that “the scheme of the primary legislation is entirely geared to the impact on the pension of price inflation in the United Kingdom”. Laws LJ continued:

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

The Court of Appeal also considered, in the alternative, the question of justification and found that the “true” justification of the refusal to pay the uprate was that Ms Carson and those in her position “had chosen to live in societies, more pointedly economies, outside the United Kingdom where the specific rationale for the uplift may by no means necessarily apply”. The Court of Appeal thus considered the decision to be objectively justified without reference to what they accepted would be the “daunting cost” of extending the uprate to those in Ms Carson’s position. Moreover, the cost implications were “in the context of this case a legitimate factor going in justification for the Secretary of State’s position”, because to accept Ms Carson’s arguments would be to lead to a judicial interference in the political decision as to the deployment of public funds which was not mandated by the Human Rights Act 1998, the jurisprudence of this Court or by a “legal imperative” which was sufficiently pressing to justify confining and circumscribing the elected Government’s macroeconomic policies.

Ms Carson appealed to the House of Lords, relying on Article 1 of Protocol No. 1 read together with Article 14. Her appeal was dismissed on 26 May 2005 by a majority of four to one (R (Carson and Reynolds) v. Secretary of State for Work and Pensions [2005] UKHL 37).

The majority (Lords Nicholls of Birkenhead, Hoffmann, Rodger of Earlsferry and Walker of Gestinghope) accepted that a retirement pension fell within the scope of Article 1 of Protocol No. 1 and that Article 14 was thus applicable. They further assumed that a place of residence was a personal characteristic and amounted to “any other status” within the meaning of Article 14, and was thus a prohibited ground of discrimination. However, because a person could choose where to live, less weighty grounds were required to justify a difference of treatment based on residence than one based on an inherent personal characteristic, such as race or sex.

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

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

“18. The denial of a social security benefit to Ms Carson on the ground that she lives abroad cannot possibly be equated with discrimination on grounds of race or sex. It is not a denial of respect for her as an individual. She was under no obligation to move to South Africa. She did so voluntarily and no doubt for good reasons. But in doing so, she put herself outside the primary scope and purpose of the UK social security system. Social security benefits are part of an intricate and interlocking system of social welfare which exists to ensure certain minimum standards of living for the people of this country. They are an expression of what has been called social solidarity or fraternité; the duty of any community to help those of its members who are in need. But that duty is generally recognised to be national in character. It does not extend to the inhabitants of foreign countries. That is recognised in treaties such as the ILO [International Labour Organization] Social Security (Minimum Standards) Convention 1952 (Article 69) and the European Code of Social Security 1961.

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

The one feature upon which Ms Carson seizes as the basis of her claim to equal treatment (but only in respect of a pension) is that she has paid the same National Insurance contributions. That is really the long and the short of her case. In my opinion, however, concentration on this single feature is an oversimplification of the comparison. The situation of the beneficiaries of UK social security is, to quote the European Court in Van der Mussele v. Belgium (1983) 6 EHRR 163, 180, para. 46, ‘characterised by a corpus of rights and obligations of which it would be artificial to isolate one specific aspect’.

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

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

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

State and private pensions

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

Parliamentary choice

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

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

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

Lord Carswell, dissenting, found that Ms Carson could properly be compared to other contributing pensioners living in the United Kingdom or other countries where their pensions were uprated. He continued:

“How persons spend their income and where they do so are matters for their own choice. Some may choose to live in a country where the cost of living is low or the exchange rate favourable, a course not uncommon in previous generations, which may or may not carry with it disadvantages, but that is a matter for their personal choice. The common factor for purposes of comparison is that all of the pensioners, in whichever country they may reside, have duly paid the contributions required to qualify for their pensions. If some of them are not paid pensions at the same rate as others, that in my opinion constitutes discrimination for the purposes of Article 14 ...”

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

NICs are payable by employees and the self-employed who earn income over a set limit and by employers in respect of employees earning over a set limit. It is also possible for individuals who are not liable to pay compulsory contributions, because for example they are resident outside the United Kingdom, to make voluntary contributions to protect the right to certain social security benefits. The amounts paid by employees and employers depend on income. In the current tax year (2009/10), employees earning between GBP 110 and GBP 844 per week pay 11% of their income, with an additional 12.8% paid by the employer. The basic rate for the self-employed is currently GBP 2.40 per week and the voluntary contributions rate is GBP 12.05 per week.

The social security benefits paid for from NICs include contribution-based jobseeker’s allowance, incapacity benefit (now replaced by employment and support allowance), maternity allowance, widow’s benefit, bereavement benefit, retirement pensions of certain categories, child’s special allowance and guardian’s allowance. These benefits are financed on a “pay as you go” basis from NICs paid in the current year. If necessary, additional funding can be provided from money received in income tax and other forms of taxation, but this has not been necessary since 1998. NICs also partly pay for the cost of the National Health Service.

The basic State pension is, in the current financial year 2009/10, GBP 95.25 per week. To qualify for a State pension, it is necessary to have reached State pension age and to have paid or been credited with (or have a husband, wife or civil partner who has been paid or been credited with) NICs for a sufficient number of “qualifying years”. The State pension age is currently 65 for men and 60 for women. It will increase gradually for women from 2010, so that by 2020 it will be 65 for both sexes. At present, men need 44 qualifying years by the age of 65 to get a full basic State pension and women who reach the age of 60 before 2010 need 39 qualifying years. The Pensions Act 2007 reduced the number of qualifying years needed for a full basic State pension to 30 for people who reach State pension age on or after 6 April 2010. A percentage of the full basic State pension is payable to an individual without the full number of qualifying years. To get the minimum basic State pension (25%) it is normally necessary to have 10 or 11 qualifying years.

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

Under section 150 of the Social Security Administration Act 1992, the Secretary of State is required to make an order each year to increase the basic State pension to maintain its value “in relation to the general level of prices obtaining in Great Britain”.

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

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

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

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

The United Kingdom has reciprocal social security agreements providing for pension uprating with all European Economic Area (EEA) States and with Barbados, Bermuda, Bosnia and Herzegovina, Croatia, the Federal Republic of Yugoslavia, Israel, Jamaica, Japan, Jersey and Guernsey, South Korea, Mauritius, New Zealand, Philippines, Turkey and the United States of America. Residents of the EEA countries and the countries listed above who qualify for a United Kingdom State pension receive the same level of uprating as United Kingdom residents; the uprating is based on the rate of inflation in the United Kingdom and no regard is paid to inflation in the country of residence.

All the above agreements were concluded between 1948 and 1992, and from 1979 onwards the agreements were to fulfil earlier commitments made by the United Kingdom Government. Since June 1996, the Government’s policy has been that future reciprocal agreements should normally be limited to resolving questions of liability for social security contributions. Agreements with Australia, New Zealand and Canada came into force in 1953, 1956 and 1959 respectively, but these did not require payment of uprated pensions. The agreement with Australia was terminated by Australia as from 1 March 2001, because of the refusal of the United Kingdom to pay uprated pensions to its pensioners living in Australia.

During the passage of the Pensions Bill through Parliament in 1995, amendments tabled in both Houses, calling for uprating to be paid to all expatriate pensioners, were defeated by large majorities. According to the Government, it would cost approximately GBP 4 billion (4 thousand million) to pay the backdated claims to uprating of all United Kingdom pensioners resident abroad in “frozen” countries together with an ongoing annual bill of over GBP 500 million (0.79% of the GBP 62.7 billion spent in total by the United Kingdom in 2008/09 on pensions).

Article 69 of the 1952 International Labour Organization’s Social Security (Minimum Standards) Convention (“the 1952 ILO Convention”) provides that a benefit to which a protected person would otherwise be entitled in compliance with the 1952 ILO Convention (including old-age benefit) may be suspended, in whole or in part, by national law as long as the person concerned is absent from the territory of the State concerned. The above provision is echoed in Article 68 of the 1964 European Code of Social Security and Article 74 § 1 (f) of the 1990 European Code of Social Security (Revised).

Part IV of the 1982 ILO Convention concerning the Establishment of an International System for the Maintenance of Rights in Social Security envisages that equal treatment of the nationals of the Contracting Parties in respect of social security rights, including the retention of benefits arising out of social security legislation whatever the movements the persons protected might undertake between Contracting States, may be secured by the conclusion of appropriate bilateral and multilateral agreements. Bilateral agreements are the most utilised method of coordination of social security laws and vary greatly in both personal and material scope. Some bilateral agreements cover only nationals of the Contracting Parties, while others apply to any person who has been covered by the social security systems of at least one of the Contracting Parties. They sometimes cover both contributory and non-contributory benefits; sometimes they are confined to contributory benefits only.

In April 2008 a Council of Europe initiative to draw up a new framework agreement for the coordination of social security schemes within the member States, to enable in particular the export of benefits throughout the Council of Europe region, was abandoned when it became clear that most countries preferred to maintain the present system of bilateral agreements (see CM(2008)71, paragraph 11, 17 April 2008).


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

Having been extradited from Belgium to Italy, Mr Djula Kolompar was released from prison on 27 December 1990; he currently resides in Amsterdam.

On 13 June 1980 the Florence Assize Court sentenced him in absentia to eighteen years’ imprisonment, having convicted him of, inter alia, attempted rape and attempted murder committed on 24 December 1977.

By a judgment of 8 May 1981, which became final a month later, the Florence Assize Court of Appeal, also giving judgment in absentia, reduced the prison sentence to ten years; the accused had been declared untraceable (irreperibile) and then to be evading arrest (latitante).

Pursuant to a Presidential Decree of 1978, the Florence Assize Court of Appeal and the Court of Appeal itself granted the applicant, on 23 November 1981 and 8 March 1982, remission of sentence amounting to a total of a little over two and a half years.

In 1982 Italy requested the Netherlands authorities to extradite the applicant. This request was refused following an unfavourable opinion from the Rotterdam District Court (Arrondissementsrechtbank) of 14 October 1982; the Rotterdam court took the view that the applicant’s right to defend himself had not been respected.

In May 1983 Italy made a similar request to Belgium, where Mr Kolompar was then staying.

On 7 March 1984 the judgment of 8 May 1981 and the warrant for his arrest as a convicted person (ordine di carcerazione di condannato) issued by the principal public prosecutor at the Florence Court of Appeal on 13 March 1982, together with an official Dutch translation of those documents, were served on the applicant by a bailiff in accordance with the Belgian Extradition Act of 15 March 1874 ("the 1874 Act") and the Belgian-Italian extradition treaty of 15 January 1875. The bailiff’s writ stated that the applicant would be detained with a view to his extradition.

On 22 January 1984 Mr Kolompar had been arrested in Belgium on suspicion of aggravated theft and attempted theft committed in that country; the following day an Antwerp investigating judge had remanded him in custody in respect of these charges.

The investigating judge revoked his detention order on 11 April 1984, but the applicant remained in custody in connection with the extradition proceedings (see paragraph 11 above).

On 4 January 1985 the Antwerp Criminal Court sentenced him to one year’s imprisonment for the offences committed in Belgium. This judgment was upheld by the Antwerp Court of Appeal, whose judgment of 25 April 1985 became final a month later.

By a letter of 4 June 1985 the Minister of Justice informed the applicant that, on account of the period that he had spent in detention since 22 January 1984 (see paragraph 12 above), the prison term was to be deemed to have been completed on 20 January 1985.

Following a favourable opinion from the indictments chamber (Kamer van Inbeschuldigingstelling) of the Antwerp Court of Appeal on 24 April 1984, on 2 May the Belgium Minister of Justice authorised Mr Kolompar’s extradition to Italy.

On 29 October 1984 the applicant asked the Minister to reconsider his decision and to stay the execution of the extradition order in the meantime. He invoked the opinion of the Rotterdam District Court of 14 October 1982 (see paragraph 9 above).

On 13 December 1984 he requested the Minister to confirm in writing that he had stated during a meeting with the applicant’s lawyer on 7 December 1984 that he was prepared to grant an application for a stay of execution of the extradition order.

On 17 December 1984 the Minister replied to him that the extradition was a matter for the Italian authorities, who might possibly withdraw their request. He advised the applicant to apply to those authorities without delay in that connection, adding that, if the applicant so requested, he could stay the execution of the extradition order; the duration of such a measure could not however exceed a reasonable time.

By letter of 2 January 1985 Mr Kolompar again asked the Minister of Justice to stay the execution of the extradition decision. In support of his request he provided statements from various witnesses, according to which he had been in Denmark on 24 December 1977, the date of the offences for which he had been convicted in Italy.

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

On 28 March 1985 the Director of the Rome extraditions department replied to the above query in the affirmative. He stressed that if there was any new evidence it could serve as the basis for an application for retrial of the case (Article 553 of the Italian Code of Criminal Procedure).

On 4 April 1985 the Minister sent to the applicant a copy of this letter, notifying him that the extradition procedure would be continued as soon as it was no longer necessary to keep him at the disposal of the Belgian authorities for the offences committed in Belgium (see paragraph 13 above).

On 21 June 1985 Mr Kolompar wrote to the Minister of Justice to ask him to obtain from Interpol’s Copenhagen office information which he had himself unsuccessfully sought from the Danish consulate general in Rotterdam.

As a result the Minister instructed the Antwerp public prosecutor’s office to determine the accuracy of the applicant’s claims concerning his one-time presence in Denmark (see paragraph 17 above).

A message from Interpol-Copenhagen to Interpol-Brussels of 14 August 1985 indicated that the Danish police had questioned the applicant on 12 April 1978 when he had been in custody in Gentofte in connection with alleged forgery, attempted theft and receiving stolen goods. He had stated that he had entered Denmark on 10 April 1978 and that it was the first time that he had visited the country. In June 1978 his wife had affirmed that she had herself arrived in the country on 23 May 1978 and that her family had lived for a long time near Rome. However, another Yugoslavian national, probably residing in the Netherlands, had maintained in May 1978 that the couple were living in Italy at the time and that the applicant had visited him on several occasions. A Danish police- officer claimed to remember Mr Kolompar but could not certify that he had seen him on 24 December 1977.

The text of the message was transmitted to the Antwerp criminal police on 16 August 1985; on 17 September 1985 the principal public prosecutor’s office of that town sent to the Minister of Justice a report on the information obtained from Interpol-Copenhagen.

In the meantime Mr Kolompar, having been advised orally that his extradition could take place on 25 June 1985, submitted an application for his release to the committals chamber (Raadkamer) of the Antwerp First-Instance Court on 15 June, founded essentially on the alleged unlawfulness of such a measure.

By an order of 21 June the committals chamber declared the application inadmissible; the applicant appealed immediately, relying on Articles 3, 5 and 6 para. 1 (art. 3, art. 5, art. 6-1) of the Convention. In addition, he requested the Minister of Justice, again on 21 June, to stay the execution of the extradition order pending a final decision on his application of 15 June. On 24 June the Minister sent by telex instructions to this effect to the principal public prosecutor’s office in Antwerp. The applicant’s lawyer was notified of this by telephone.

On 5 July 1985 the indictments chamber of the Antwerp Court of Appeal confirmed the order of 21 June 1985 on the ground, inter alia, that it was not empowered to order the applicant’s release. It noted that the fourth subsection of section 5 of the 1874 Act, which provided for the possibility of applying to the investigating authorities for release, ceased to apply once the detainee had been placed at the disposal of the Government with a view to extradition. It added that the provisions of the Convention cited by Mr Kolompar did not in themselves confer on it jurisdiction to rule on the matter.

On 8 October 1985 the Court of Cassation dismissed the applicant’s appeal filed on 8 July. It found that no grounds had been validly and usefully submitted and took the view that the indictments chamber had complied with the essential procedural requirements or the formalities whose disregard entailed nullity and that its decision was lawful.

On 17 September 1985 the applicant filed an urgent application with the President of the Brussels First-Instance Court seeking an order prohibiting his extradition, which, he contended, would be contrary to Articles 6 para. 1, 3 and 14 (art. 6-1, art. 3, art. 14) of the Convention on account, inter alia, of the incompatibility of the proceedings conducted against him in Italy with the Convention; he requested further his immediate release on the ground that his detention was also unlawful for the reasons which his lawyer had given before the indictments chamber of the Antwerp Court of Appeal on 5 July 1985 (see paragraph 22 above).

By a letter of 4 November 1985 the Minister of Justice drew the attention of the Antwerp principal public prosecutor’s office to the desirability of staying the execution of the extradition order until a final decision had been given on Mr Kolompar’s application.

The Belgian State filed its submissions on 24 December 1985; Mr Kolompar submitted his at a hearing held on 19 March 1986.

On 21 March the President of the Brussels First-Instance Court found that it was not necessary to make an urgent ruling. He noted that under the first paragraph of Article 584 of the Judicial Code he was empowered to give "a provisional ruling where he [recognised] that there was urgency, in all matters except those which are excluded by law from the competence of the courts" and that, according to academic writers and the case-law, this jurisdiction extended to cases of unlawful acts by the authorities (onrechtmatige overheidsdaad). In the present case, however, the contested detention did not represent such an act because it had been lawfully and properly ordered in the context of extradition proceedings in accordance with the Act of 15 March 1874 and the Belgian-Italian extradition treaty of 15 January 1875. As far as the extradition was concerned, the President considered that it was not for him to determine whether the applicant’s conviction by the Florence Assize Court had infringed the Convention. He added that the applicant could, as the Director of the Rome extraditions department had pointed out (see paragraph 19 above), file an application for a retrial if the conditions set out in Article 553 of the Italian Code of Criminal Procedure were satisfied.

After the Belgian State had served this order on Mr Kolompar, the latter filed an appeal against it by a document lodged with the registry of the Brussels Court of Appeal on 12 June 1986. By a letter registered on 19 June he requested that the case be heard at a later date.

The Belgian State filed its submissions on 19 November 1986, but the proceedings remained pending. The Belgian lawyer appointed to represent the applicant had withdrawn his services pending payment of an advance. His client claimed that he was not in a position to pay, but he had not informed the authorities of this and had not requested legal aid.

By a letter from his lawyer, dated 13 September 1987, the applicant informed the Minister of Justice that he no longer opposed his extradition in view of the length of the proceedings instituted both at national and international level, and that he waived his right to rely on the undertaking not to hand him over to Italy pending the outcome of the appeals lodged in Belgium.

Twelve days later Mr Kolompar was extradited to Italy. He was released from prison there on 27 December 1990 under an amnesty.


Mr Martin Kraska is a Swiss national and lives in Zurich. He obtained his diploma in medicine in 1981 and has since practised mostly as an assistant doctor (Assistenzarzt), for which activity he does not require an authorisation in the Canton of Zurich.

On 19 October 1982 he received the authorisation to practise independently in the canton. The authorisation was, however, withdrawn by the Health Authority (Gesundheitsdirektion) on 26 April 1983 on the ground that, having moved to another canton, he had not used it.

The applicant lodged an administrative appeal (Rekurs) which the Cantonal Government (Regierungsrat) of Zurich rejected on 17 August 1983 for the following reasons: the possibility that a new authorisation would be granted as soon as he returned to Zurich was not sufficient to confer on the applicant a legally protected interest; in any event the authorisation in question was not of general validity, but related to a specific activity; as it was, Mr Kraska no longer lived in the canton.

From 6 August to 17 September 1984 the applicant worked as an assistant doctor in the emergency service of the District of Zurich Medical Association (Ärztlicher Notfalldienst des Ärzteverbandes des Bezirks Zurich).

On 28 August 1984 he fetched a partially paralysed patient from a private old peoples’ home and took her back to her flat, where he treated her. Shortly afterwards he drew up a bill on an emergency service form for 7,447.80 Swiss francs and sent it to the guardian (gesetzlicher Vertreter) of the patient, who had been placed in guardianship on a temporary basis on 13 September 1984. The sum in question was to be paid directly into the applicant’s post office account and not that of the medical association.

A prosecution was subsequently brought against Mr Kraska for fraud and various infringements of the Zurich Public Health Act 1962; in particular it was alleged that he had treated the patient without being in possession of an authorisation to practise medicine independently as was required under section 7 para. 1 (a) of that Act.

The Zurich District Court (Bezirksgericht) acquitted him on 13 January 1986, finding inter alia that the indictment had not indicated in sufficiently specific terms the medical treatment involved.

In the meantime, on 31 January 1985, the applicant had attempted to obtain a new authorisation. On 11 September 1985 the Zurich Health Authority had refused his request on the ground that he was not "trustworthy" within the meaning of section 8 para. 1 of the Public Health Act.

On 1 October 1986 the Zurich Cantonal Government dismissed the applicant’s appeal. It took the view that he had infringed section 7 para. 1 (a) of the Act by submitting a bill for the treatment in question and that his acquittal by the District Court made no difference in this respect. The Cantonal Government noted in particular that in his bill the applicant had himself classified the treatment as medical acts.

In an appeal (Beschwerde) to the Zurich Administrative Court (Verwaltungsgericht) the applicant again sought the authorisation to practise his profession independently. The court dismissed his appeal on 11 March 1987. It also directed that he should wait until the beginning of 1988 before re-applying.

By a memorial of seventy-three pages Mr Kraska’s lawyer lodged with the Federal Court (Bundesgericht) a public-law appeal (staatsrechtliche Beschwerde), on which five judges deliberated at a public hearing on 22 October 1987 (section 17 para. 1 of the Federal Courts Act). The applicant’s lawyer was present in the courtroom, but was not allowed to address the court. Judge X submitted his report; Judge Y, who did not in fact have the status of co-rapporteur attributed to him at paragraph 68 of the Commission’s opinion, stated that he was unable to accept the conclusions of the report and proposed a solution contrary thereto. During the discussion which followed, a third judge put forward a counter proposal, which was adopted by the majority.

In a letter to his client, the lawyer described the course of the deliberations. According to him, Judge X had proposed that the applicant’s public-law appeal should be allowed in full and that he should be granted the authorisation to practise. Judge Y had stated that he had been irritated by the length of the memorial, of which he had been able to read only thirty or so pages, and had complained that it had not been possible for him to study the file because, owing to an error on the part of the registry, he had not received it until a day before the hearing; he had then called for the dismissal of the appeal, basing his view exclusively on the above-mentioned decisions of 11 September 1985, 1 October 1986 and 11 March 1987 (see paragraphs 11-12 above).

The Federal Court gave judgment on the same day. By four votes to one, that of Judge X, it quashed the decision in so far as it imposed a waiting period on the applicant but dismissed the remainder of the appeal.

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

The Federal Court then noted that, according to its case-law, the right to freedom of commerce and industry, guaranteed by Article 31 of the Federal Constitution, embraced the right to practise medicine on a professional basis.

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

On 8 December 1987 the Health Authority of the Canton of Zurich granted Mr Kraska’s third application for a new authorisation.

On 6 November 1987 Mr Kraska requested the Federal Court to re-examine its judgment of 22 October 1987, complaining that it had given its decision without sufficient knowledge of the file.

His application was dismissed on 14 March 1988 on the ground, inter alia, that there was no legal basis for reopening the proceedings. The Federal Court summarised the contested deliberations as follows:

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

Mr Kraska subsequently filed three other applications for the reopening of the proceedings in the Federal Court; they were dismissed on 5 May and 23 August 1988 and on 6 June 1989.


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

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

The applicants were born in 1959 and 1963 and live in Ljubljana and Trbovlje respectively.

The applicants were detained in Ljubljana prison pending their trial. Mr Mandić was detained in the period between 10 July 2009 and 2 February 2010 and Mr Jović in the period between 5 June 2009 and 13 January 2010.

Ljubljana prison is the third largest prison in Slovenia. It holds sentenced prisoners, remand prisoners and prisoners in administrative detention. It has an official capacity of 128 inmates, which includes 55 places designated for prisoners on remand, who by law must be held in a separate section of the prison. In principle there are two types of cells in which the prisoners are held. Small cells measuring about 7.5 square metres (8.8 square metres including the sanitary annex) and normally containing two sleeping places, and large cells measuring 16.28 square metres (18 square metres including the sanitary annex) and normally containing six sleeping places. The windows of the cells face either west or east. Remand prisoners are held on the ground floor, which contains sixteen small and five large cells, and on the first floor, which has fourteen cells, including three small and eleven large cells. On the second floor, which contains fifteen cells, thirteen of which are large cells, both remand prisoners and sentenced prisoners are held. In the loft, which contains fourteen large cells, only sentenced prisoners seem to be held.

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

The applicants were both detained in cell no. 100, which was situated on the first floor.

The cell, with a ceiling 2.88 metres high, measured 16.28 square metres. It was equipped with three bunk beds with a total of six sleeping places, one large and one small table, six chairs and a set of cupboards for each of the detainees. The cell had four windows measuring 91x57 centimetres each, which the prisoners were free to open and close. According to the applicants, six prisoners were held in the cell in the period of their detention. The Government, however, submitted that the number varied between five and six.

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

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

According to the data provided by the Government, the average temperature in the cells in the late afternoon (5-5.30 p.m.) in the second half of July and August 2009 was approximately 28 oC, exceeding 30 oC on seven days.

The applicants received their meals in their cell.

A sanitary annex, measuring 1.72 square metres, was attached to cell no. 100. It was a room with floor-to-ceiling walls and a door, equipped with one basin with warm and cold water, a toilet, a drain and a mirror. It had a functioning artificial ventilation system.

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

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

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

According to the information supplied by the Government, the applicants were allowed to spend by average two hours and a half out of their cell per day. In particular, they could spend two hours per day in the outside yard, which measured 610 square metres and was not covered by any roof. It was usually used by less than 30 prisoners at a time. In addition, they could use a recreation room, measuring around 17 square metres, twice a week for one hour and also for one hour every third Sunday. This room was equipped with two benches, two exercise mats and some weights. The room had natural light. It was usually used by four prisoners simultaneously.

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

The prison provided the detainees with the possibility to undergo testing for hepatitis B and C and HIV. In 2009 107 detainees were tested. Five were diagnosed with Hepatitis C; other tests were negative, but one person was diagnosed with TBC.

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

Article 18 of the Constitution of the Republic of Slovenia (Ustava Republike Slovenije) reads as follows:

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

The Criminal Procedure Act (Zakon o kazenskem postopku, Official Gazette no. 63/1994 with amendments) regulates, inter alia, the right of a remand prisoner to a two-hour recreation in the open air and the regime of visits, correspondence and other contact with the outside world. It reads, in the relevant part, as follows:

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

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

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

The Regulation on the Execution of Remand (Pravilnik o izvrševanju pripora, Official Gazette no. 36/1999 with amendments) regulates the treatment of remand prisoners in more detail.

Section 2 lays down rules for the allocation of remand prisoners. It states that a person whose detention on remand is ordered by the Ljubljana or Kranj District Court should be placed in Ljubljana prison. Until 27 February 2009, when the Regulation was amended (Official Gazette no. 16/09), it had provided that if the prison in which the remand prisoner was to be placed under the aforementioned rule was overcrowded, the court could order the placement of the remand prisoner in another facility with available space. The prison governors were then under obligation to send information concerning occupancy levels to the presidents of Slovenia’s district courts.

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

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

“(1) Within 48 hours of admittance to prison, every remand prisoner shall be examined by a doctor...

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

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

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

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

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

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

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

The Rules concerning Remand Prisoners in Ljubljana Prison (Hišni red o izvrševanju pripora v zavodu za prestajnje zapora Ljubljana, adopted on 1 January 2005) regulate the regime in the remand section of the prison in more detail. They provide, in so far as relevant:

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

“(1) Remand prisoners shall spend time in the open air in the recreation yard in accordance with the daily schedule. The time spent in the open air shall be organised in groups and shall be in two parts, with each group spending one hour in the morning and one hour in the afternoon in the open air. Sports and recreational activities may be practised in the recreation yard.

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

“Remand prisoners shall shower in shared bathrooms every day.”

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

“(1) Visits to remand prisoners shall take place on days and at times determined in the daily schedule.

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

“(1) Remand prisoners shall be allowed to make telephone calls in telephone booths located in the remand section of the prison. Remand prisoners may call people outside the prison twice a week. The timetable for telephone calls by remand prisoners is determined in the daily schedule. Remand prisoners shall be allowed to use telephone for at least 10 minutes. Requests to make telephone calls shall be made to a guard during the morning roll-call.”

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

Since 1 January 2009, the Health Care and Health Insurance Act (Zakon o zdravstvenem varstvu in zdravstvenem zavarovanju, Official Gazette no. 9/1992 with amendments) provides for sentenced prisoners and prisoners on remand to be insured and therefore included in the public health system. They can exercise their rights under the Act with certain exceptions. For example, they cannot choose their own general practitioner but are, as regards general health care, limited to the medical service provided in the prison establishment. However, the prisoners are also entitled to medical services for which other insured persons have to pay a supplementary insurance.

The relevant provisions of the Criminal Procedure Act read as follows:

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

“(1) The indictment shall be served on an accused person who is at liberty without delay; if the person is on remand it shall be served within 24 hours following its receipt.

(2) If detention is ordered for the accused person by a decision of the panel (Section 212) the accused person shall, at the time of imprisonment, be served an indictment together with a decision ordering detention.

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

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

“An accused person whose detention has been ordered shall be transferred by the prison governor on the basis of an order issued by the president of the panel referred to in the third paragraph of Section 273 of the ZKP. In the prison located in the territory of the court where the main hearing will be held, the remand prisoner shall be placed in a cell for remand prisoners.

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

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

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

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

The Administrative Disputes Act (Zakon o upravnem sporu, Official Gazette no. 105/2006 with amendments) provides in so far as relevant:

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

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

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

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

(5) The court shall decide on the request for the issue of an interim order within 7 (seven) days following the receipt of the request...

(6) The parties may lodge an appeal against the decision referred to in the preceding paragraph within 3 (three) days. The appeal shall not stay the execution of the issued interim order. The competent court shall decide on the appeal against the decision without delay, but no later than 15 days after receiving the appeal.”

(2) A claim may be filed against the violation of human rights and fundamental freedoms under this Act seeking:

– to annul, issue or amend an individual act,

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

– to prohibit further action,

– to undo the consequences of an action.”

“(1) In the administrative dispute referred to in the first paragraph of section 4 of the Act the court may establish the illegality of an act or action, prohibit the continuation of an individual action, decide on the plaintiff’s request for compensation for damage and order whatever is necessary to eliminate the infringement of human rights and fundamental freedoms and restore lawfulness.

(2) The court shall decide without delay on putting an end to the continuation of actions, and on measures aimed at restoring lawfulness if an unlawful action is still ongoing; an appeal is admissible against the decision within three days. The Supreme Court shall adjudicate on the appeal within 3 (three) days following its receipt.

(3) If the court cannot decide without delay in the case referred to in the preceding paragraph, it may issue an interim order of its own motion in accordance with section 32 of this Act.”

According to the Constitutional Court’s decision of 2 April 2009 (no. Up-1618/08), the conditions for admission of a claim to an Administrative Court on the basis of the first paragraph of section 4 of the Administrative Disputes Act are as follows: it must allege a violation of a human right or fundamental freedom; there must be a causal link between the violation and the action of the state body; the result of the action must be unlawful hindrance or limitation of the enjoyment of the human right or fundamental freedom or the prevention of such an enjoyment; there should be no other judicial protection available; and the victim must lodge an action for protection from such unlawful action (ibid., §7).

The relevant parts of the Civil Code (Obligacijski zakonik, Official Gazette, no. 83/2001 with amendments) read as follows:

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

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

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

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

Section 213.d of the Criminal Procedure Act provides:

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

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

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

The relevant extracts from the 2nd General Report by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) (CPT/Inf (92) 3) read as follows:

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

A satisfactory programme of activities (work, education, sport, etc.) is of crucial importance for the well-being of prisoners ... [P]risoners cannot simply be left to languish for weeks, possibly months, locked up in their cells, and this regardless of how good material conditions might be within the cells. The CPT considers that one should aim at ensuring that prisoners in remand establishments are able to spend a reasonable part of the day (8 hours or more) outside their cells, engaged in purposeful activity of a varied nature ...

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

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

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

The CPT’s 7th General Report (CPT/Inf (97) 10) contains the following passage:

“13. As the CPT pointed out in its 2nd General Report, prison overcrowding is an issue of direct relevance to the Committee’s mandate (cf. CPT/Inf (92) 3, paragraph 46).

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

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

The CPT’s 11th General Report (CPT/Inf (2001) 16) provides:

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

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

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

The CPT visited Ljubljana prison in 1995 and 2001. During its most recent visit in 2006 the CPT visited the remand section of Ljubljana prison.

In 1995 the number of prisoners held in the prison was 188 prisoners, which is significantly lower than it is currently (see document CPT/Inf (96) 18). Following the visit in 2001, the following recommendations were made to the Slovenian authorities (CPT/Inf (2002) 36):

“ii. Ljubljana prison

... the CPT reiterates its recommendation that efforts be made to reduce to a maximum of four the number of prisoners held in the cells measuring 18 m², and to accommodate only one prisoner in each cell measuring 8 m².”

Following the visit in 2006, the following observations were made to the Slovenian authorities in respect of the remand section of Ljubljana prison (CPT/Inf (2008) 7):

“48. The objective of the 2006 follow-up visit to the Ljubljana Prison was to examine measures taken by the Slovenian authorities aimed to implement the CPT’s recommendations with respect to remand prisoners. It should be stated from the outset that the CPT is concerned by the lack of progress as regards remand prisoners’ conditions of detention.

With an official capacity of 73, the remand section of the Ljubljana prison was accommodating 123 persons (including three juveniles) at the time of the visit [the whole establishment was accommodating 238 prisoners (with an official capacity of 128)]. Prisoners continued to be accommodated under cramped conditions, with generally five persons in 18 m² cells and two persons in cells measuring 8 m² (including the sanitary annexe). Naturally, this situation had negative repercussions for all aspects of life, both for prisoners and staff. The CPT calls upon the Slovenian authorities to implement its long-standing recommendation to reduce cell occupancy rates at Ljubljana prison. Cells measuring 18 m² should not accommodate more than four prisoners, and the 8 m² cells should preferably not accommodate more than one prisoner.

At the time of the 1995 and 2001 visits, Ljubljana prison was not in a position to offer remand prisoners anything which remotely resembled a programme of activities. Apart from two hours of daily outdoor exercise and access to a recreation room twice a week, the vast majority of those prisoners spent up to 22 hours a day confined to cramped cells, their only distraction being watching television, listening to the radio or reading books or newspapers. Regrettably, the situation observed in 2006 was hardly any different. The only positive developments concerned increased access to the recreation room (one-hour sessions three times a week) and the installation of a table tennis table in the exercise yard. Only five prisoners were provided with work and two had access to education. The CPT reiterates its recommendation that the Slovenian authorities intensify their efforts to develop a programme of activities for remand prisoners at Ljubljana prison. As stressed by the Committee in previous visit reports, the aim should be to ensure that those prisoners are able to spend a reasonable part of the day outside their cells engaged in purposeful activities of a varied nature (work; education; sport; recreation/association) ...

In respect of remand prisoners, the CPT is pleased that the Slovenian authorities have implemented its recommendation made in the 2001 visit report, enabling remand prisoners to receive open visits from their relatives (e.g. without a glass partition). However, material conditions in the visiting facilities at Ljubljana prison remained unsatisfactory; especially, they offered little privacy to inmates and visitors and were insufficient for the number of prisoners held.

At all the establishments visited, sentenced prisoners had adequate access to telephones. The situation was less favourable in respect of remand prisoners. Although entitled to a 10-minute conversation every week, a number of them complained that their calls were in practice shorter. The CPT reiterates the recommendation made in the 2001 visit report (paragraph 93, CPT/Inf (2002) 36) that the Slovenian authorities seek ways of improving opportunities for telephone contact for remand prisoners.”

According to the Annual reports issued by the Administration for the Execution of Penal Sentences, the remand section of Ljubljana prison held on average 148 remand prisoners in 2009 (2009 Report, 9. 31) and 139 remand prisoners in 2010 (2010 Report, p. 31).

In the chapter concerning the living conditions in Slovenian prisons, the reports include information on prison overcrowding. The rate of overcrowding is calculated on the basis of the domestic statutory requirement for the imprisonment of sentenced individuals, which is 9 square metres for a single occupancy cell and 7 square metres per person in a shared cell. According to the 2009 and 2010 reports nationwide prison occupancy exceeded the official capacity by 29 and 23 percent respectively. Almost all closed prison facilities accommodating male prisoners were overcrowded. The Ljubljana prison was the most overcrowded prison in Slovenia in 2009 and 2010. With an official capacity of 128 prisoners, it held 261 and 245 prisoners in 2009 and 2010 respectively. This meant that the level of overcrowding was 204 and 191 percent respectively (2009 Report, pp. 97 and 98; 2010 Report, pp. 98 and 99). According to the 2008 Report, the level of overcrowding in 2007 and 2008 was 200 and 196 percent respectively (p. 98). These figures include both sentenced and remand prisoners.

The 2010 Report noted that in respect of Ljubljana prison the maximum number of prisoners allowed was set at 245; if this number was exceeded the prison administration was required to institute a transfer procedure (p. 100). The report also noted (p. 100):

“... Poor living conditions are coupled with overcrowding, which is most present in the large prisons in Slovenia, Dob, Ljubljana and Maribor. The urgency of improving living conditions has been stressed by the Human Rights Ombudsman the CPT and other institutions.

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

On 17 and 18 February 2009 the Human Rights Ombudsman conducted a visit to Ljubljana prison in her capacity as a “national preventive mechanism” under the Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (“the Optional Protocol”). The report published following the visit reads as follows:

“Official capacity is still 128 prisoners. This includes 55 places designated for prisoners on remand, 65 places for sentenced prisoners and 8 places for prisoners in administrative detention. On the day of the visit, the prison held 254 prisoners (126 prisoners on remand, 126 sentenced prisoners and two prisoners in administrative detention). The official capacity was therefore exceeded by 98%.

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

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

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

The prison still does not have a special drug-free unit. ... The prison administration said that in the current overcrowding conditions it is impossible to organise such a unit. The administration estimated that about 50% of the prison population have drugrelated problems. ...

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

Prisoners on remand are locked in their cells for on average more than 21 hours a day. The only everyday activity outside cells is exercise in the small internal courtyard ... However, a roof has still not been constructed to allow the use of the courtyard in bad weather as well. This has not been improved due to lack of financial means. Other activities which allow remand prisoners to spend time out of their cells include fitness (twice a week), visits (one hour per week), use of telephone (ten minutes twice a week), short visits to the prison shop (three times a week) and showering (ten minutes per day). The remand prisoners are also allowed to participate in general cleaning on Saturdays, which is welcomed, but insufficient.

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

In her report concerning her activities under the Optional Protocol in 2009, the Human Rights Ombudsman also noted:

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

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

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

As regards the temperatures in the cells, the following was noted in the 2007 Annual report of the Human Rights Ombudsman:

“... During the visit to Ljubljana prison the official capacity was exceeded by almost 95 percent ... At the time of the visit it was ... typically summer weather, therefore the air in the cells was hot and humid. On the third day of the visit (19 July 2007) we measured, at around noon, 31.9 degrees Celsius in some cells. By using their own ventilators and by means of putting shades on the windows, the prisoners tried to lessen the effect of the scorching ... heat, as their rooms were locked and the air could not circulate. We considered that the living conditions, as observed by us during the summer, were inhuman.”


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

The applicant, Mr Christopher Brooks, is a British national who was born in 1938 and lives in Lancashire. He was represented before the Court by Royds Rdw, solicitors in London. The United Kingdom Government (“the Government”) were represented by their Agent, Mr C. Whomersley of the Foreign and Commonwealth Office.

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

The applicant’s wife died on 30 May 2000. On 3 September 2000, the applicant made a claim for widows’ benefits. On 5 September 2000, the applicant was informed that his claim had been disallowed as he was not a woman. On 15 September 2000 the applicant made a request for reconsideration. On 19 September 2000 his claim was reconsidered but the decision remained unchanged. On an unspecified date the applicant appealed. On 6 November 2000 the appeal tribunal confirmed the previous decision. The applicant applied for a further reconsideration and on 13 July 2001 he was advised that he was not entitled to widows’ benefits.

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

The domestic law relevant to this application is set out in Runkee and White v. the United Kingdom, no. 42949/98, §§ 40-41, 25 July 2007.