Violation of Art. 8;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - award

Anatoly Kovler;Elisabeth Steiner;George Nicolaou;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Peer Lorenzen

The applicant was born in 1950 and lives in Punat, on the Krk island in Croatia.

The applicant was in active military service with the former Yugoslav People’s Army (hereinafter: “the YPA”) for almost twenty-three years, until 25 June 1991, when he voluntarily left the YPA and moved from Postojna, Slovenia, where he held a specially protected tenancy of a flat given to him by the YPA, to Rijeka, Croatia.

The applicant made himself available for service in the Croatian army. He was unemployed until December 1991, when he found civilian employment. He then served in the Croatian army between October 1993 and October 1994 and eventually retired on 31 December 2007.

In the meantime, on 17 July 1991 the Government adopted the Decree on the Prohibition of All Real Estate Transactions in Croatia (Uredba o zabrani raspolaganja nekretninama na teritoriju Republike Hrvatske – “the Decree”, published in Official Gazette no. 36/1991 of 24 July 1991), which banned all transactions in respect of immovable property situated in Croatia and belonging to the Former Yugoslavia’s federal institutions or legal entities having their seat in one of its former federal units. The Decree entered into force on 24 July 1991.

The applicant had a specially protected tenancy of a flat in Postojna, Slovenia. On 22 August 1991 the applicant returned that flat to the YPA, in order to obtain priority for the allocation of another flat.

On 5 September 1991 the applicant was given the right to purchase a flat in Rijeka by the YPA and moved into the flat with his family.

Pursuant to the Government’s Decree of 2 October 1991, all possessions of the former YPA came under the ownership of the Republic of Croatia.

On 8 October 1991 the Republic of Croatia declared its independence.

On 8 November 1991 the Croatian Government and the YPA Rijeka Corps entered an agreement by which the Croatian Government guaranteed the personal safety of those members of the Rijeka Corps of the YPA who did not wish to leave the Rijeka area and to respect their acquired rights.

On 22 November 1991 the Croatian Government and the YPA entered into a further agreement by which the Croatian Government guaranteed the personal safety of those members of the YPA who did not wish to leave Croatia upon the termination of their service in the YPA and accepted to respect the inviolability of their private property and their continuing right to occupy the flats given to them by the YPA.

From January 1992 until his eviction in October 2004 the applicant paid the rent and all the charges in respect of the flat in Rijeka to the Croatian Ministry of Defence. Until June 2000 the bills were issued in the name of G.R., the previous holder of a specially protected tenancy of the same flat. From June 2000 the bills were issued in the applicant’s name.

In 1997 the applicant received part of a house in Punat on the island of Krk, Croatia by way of a gift from his father.

In 1996 the State brought a civil action against the applicant in the Rijeka Municipal Court (Općinski sud u Rijeci), seeking his eviction. The State argued that, as the owner of the flat, it had the right to seek the eviction of the applicant because the decision issued by the YPA, granting the applicant the right to purchase the flat in question, had been contrary to the Decree. The State sought repossession of the flat.

In his defence dated 16 November 1996 the applicant maintained that he had served as a YPA officer and that the YPA had allocated the flat in question to him and that, therefore, he had had a valid legal basis for occupying the flat. He further argued that he had had a specially protected tenancy of a flat in Postojna which he had given up in order to obtain a specially protected tenancy of a flat in Rijeka. He also submitted that he, at the invitation of the Croatian authorities, had made himself available to serve in the Croatian army and that he had two schoolchildren.

On 24 October 2000 the Municipal Court found in the State’s favour and ordered the applicant to vacate the flat. The court found that the State owned the flat and that the applicant had no legal entitlement to occupy it. The relevant part of the judgment reads as follows:

“It is disputed between the parties whether the defendant’s occupancy is based on a valid legal entitlement.

It is to be noted in that connection that the defendant had moved into the flat in question on the basis of a decision of the [YPA] Garrison Command (Komanda garnizona) no. 499-154-5 of 5 September 1991. Under sections 1 and 3 of the Decree on the Prohibition of All Real Estate Transactions in Croatia (Official Gazette 36/91), the [aforesaid] decision is null and void, and cannot serve as a valid legal basis for acquiring a specially protected tenancy, as [the grounds for doing so] are those listed in section 59 § 1 of the Housing Act. The above-mentioned Decree entered into force on 17 July 1991, while the decision of the Garrison Command was not issued until 5 September 1991, which was after the entry into force of the above-mentioned Decree. Since a ... legal act contrary to the provisions of the Decree is null and void ... which entails a requirement that the legal position of the parties to such a contract has to be the same as before the contract was concluded ... the plaintiff’s claim is to be granted ...”

The applicant lodged an appeal whereby he argued that before it had declared its independence, the Republic of Croatia had had no authority to enact any decrees concerning the assets of the YPA. He also relied on the agreement between the Croatian Government and the YPA. He reiterated his argument that he, when leaving the YPA, had acted at the invitation of the Croatian authorities and had made himself available to serve in the Croatian army.

On 19 September 2001 the Rijeka County Court (Županijski sud u Rijeci) upheld the first-instance judgment, endorsing the reasoning of the first-instance court, and dismissing the applicant’s argument that the Republic of Croatia had had no authority to adopt the Decree. The relevant part of the judgment reads as follows:

“... the first-instance court established that the defendant had occupied the flat in Rijeka, Mihanovićeva 2, on the basis of a decision of the Garrison Command ... which is null and void under sections 1 and 3 of the Decree ... and therefore cannot be considered as a valid legal basis for acquiring a specially protected tenancy, [in contrast to] the [grounds] listed in section 59 § 1 of the Housing Act ... The Decree entered into force on 17 July 1991, while the decision of the Garrison Command was not issued until 5 September 1991, which was after the entry into force of the above-mentioned Decree. In view of the nullity of the said decision, the plaintiff’s claim was granted ...

The factual findings and legal standpoints of the first-instance court are accepted by this court as correct.

The defendant argued that, before it had declared its independence, the Republic of Croatia had had no authority to enact any decrees concerning the assets of the YPA because these had been federal assets given to the YPA by a federal statute, namely, the YPA Assets and Financing Act (Zakon o sredstvima i financiranju JNA). Therefore, the Republic of Croatia had had no authority to enact the Decree on the Prohibition of All Real Estate Transactions in Croatia ...

These arguments are, however, ill-founded. The Decree is based on Article 140 § 2 of the Constitution of the Republic of Croatia, which provides that “where an act or action by a federal body or by another federal republic ... goes against the territorial integrity of the Republic of Croatia or its interests or where such an act places it in a position of inequality within the Federation, the bodies of the Republic [of Croatia] shall, on the basis of the right to self-determination and the sovereignty of the Republic of Croatia established by this Constitution, adopt necessary decisions in order to protect the interests of the Republic of Croatia. ...

Hence, the first-instance court correctly applied sections 1 and 3 of the Decree ... by declaring the decision of the Garrison Command ... null and void, since it was issued after the said Decree had entered into force. Accordingly the defendant does not have a valid legal basis for occupying the flat in Rijeka ... and his reliance on the Agreement between the Republic of Croatia and the YPA of 22 November 1991 is irrelevant.

The applicant brought a constitutional complaint on 1 February 2002. In that complaint, the applicant argued that the flat in question had been allocated to him by the former YPA on the basis of a federal statute before the Republic of Croatia had declared its independence. He again reiterated his arguments that he had left the YPA at the invitation of the Croatian authorities and had made himself available to serve in the Croatian army.

On an unspecified date, the applicant asked the Ministry of Defence, as owner of the flat, to conclude a contract for the sale of the flat between the Ministry as seller and himself as buyer. On 19 April 2004 the applicant lodged another request with the Ministry of Defence, in order to legalise his occupancy of the flat. He claimed that he had a specially protected tenancy of the flat and the right to buy the flat under Article 2 of Annex G to the Agreement on Succession Issues (Ugovor o pitanjima sukcesije). On 27 July 2004 the Ministry of Defence dismissed his request, finding that the Agreement cited by the applicant was inapplicable in the applicant’s case.

On 12 April 2007 the Constitutional Court dismissed the applicant’s complaint, endorsing the lower courts’ reasoning.

On 9 July 2002 the Rijeka Municipal State Attorney’s Office (Općinsko državno odvjetništvo u Rijeci) sought an enforcement order in the Rijeka Municipal Court for the eviction of the applicant. The enforcement order was issued on 30 December 2002. The applicant lodged an appeal, arguing that his eviction from the flat would cause him irreparable damage because he and his family would be rendered homeless. He also sought the adjournment of the eviction until a decision by the Constitutional Court on his constitutional complaint had been issued.

On 10 February 2004 the Rijeka Municipal Court dismissed the applicant’s request for an adjournment, finding that the grounds adduced were not those listed in the Enforcement Act (Ovršni zakon), and that the applicant had not specified the damage he would suffer if evicted.

The applicant lodged an appeal, arguing, inter alia, that the Rijeka Municipal Court had disregarded his argument that the eviction would render him and his family homeless.

On 26 May 2004 the Rijeka County Court dismissed the applicant’s appeals against the enforcement order and the decision on adjournment of the eviction, finding that the pending constitutional complaint and the irreparable damage claimed did not constitute valid grounds for successfully challenging the enforcement order.

The eviction was initially scheduled for 14 September 2004. On that occasion, representatives of the Rijeka Municipal State Attorney’s Office agreed with the applicant’s request to adjourn the eviction until 28 October 2004. The applicant complied with the enforcement order and vacated the flat on 28 October 2004.

The relevant part of the Agreement of 8 November 2001 concluded between the Croatian Government and the YPA Rijeka Corps reads:

“The Republic of Croatia guarantees the personal safely and respect for the acquired rights, including those from employment, of the members of the YPA Rijeka Corps who do not wish to leave the territory of Rijeka by the date [noted in] section XII of this Agreement at the latest. This guarantee also concerns the members of their families ...”

“... leaving the Croatian territory by the members of the Rijeka Corps is to be completed by 10 December 1991 at the latest.”

The relevant part of the Agreement of 22 November 2001 concluded between the Croatian Government and the YPA reads:

“The Republic of Croatia guarantees the personal safely, [and to respect the] inviolability of private property and continuing right to use flats, of the members of divisions, institutions and commands of the YPA who do not wish to leave the territory of Zagreb or the territory of the Republic of Croatia upon the termination of their service in the YPA, as well as [that] of the members of their families ...”

Article 34 of the Constitution (Ustav Republike Hrvatske, Official Gazette nos. 41 and 55) reads as follows:

“The home is inviolable.

A search of a person’s home or other premises shall be ordered by a court in the form of a reasoned written warrant based on law.

The occupier, or his or her representative, shall be entitled to be present during a search of a home or other premises. The presence of two witnesses shall be obligatory.

Under the conditions prescribed by law and where it is necessary to execute an arrest warrant or to apprehend a person who has committed a criminal offence or in order to remove serious danger to the life or health of people, or to property of a high value, the police may enter a person’s home or other premises and carry out a search without a court warrant or the occupier’s consent and without any witnesses being present.

Where there is a probability that evidence may be found in the home of a person who has committed a criminal offence, a search shall be carried out only in presence of witnesses.”

The relevant part of the Housing Act (Official Gazette nos. 51/1985, 42/1986, 22/1992 and 70/1993) reads:

“A specially protected tenancy is acquired on the date of moving into the flat on the basis of a final decision allocating the flat or on another valid legal basis, unless otherwise provided by this Act.”

The Specially Protected Tenancies (Sale to Occupier) Act (Official Gazette nos. 27/1991, 33/1992, 43/1992, 69/1992 25/1993, 26/1993, 48/1993, 2/1994, 44/1994, 47/1994, 58/1995, 11/1996, 11/1997 and 68/1998, Zakon o prodaji stanova na kojima postoji stanarsko pravo) regulates the conditions for the sale of flats let under specially protected tenancies. In general, the Act entitles the holder of a specially protected tenancy of a publicly owned flat to purchase it under favourable conditions of sale.

The relevant provision of the Act provides as follows:

“Every holder of a specially protected tenancy (hereinafter ‘the tenant’) may submit a written application to purchase a flat to the ... owner (‘the seller’) ... and the seller shall be obliged to sell the flat.

Section 161 paragraph 1 of the Property Act (Zakon o vlasništvu i drugim stvarnim pravima, Official Gazette no 91/1996) reads as follows:

“An owner has the right to seek repossession of his or her property from a person in whose possession it is.”

The relevant part of the Civil Procedure Act (Zakon o parničnom postupku, Official Gazette of the Socialist Federal Republic of Yugoslavia nos. 4/1977, 36/1977 (corrigendum), 36/1980, 69/1982, 58/1984, 74/1987, 57/1989, 20/1990, 27/1990 and 35/1991, and the Official Gazette of the Republic of Croatia nos. 53/1991, 91/1992, 58/1993, 112/1999, 88/2001, 117/2003, 88/2005, 2/2007, 84/2008 and 123/2008) provides as follows:

“(1) When the European Court of Human Rights has found a violation of a human right or fundamental freedom guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms or additional protocols thereto ratified by the Republic of Croatia, a party may, within thirty days of the judgment of the European Court of Human Rights becoming final, file a petition with the court in the Republic of Croatia which adjudicated in the first instance in the proceedings in which the decision violating the human right or fundamental freedom was rendered, to set aside the decision by which the human right or fundamental freedom was violated.

(2) The proceedings referred to in paragraph 1 of this section shall be conducted by applying, mutatis mutandis, the provisions on the reopening of proceedings.

(3) In the reopened proceedings the courts are required to respect the legal opinions expressed in the final judgment of the European Court of Human Rights finding a violation of a fundamental human right or freedom.”

The relevant part of Constitutional Court decision no. U-III/408/2003 of 18 February 2004 reads as follows:

“As regards the alleged violation of the constitutional right guaranteed under Article 34 of the Constitution, it is to be said that that a violation of that right cannot occur in enforcement proceedings, as Article 34 of the Constitution guarantees the inviolability of the home, which concerns the conduct of the police during entries and searches of homes in the execution of arrest warrants or in order to apprehend a perpetrator of a criminal offence or to remove serious risk to the lives and health of persons or to valuable assets. Therefore, the provision in question is not applicable to the proceedings at issue.”


Preliminary objection rejected (estoppel);Violation of Art. 6-1;Non-pecuniary damage - finding of violation sufficient

The applicant bought the Calais Vinery, Calais Lane, St Martin’s in 1982. A number of planning applications were made to permit residential use of the land in the ensuing years. The applications were all refused, an appeal being dismissed by the Royal Court in July 1984. In 1986 or 1987 the applicant moved into a converted packing shed on his land.

In 1988 the applicant, through an advocate, made representations to a planning inquiry which was considering the draft Detailed Development Plan no. 6 (DDP6). In his report to the President of the Island Development Committee (IDC), the inspector set out the arguments led by the applicant’s advocate and by the advocate for the IDC, and concluded that a dwelling on the applicant’s site would be an intrusion into the agricultural/horticultural hinterland. He supported the IDC’s proposed zoning of the land as an area reserved for agricultural purposes and in which development was generally prohibited.

The President of the IDC submitted DDP6, in draft, to the President of the States of Deliberation on 22 May 1990.

The States of Deliberation, presided over by Mr Graham Dorey, the Deputy Bailiff, debated and adopted DDP6 on 27 and 28 June 1990. The zoning of the applicant’s land was not changed.

A retrospective application for planning permission to convert the packing shed into a dwelling was rejected by the IDC on 11 July 1991 as the IDC was bound to take into account DDP6, according to which the site was zoned as a Developed Glasshouse Area where residential development was not allowed.

On 27 March 1992 the applicant was convicted by the Magistrates’ Court on his guilty plea of changing the use of the shed without permission, contrary to section 14(1)(a) of the Island Development (Guernsey) Law 1966 (“the 1966 Law”). He was fined 100 pounds sterling, with ten days’ imprisonment in default.

On 15 February 1993 the IDC applied for permission under Section 37(1)(h) of the 1966 Law itself to carry out the necessary works to remedy the breach of the planning legislation. The application was adjourned in Ordinary Court by the Deputy Bailiff on 25 February 1993 for a date to be fixed. The Deputy Bailiff was also unwilling to hear the matter on the ground of having dealt with the applicant when he was Her Majesty’s Procureur.

A further application on the applicant’s behalf for permission to continue living in the shed was dismissed by the IDC on 18 May 1993, and a request for the section 37(1)(h) proceedings to be adjourned was dismissed by the Bailiff on 20 May 1993. On 25 June 1993 the Royal Court comprising the Bailiff and three Jurats granted the IDC’s application under Section 37(1)(h).

On 10 August 1993 the applicant’s current representative made a formal application for change of use on behalf of the applicant, together with a request that continued occupation be permitted pending determination of the expected appeal against an expected refusal. The application was rejected by the IDC on 26 October 1994 in the following terms:

“I have to inform you that ... the Committee decided to reject your proposal for the following reason which is based on the considerations which the Committee is bound to take into account under the provisions of section 17 of the Island Development (Guernsey) Laws 1966-1990:–

(a) Detailed Development Plan no. 6, as approved by the States.

The site is located within a Developed Glasshouse Area and the Committee’s written statement of policy makes no provision for the form of development proposed. I enclose for your information a copy of the written statement of policy. ...”

On 6 June 1995 the Royal Court, comprising the Bailiff, by then Sir Graham Dorey, and seven Jurats, heard the applicant’s appeal. The applicant’s representative accepted that the written statement provided for no development other than “Developed Glasshouse” in the area, but submitted that there were nevertheless reasons in the case to permit the change of use: the external appearance of the building would not change and there would be no future prejudice to the horticultural use of the land, such that it was unreasonable for the IDC to take an unduly narrow view of what it allowed under the DDP. The Bailiff then summed up the applicant’s complaints to the Jurats, instructing them that the ultimate burden of proof was on the IDC to satisfy the Jurats that the IDC’s decision was reasonable. The appeal was dismissed unanimously. The decision recites the grounds of appeal, but gives no reasons.

The Court has been referred to one recent official document relating to the Constitution of Guernsey generally. It is the States of Guernsey Administrative and Accounting Guidelines, issued in 1991 as a manual of reference and best practice for the information and guidance of civil servants. It has forewords by the then Bailiff and President of the States, Sir Charles Frossard, and by the States Supervisor, Mr F.N. Le Cheminant. The section dealing with the Constitution and law of Guernsey is taken from a pamphlet by a former Bailiff, and the part dealing specifically with the position of the Bailiff reads as follows:

“The Bailiff is the Island’s chief citizen and representative.

The Bailiff is appointed by the Sovereign by Letters Patent under the Great Seal of the Realm and holds office during Her Majesty’s Pleasure subject to a retiring age of seventy years. He is President of the States of Election, President of the States of Deliberation, President of the Royal Court, President of the Court of Appeal and head of the Administration.

The Bailiff, as President of the States of Deliberation, is entitled to speak on any matter and has no original vote but he has a casting vote if the Members are equally divided. In general, the Bailiff uses his voice to ensure a further investigation of questions on which the States are in doubt. He places measures before the States at the request of the States Committees but he can also on his own initiative place any matter before the assembly.

He is, with the Lieutenant-Governor, a channel of communication between the Privy Council and the Secretary of State for the Home Department on the one hand and on the other, the Island authorities; and in a number of questions, as the head of the Administration of the Island, he would be expected to guide the Island authorities.

He has been relieved of some of his administrative responsibilities by the appointment of the States Advisory and Finance Committee which is in the nature of a co-ordinating committee with advisory powers but the Bailiff may, in his own discretion, lay before the States any matter which he has previously referred to the Committee providing that he gives the Committee an opportunity to acquaint the States with its views.

While the Bailiff is responsible for arranging the business to come before the States, he is not in a position to refuse to place before the States any question of business if so requested by Members or Committees of the States. The assembly looks to the Bailiff for advice on matters affecting the Constitution of the Island.

In the course of insular legislation or in discussions arising from communications from the Privy Council or the Home Department, it is the duty of the Bailiff to represent the views of the Island in constitutional matters.

In the event of differences between the Crown and the States it is the historical duty of the Bailiff to represent the views of the people of the Island.”

The Bailiff is the senior judge of the Royal Court. In the modern era, he has usually occupied the offices of Her Majesty’s Comptroller, Her Majesty’s Procureur (Solicitor-General and Attorney-General respectively) and, since 1970, Deputy Bailiff, before finally becoming Bailiff. In his judicial capacity, the Bailiff is the professional judge (with the lay Jurats) in the Royal Court, and is ex officio President of the Guernsey Court of Appeal. In his non-judicial capacity, the Bailiff is President of the States of Election, of the States of Deliberation, of four States committees (the Appointments Board, the Emergency Council, the Legislation Committee and the Rules of Procedure Committee), and he plays a role in communications between the island authorities and the government of the United Kingdom and the Privy Council. Where the Bailiff presides in his non-judicial capacity, he has a casting, but not an original, vote.

The States of Election elects people to fill the vacancies which occur amongst the twelve Jurats. Jurats sit as lay members of the Royal Court. It is their function to determine the issues of fact referred to them, and to decide whether or not to allow an appeal. They also sit on certain of the States committees, either because a committee mandate requires the election of a Jurat or by reason of abilities or interests personal to them. Jurats are not, however, eligible to sit on the States Committee for Home Affairs, the Gambling Control Committee or any States committee which administers legislation the provisions of which include a right of appeal to the Royal Court against a decision of that committee.

The States of Deliberation exercises its legislative power in Guernsey in the form of Laws and Ordinances. In practice, a “Billet d’Etat” is laid before the States, generally by one or other of the States committees. Having passed through the States of Deliberation, Projets de Loi (draft laws) are scrutinised by the Home Office and other relevant departments of the United Kingdom government before being submitted to the Privy Council in London for royal assent. Ordinances do not need royal assent and are made under the States of Deliberation’s limited common-law powers, or under powers delegated to the States by Guernsey laws or Acts of the United Kingdom parliament applicable to Guernsey.

The States of Deliberation is not divided on party political lines; members of the States are elected as individuals, and vote in all matters according to their consciences. All members are of equal importance, and there are no time-limits on the length of speeches or debates generally. The States is scheduled to meet twelve times each calendar year. Sittings usually last one or two days.

The States committees conduct the government of Guernsey. There are some fifty States committees, to which specific administrative tasks are given by statute or delegated by the States of Deliberation. Each committee is directly accountable to the States of Deliberation.

None of the States committees has legal supremacy over the others, although the Advisory and Finance Committee is the most important. It oversees Treasury matters and examines all proposals and reports which are to be placed before the States of Deliberation. The committees, each of which has a Chief Officer or Chief Executive, are supported by a professional civil service of some 1,800 staff.

The Appointments Board, one of the States committees, appoints officials to fill certain offices in the States’ service when those offices become vacant. With limited exceptions, it appoints at the level of Senior Officer Grade 8 or above. The offices include the States Supervisor and other senior civil servants such as senior medical personnel, the Prison Governor and the Chief Officer of Police. It has never appointed a Chief Executive of the IDC. The Appointments Board met twenty-four times in the ten years prior to 31 December 1998.

The Emergency Council has the power to declare a state of emergency, to make emergency regulations where the population or a substantial portion of it risks being deprived of the essentials of life, and to make other essential arrangements in the case of hostile attack by a foreign power. It has met three times in the last ten years. On none of those occasions was a state of emergency declared.

The Legislation Committee, which meets about once a month, reviews and revises the Projets de Loi, reviews and drafts Ordinances and, in certain cases, orders that an Ordinance shall come into force pending consideration by the States of Deliberation. The latter function has been used on sixteen occasions in the last ten years.

The Rules of Procedure Committee considers the Rules of Procedure in relation to assemblies of the States of Deliberation, receives representations from the States and makes representations to the States for amendments to the Rules. It has met twenty-five times in the last fifteen years.

The Bailiff’s role in communications between the island authorities and the government of the United Kingdom and Privy Council arises from his historical function of representing the views of the islanders to the Crown. The Bailiff represents a States committee’s views outside the island when specifically requested to do so, and in accordance with a clear mandate. Representations are generally on behalf of the smaller committees. Examples of this function are the Bailiff’s involvement in negotiating the level of fees payable in respect of Guernsey students attending higher education institutions in the United Kingdom, and in requesting the government to ensure that Heathrow Airport should have slots for aircraft from regional airports such as Guernsey.

The States Supervisor, the Chief Officer of the Advisory and Finance Committee, is the committee’s senior adviser on policy, and is also head of the Guernsey civil service. He liaises with other senior civil servants in relation to all proposals for legislation and other major administrative items submitted by the various committees to the States of Deliberation and comments on them for the benefit of the Advisory and Finance Committee’s deliberations on them. He also gives guidance to the Chief Officers of other committees and attends meetings of those committees where appropriate.

Section 14(1)(a) of the Island Development (Guernsey) Law 1966 provides:

“A person shall not, without the permission in writing in that behalf of the Committee, carry out development of any land.”

Section 17(a) provides:

“In exercising its powers under the provisions of the last preceding section the Committee shall take into account the Strategic and Corporate Plan when approved by the States and any relevant Detailed Development Plans when so approved.”

In the case of Bordeaux Vineries Ltd v. States Board of Administration (4 August 1993), a challenge was made to the participation of the Bailiff as a judge in the Royal Court in an action against the States Board of Administration, one of the major States committees. The Court of Appeal noted that the then Bailiff, at first instance, had held:

“Insofar as the constitutional position is concerned ... my first duty is to the Crown in all matters, and I do not espouse causes of the States. ... The point has been raised as to my casting vote ... the vote is to be cast constitutionally. The way I defined that was to vote against any proposition before the States and only if that vote impinged on my conscience would I contemplate any other course.”

In connection with the existence of an appeal to it, the Court of Appeal noted:

“... the decision upon a submission that the Bailiff ... is disqualified by interest from hearing any matter should in the first place be made by the Bailiff ... From that decision an appeal lies to this Court.”

As to the participation of the Bailiff, the Court of Appeal found that:

“... the Bailiff is invested by law with duties in the Royal Court and in the States. The consequence of this dual function is that he has on occasion to take part in the exercise by the court of jurisdiction over the States. I do not think that on these occasions his responsibility in the States disqualifies him from discharging his responsibility in this Court. He can properly discharge both responsibilities because although he is a member of the States his special position there means he is not responsible for the decisions of the States or the acts of its agencies ...”


In 1964 the applicant was convicted of the murder of a woman whom he had violently assaulted. He was sentenced to a mandatory term of life imprisonment. At that time the doctor who examined him found no signs of mental illness or abnormality. In May 1980 he was released on life licence after a positive recommendation by the Parole Board.

In June 1981 the applicant killed a 75 year-old woman who was placing flowers on a family grave in a London cemetery. He cut her throat with a knife. In December 1981 he pleaded not guilty to murder, but guilty to manslaughter on the ground of diminished responsibility. This plea was accepted by the court and in January 1982 a discretionary sentence of life imprisonment was imposed (see paragraph 12 below). The trial judge considered that a life sentence was appropriate in view of the extreme danger to the public which the applicant represented. The court, at the same time, revoked his life licence under section 62 (7) of the Criminal Justice Act 1967 ("the 1967 Act"; see paragraphs 14 and 15 below). The applicant claims that he was informed in 1983 by prison officers at H.M. Prison Wormwood Scrubs that he was subject to the regime for discretionary life sentences.

In December 1985 the applicant was transferred to the hospital wing of Parkhurst Prison. Since then he has been transferred to Gartree Prison where he is held as a "Category A" (high security) prisoner.

The applicant was considered for parole by the Parole Board in January 1989. The Board recommended that his case be referred again to the local review committee in 1994. By letter dated 14 August 1989 to the applicant’s Member of Parliament, the Home Office gave the following information:

"In accordance with paragraph 4 [of section 61 of the 1967 Act], the trial judge and Lord Chief Justice were consulted in September 1987. In the light of their views, it was decided that [the applicant’s] case should be referred to the local review committee, as the first stage in a formal review by the Parole Board, in June 1988.

The local review committee considered the case at that time [June 1988] and the Parole Board considered it in January 1989. The Board did not feel able to recommend [the applicant’s] release and recommended instead that it should be referred to the local review committee (as the first stage in a further formal review) in January 1994. This recommendation was accepted and [the applicant] was informed accordingly. He should have been told in February, but owing to an oversight at Gartree I am afraid that he was not informed until last month. You will appreciate that I cannot forecast what the outcome of the next review will be or say when [the applicant] might be released. When the Parole Board consider [the applicant’s] case in 1994 the tariff will have been satisfied and the question of risk will be the overriding consideration. Indeed, the Parole Board will have borne the question of risk in mind in making their recommendation as to the date of the next review. As you know, the safety of the public is paramount and no life sentence prisoner will be released if the assessment of risk is unsatisfactory, no matter how long he has been detained."

He subsequently learned that the "tariff" period fixed by the trial judge in respect of his second offence expired in June 1991 (see paragraph 17 below as regards the "tariff" period).

In a Home Office memorandum dated 5 June 1992 the applicant was informed that the "tariff" in respect of his conviction in 1964 had now been served and that his continued detention was based on the risk he represented.

Murder carries a mandatory sentence of life imprisonment under the Murder (Abolition of Death Penalty) Act 1965. A person convicted of manslaughter may be sentenced to life imprisonment at the discretion of the trial judge. Such a discretionary life sentence of imprisonment may also be passed in certain other cases where the offence is grave and where there are exceptional circumstances which demonstrate that the offender is a danger to the public and that it is not possible to say when that danger will subside (see, in this connection, the Thynne, Wilson and Gunnell v. the United Kingdom judgment of 25 October 1990, Series A no. 190-A, pp. 19-20, paras. 50-53).

Under section 61 of the 1967 Act the Secretary of State may release on licence a person sentenced to life imprisonment only if recommended to do so by the Parole Board, and after consultation with the Lord Chief Justice of England and the trial judge if available. By virtue of section 62 (1) the Secretary of State may revoke the licence of a person whose recall to prison is recommended by the Parole Board.

Under section 62 (7) of the 1967 Act, if a person subject to a licence is convicted on indictment of an offence, the trial court may, whether or not it passes any other sentence on him, revoke the licence.

The effect of revocation of a licence, whether by the Secretary of State or by a court, is that the person is liable to be detained in pursuance of his sentence (section 62 (9) of the 1967 Act).

It is the duty of the Parole Board to advise the Secretary of State with respect to, inter alia, the release on licence under section 61, and the recall under section 62, of persons whose cases have been referred to the Board by the Secretary of State (section 59 of the 1967 Act; see also the above-mentioned Thynne, Wilson and Gunnell judgment, pp. 21-22, paras. 57-58).

Prior to 1992, in respect of both mandatory and discretionary life sentences, the Secretary of State would receive the views of the judiciary (the trial judge and the Lord Chief Justice) on the period deemed necessary to satisfy the requirements of retribution and deterrence ("the tariff period") and of the Parole Board on the question of risk. The Secretary of State would decide when, if at all, it was appropriate to release the prisoner on life licence.

He accepted the views of the judiciary, in discretionary life sentence cases, as to the length of the tariff period. However, in mandatory life sentence cases he formed his own judgment on that question, taking into account the views of the judiciary (for the distinction between discretionary and mandatory life sentences, see the above-mentioned Thynne, Wilson and Gunnell judgment, pp. 19-20, paras. 50-53).

Following the judgment of the European Court in the case of Thynne, Wilson and Gunnell (loc. cit.) changes to the procedures for the release of discretionary life prisoners were introduced by the Criminal Justice Act 1991 ("the 1991 Act"). Parliament decided, however, not to extend these changes to mandatory life sentences. Under section 34 of this Act discretionary life prisoners are now informed by the trial judge, in open court, of the tariff period appropriate for the offence. After the expiry of that period, the prisoner has a right to be released on life licence if and when the Parole Board decides that it is safe to do so. They are entitled to appear before the Board in person, to see all the reports placed before it, and to call witnesses and submit documentary evidence. When the Board decides that a prisoner should be released the Secretary of State is under a duty to do so (section 34 (3) of the 1991 Act).

Section 34 (7) (a) of the 1991 Act specifically excludes from eligibility for review under the new procedures a discretionary life prisoner who is also serving a mandatory life sentence.

In the debate in the House of Commons on 16 July 1991 concerning this legislation, the Minister of State for the Home Department made the following statement concerning the differences between mandatory and discretionary life sentences:

"Mandatory life sentence cases ... raise quite different issues and the Government do not agree that it is appropriate to extend a similar procedure to these cases. In a discretionary case, the decision on release is based purely on whether the offender continues to be a risk to the public. The presumption is that once the period that is appropriate to punishment has passed, the prisoner should be released if it is safe to do so.

The nature of the mandatory sentence is different. The element of risk is not the decisive factor in handing down a life sentence. According to the judicial process, the offender has committed a crime of such gravity that he forfeits his liberty to the State for the rest of his days. If necessary, he can be detained for life without the necessity for a subsequent judicial intervention.

The presumption is, therefore, that the offender should remain in custody until and unless the Home Secretary concludes that the public interest would be better served by the prisoner’s release than by his continued detention. In exercising his continued discretion in this respect, the Home Secretary must take account not just of the question of risk, but of how society as a whole would view the prisoner’s release at that juncture. The Home Secretary takes account of the judicial recommendation, but the final decision is his."

In relation to mandatory life prisoners, the Secretary of State continues to decide the length of the tariff after considering advice from the judiciary and any representations which the prisoner wishes to make. After the expiry of that period, he has power to release the prisoner on life licence if recommended to do so by the Parole Board. The decision on whether to release is for him alone.

On 27 July 1993 the Secretary of State made a statement in Parliament explaining his practice in relation to mandatory life prisoners. The statement emphasised that before any mandatory life prisoner is released on life licence, the Secretary of State

"will consider not only, (a) whether the period served by the prisoner is adequate to satisfy the requirements of retribution and deterrence and, (b) whether it is safe to release the prisoner, but also (c) the public acceptability of early release. This means that I will only exercise my discretion to release if I am satisfied that to do so will not threaten the maintenance of public confidence in the system of criminal justice".

In determining the principles of fairness that apply to the procedures governing review of mandatory life sentences, the English courts have recognised that the mandatory sentence is, like the discretionary sentence, composed of both a punitive period (the "tariff") and a security period. As regards the latter, detention is linked to the assessment of the prisoner’s risk to the public following the expiry of the "tariff" (R. v. Parole Board, ex parte Bradley (Divisional Court) [1991] 1 Weekly Law Reports 135; R. v. Parole Board, ex parte Wilson (Court of Appeal) [1992] 2 All England Reports 576; R. v. Secretary of State for the Home Department, ex parte Cox (judgment of the Divisional Court of 4 September 1992); R. v. Parole Board, ex parte Creamer and Scholey (judgment of the Divisional Court of 21 October 1992)).

In R. v. Secretary of State for the Home Department, ex parte Doody [1993] 3 All England Reports 92, the House of Lords observed that, in contrast with the position as regards discretionary life sentences, the theory and the practice in respect of mandatory life sentences were out of tune.

In his speech, with which the other Law Lords agreed, Lord Mustill explained that the policy whereby murder was treated as an offence so grave that the proper penal element of the sentence was detention for life was inconsistent with the practice adopted by successive Secretaries of State that a mandatory life sentence included a "tariff" period to reflect the requirements of retribution and deterrence. A mandatory life prisoner knew that once he had served the penal element of his sentence the penal consequences of his crime had been exhausted.

Nevertheless, the Secretary of State was not obliged to adopt the judicial view of the "tariff" period and it was he who was entrusted with the task of deciding on the prisoner’s release. He was entitled to depart from the judge’s advice and to have regard to broader considerations of a public character than those which applied to an ordinary sentencing function. He added (loc. cit., p. 105):

"The discretionary and mandatory life sentences, having in the past grown apart, may now be converging. Nevertheless, on the statutory framework, the underlying theory and the current practice there remains a substantial gap between them. It may be - I express no opinion - that the time is approaching when the effect of the two types of life sentence should be further assimilated. But this is a task for Parliament, and I think it quite impossible for the courts to introduce a fundamental change in the relationship between the convicted murderer and the State, through the medium of judicial review."

Lord Mustill considered that, having regard to the rights which discretionary prisoners had, the Secretary of State was required to comply with the following requirements of procedural fairness when fixing the penal element in a mandatory life sentence: the Secretary of State must inform such a prisoner of the judicial advice on the length of the "tariff", and give him the opportunity to make written representations on that subject before he decides on the appropriate term of years. If the Secretary of State departs from the judicial advice, he must give reasons for doing so.


Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Ineta Ziemele;Josep Casadevall

The applicant, Mr Leons Lobanovs, is a Latvian national who was born in 1952 and lives in Daugavpils.

The Latvian Government (“the Government”) were represented by their Agent, Mrs Inga Reine.

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

Alleged ill-treatment and investigation

On 13 April 1994, the applicant was found guilty of aggravated infliction of bodily harm and sentenced to nine years' imprisonment. The applicant began to serve his sentence in Jēkabpils prison.

On 11 December 1999, due to violations of the internal prison rules, the applicant was transferred from Jēkabpils prison to Grīva prison and on 11 May 2001 he was transferred to Daugavpils prison.

According to the applicant, on 29 September 2001 in Daugavpils prison he had felt weak due to being on hunger strike, and had lain down on the floor. A prison guard had approached him and kicked him in the left knee once. A day later another prison guard kicked him in the left side four or five times. Afterwards, on 2 October 2001 the prison guards humiliated the applicant several times by lifting him up together with his bed and throwing it onto the floor.

On 1 October 2001 the applicant complained to the prison doctor about permanent pain in his left knee allegedly caused by ill-treatment by a prison guard. According to the medical report the doctor detected a deformation in the joint of the applicant's left knee. It also stated that the knee was not swollen and the skin of the knee was of a normal colour. It was concluded that the deformation of the applicant's left knee was caused by chronic arthrosis. Following another medical examination on 2 October 2001 the applicant was diagnosed with inflammation of the left knee joint.

On 26 October 2001 the applicant was transferred to the Central Prison Hospital and on the same day he was admitted to the surgical unit of the hospital, where his previous diagnosis was confirmed.

On 29 October 2001 during a medical examination at the hospital the applicant complained of a swollen knee. He also stated that a month ago he had fallen on his left knee.

On 10 November 2001 the applicant left the hospital after having received medical treatment and having refused to have his knee operated on.

Meanwhile, on 2 November 2001 the applicant had applied to the Specialised Public Prosecutor's Office complaining that from 29 September to 2 October 2001 the Daugavpils prison guards had ill-treated him (see paragraph 6 above). He also complained to the Latvian Prison Administration about the circumstances of his transfer from Daugavpils prison to the Central Prison Hospital between 25 October and 27 October 2001, alleging that he had not been provided with nutrition during the transfer.

On 6 November 2001 a prosecutor from the Specialised Public Prosecutor's Office met with the applicant in private and obtained statements from him.

On 8 November 2001 the Specialised Public Prosecutor's Office ordered a forensic medical report on the applicant's knee injury.

On 13 November 2001 the applicant underwent forensic medical tests. The medical expert's referred to the applicant's medical history by stating, inter alia, that in 1984 the applicant has complained about pain in spine and his right leg. In order to reach a conclusion the experts requested additional medical records from the Central Prison Hospital.

On 11 December 2001 the Latvian Prison Administration dismissed the applicant's claim concerning the conditions of his transfer to the Central Prison Hospital.

On 12 December 2001 the forensic medical expertise concluded that the swelling in the applicant's left knee was associated with chronic changes to the knee joints caused by deforming arthrosis and bursitis.

On 13 December 2001 a prosecutor of the Specialised Public Prosecutor's Office decided not to initiate criminal proceedings regarding the alleged ill-treatment in Daugavpils prison. The decision was supported by the results of the expert report and the results of the internal investigation undertaken by the head of Daugavpils prison. According to the latter, on 29 September, 30 September and 2 October 2001 prison guards had inspected the cell without using any force against the applicant. The applicant did not appeal against the decision to a prosecutor of a higher rank.

From 26 July to 10 August 2002 the applicant was repeatedly admitted to the Central Prison Hospital concerning his joint disease.

Alleged inference with the applicant's right to respect for his correspondence

According to the applicant, on 4 June 2001 he complained to the Prosecutor General that the Grīva prison administration had confiscated complaints he had drafted to various State institutions. He also asked the Office of the Prosecutor to forward his letters, without specifying their contents, to the State Language Centre and the Minister of Justice. The letters to the latter authorities were in a sealed envelope attached to the letter addressed to the Prosecutor General.

Following the applicant's inquiry on 9 July 2001 the Office of the Prosecutor General informed the applicant that it had not received his complaint of 4 June 2001.

On 18 July 2001, naming the document “a copy of the letter of 4 July 2001”, the applicant sent to the Prosecutor General an identical complaint with attached sealed letters addressed to the Ministry of Justice and the State Language Centre.

On 3 August 2001 the Specialized Prosecutor's Office asked the Grīva prison authority to examine the applicant's complaints, whereas the letters addressed to other State institutions were returned to the applicant informing him that they could be sent at his own expense directly to the recipients.

On 17 August 2001 the Specialized Public Prosecutor's Office replied to the applicant on the merits of his complaint of 18 July 2001, which was allegedly the copy of the letter from 4 June 2001.

On 22 April 2002 the applicant repeatedly asked the Prosecutor General to forward a sealed envelope to the Ministry of Justice.

Following the applicant's inquiry on 3 July 2002 the Specialized Public Prosecutor's Office informed the applicant that it had not received his complaint of 22 April 2002.

On 29 September and 14 October 2002 the Ministry of Justice received letters from the applicant.

Under section 50 of the code convicted persons have the right to write proposals, submissions and complaints to State institutions, public organisations and officials. Proposals, submissions and complaints of convicted persons shall be sent to the appropriate persons and decided in accordance with the procedures prescribed by law. Proposals, submissions and complaints addressed to the prosecutor shall not be monitored and shall be dispatched within twenty-four hours (as worded at the material time).


Remainder inadmissible;Violation of Art. 6-1;Non-pecuniary damage - award

Anatoly Kovler;Elisabeth Steiner;Erik Møse;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Peer Lorenzen

The applicant was born in 1963 and lives in Minusinsk.

On 28 December 2001 the Tomsk Regional Court found the applicant guilty of membership of an organised criminal group, several counts of attempted aggravated murder, intentional destruction of property and arms possession and sentenced him to fourteen years’ imprisonment, which he was sent to serve in correctional colony no. 2, Tomsk Region.

On 11 November 2004 the applicant brought an action with the Asino Town Court, complaining of various violations of his rights by the administration of correctional colony no. 2. In particular, he complained that on a number of occasions in 2003 and 2004 the director of the correctional colony had ordered him to be placed in a punishment cell, which had entailed a serious worsening of the general conditions of his detention and limitation or deprivation of his rights as a detainee. The applicant also argued that the colony authorities had unlawfully seized his writing utensils, and had forbidden him to use the colony library and to purchase newspapers, magazines and books. He further alleged that they had not allowed him to have meetings with counsel and to make paid phone calls to his relatives, counsel and the European Court of Human Rights. His biggest grievance, however, was that the administration had refused to post his complaints to various authorities in Russia and had monitored or even intercepted his correspondence with the Court. The applicant also requested that the Town Court ensure that he could be present at a court hearing during the examination of his complaint.

Following a number of refusals by the Town Court to grant the applicant’s request, and the subsequent revocation of those decisions by the Tomsk Regional Court, on 3 October 2006 the Asino Town Court granted leave to bring an action for an examination on the merits, and set a preliminary hearing for 6 October 2006. Subsequent hearings were held on 12 and 30 October 2006. The applicant was not informed of either of those hearings. In fact, on 17 October 2006 he was transferred to another correctional colony in the town of Verkhneuralsk, Chelyabinsk Region, more than 1,500 km from his previous place of detention.

On 26 January 2007 the applicant was transferred to detention facility no. 77/2 in Moscow.

On 12 February 2007 the Asino Town Court dismissed the applicant’s complaint, having found that either the restrictions on the applicant’s rights had been lifted following an inquiry by prosecution authorities or they had been warranted by the applicant’s placement in the punishment cell, in view of numerous instances of unlawful behaviour on his part, such as refusal to keep his cell tidy, destruction of colony property, and so on. The applicant was not brought to the hearing. Representatives of the colony administration attended the hearings before the Town Court and made oral submissions.

By a separate decision issued on 12 February 2007 the Asino Town Court responded to the applicant’s request to be present at the hearings. In particular, the Town Court held as follows:

“[The applicant], having been convicted by the judgment of 28 December 2001 of the Tomsk Regional Court, is currently serving his sentence. It appears from the case file materials that he was transferred outside the Tomsk Region. [The applicant] lodged a complaint about the actions of the head of [correctional colony no. 2], Tomsk Region...; accordingly, his complaint is being examined by the Asino Town Court within the civil procedure. The Execution of Sentences Act of the Russian Federation, in force at the material time, does not provide for an opportunity to transfer convicts to [ensure] their participation in court hearings in civil cases; therefore it is impossible for the court to ensure [the applicant’s] presence at the hearings in the present civil case.”

The applicant appealed, arguing, inter alia, that the Town Court had unlawfully refused to ensure his presence at the hearings, despite the fact that the majority of the circumstances in dispute were exclusively within his personal knowledge and it was important for the Town Court to hear both parties to the proceedings, the applicant and the administration.

At a hearing on 22 May 2007, held in the applicant’s absence, the Tomsk Regional Court upheld the judgment of 12 February 2007, endorsing the Town Court’s reasoning, including that on the subject of the applicant’s attendance.

The Code of Civil Procedure of the Russian Federation (CCP) provides that individuals may appear before a court in person or may act through a representative (Article 48 § 1).

The Penitentiary Code provides that convicted persons may be transferred from a correctional colony to an investigative unit if their participation is required as witnesses, victims or suspects in connection with certain investigative measures (Article 77 § 1). The Code does not mention any possibility for a convicted person to take part in civil proceedings, whether as a plaintiff or a defendant.

On several occasions the Constitutional Court has dismissed as inadmissible complaints by detainees whose requests for leave to appear were refused by civil courts. It reasoned that the relevant provisions of the Code of Civil Procedure and the Penitentiary Code did not, as such, restrict a detainee’s access to court. The Constitutional Court has emphasised nonetheless that an imprisoned person should be able to make submissions to a civil court, either through a representative or in any other way provided by law. If necessary, a hearing should be held at the convict’s place of detention, or the court committed to hear the civil case may instruct the court with territorial jurisdiction over the convict’s place of detention to obtain his/her submissions or to take any other procedural steps (decisions 478-O of 16 October 2003, 335-O of 14 October 2004 and 94-O of 21 February 2008).

Under Articles 58 and 184 of the CCP a court may hold a session elsewhere than in a court-house if, for instance, it is necessary to examine evidence which cannot be brought to the court-house.

Article 392 of the CCP contains a list of situations which may justify the reopening of a finalised case on account of newly discovered circumstances. By a ruling of 26 February 2010 the Russian Constitutional Court indicated that this Article should be interpreted as, in principle, allowing a procedure to be launched to have a final judgment re-examined on account of newly discovered circumstances, such as the finding of a violation of the European Convention on Human Rights in a given case by the European Court of Human Rights.


David Thór Björgvinsson;Lech Garlicki;Ledi Bianku;Loukis Loucaides;Nebojša Vučinić;Päivi Hirvelä;Zdravka Kalaydjieva

The applicants are Cypriot nationals. Their names, dates of birth and places of residence are set out in the Annex. They are represented by Mr Christos M. Triantafyllides, Mr Andreas Angelides, Mr Achilleas Demetriades, Mr Achilles Emilianides, Mr Christos Clerides, Ms Kallistheni Demetriou Stivarou, Mr Constantinos Tambourlas and Mr Loukis Loucaides, lawyers practising in Cyprus.

The facts of the case may be summarised as follows.

The applicants stated that they are relatives of 29 Greek-Cypriot men, both civilians and army personnel, who went missing in July-August 1974 following the invasion of northern Cyprus by Turkish armed forces. These men were listed as missing persons, the information being given to the Red Cross and the United Nations.

The respondent Government stated that the relatives of Christakis Contementiotis had already known that he had died at the time of the events in 1974 but that his body could not be recovered due to the conflict. They pointed out that his name was not submitted to the authorities as one of the men who had gone missing.

The remains of the missing men have been found during exhumations carried out by the United Nations Committee for Missing Persons (“CMP”) between 20059. Further details are set out in the Annex.

On 19 March 2011 the lawyer for the applicants in the group of applications ((nos. 7048/08, 4584/10, 5281/08, 4649/10, 5189/10, 6081/10, 7839/10, 4852/05 and 5210/08) landed from Athens at Istanbul international airport for a two-day business and private trip as he had done before. At passport control, he was held up for two hours and then confined to the airport terminal. In the afternoon, after seven hours, his passport was returned and he was put on a plane back to Athens. He was questioned by the Greek police on arrival as the Turkish authorities had described him to the airline and Greek authorities as “unwanted”.


Violation of Art. 5-4;Not necessary to examine Art. 14;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - Convention proceedings

Mr Abed Hussain was born in 1962 and is currently detained in Lindholme prison.

On 12 December 1978, the applicant - then aged 16 - was convicted at Leeds Crown Court of the murder of his younger brother, aged 2. The applicant had inflicted severe injuries on the infant while looking after him. He received a mandatory sentence of detention "during Her Majesty’s pleasure" pursuant to section 53 (1) of the Children and Young Persons Act 1933 (as amended) (see paragraph 23 below). Its effect was to render the applicant "liable to be detained in such a place and under such conditions as the Secretary of State [for the Home Department] may direct".

In passing sentence on the applicant, the judge stated:

"I regard you as someone who has demonstrated himself tobe a cruel and unfeeling young man. I think you are -certainly for the time being - a dangerous person."

The applicant appealed against both his conviction and sentence. The Court of Appeal dismissed his appeal on 5 March 1980.

Mr Hussain was first detained in the youth wing of Liverpool prison and then in a young offenders’ institution before being transferred to an adult prison.

Under the administrative procedures governing such sentences as that received by the applicant, a "tariff" period is set to fix the number of years’ detention necessary to satisfy the requirements of retribution and deterrence (see paragraph 27 below). In this regard, in 1978 the trial judge wrote to the Secretary of State:

"Over the two or three days immediately preceding thebaby’s death, [the applicant] had undoubtedly treated himwith very considerable violence by slapping, kicking andshaking. The baby was covered with over 60 bruises andhis brain and spine were injured. Since [the applicant]denied ever having laid hands on him, it was not possibleto discover why he had acted with such violence. [The applicant] is unquestionably an unscrupulous youngliar, but the most unusual feature of him was hisimpassivity. He demonstrated no feeling whatsoever forhis brother’s injuries and death. This gave me the impression that he is very probably avery dangerous young man who is quite unmoved bybrutality. I am anxious that this aspect of hischaracter should be borne fully in mind whenever thequestion of release arises. He still has three youngsiblings and their safety must be a predominantconsideration. I am deeply concerned at the appearanceof normality this young man gives; it is probably verymisleading. I cannot recommend any period for his detention. It willhave to continue until one can say with reasonablecertainty that maturation has rendered him safe. Thedifficulty is that he is already `old for his years’, asone police officer described him. Maturation hereinvolves much more than simply a young boy growing up.I can do no more than sound this sombre note of warning."

It was not until 1986 that the applicant’s tariff was set, at fifteen years, by the Secretary of State after a confidential process of consultation involving the trial judge and the Lord Chief Justice. In the course of this process, in which the applicant had no sight of any of the documents, the trial judge recommended a period of ten years "in view of the young age of [the] prisoner at the time of the offence"; the Lord Chief Justice agreed but stated that this should be "the absolute minimum". However, the Secretary of State commented: "I cannot accept the judicial tariff as matching the gravity of one of the most appalling offences I have encountered."

He accordingly increased the proposed tariff by five years. The applicant first learnt about these details through a letter from the Home Office of 6 October 1994, sent in accordance with the House of Lords’ judgment of 24 June 1993 (see paragraph 30 below).

In the course of the applicant’s detention the Parole Board (see paragraph 37 below) has so far considered whether or not to recommend the applicant’s release on four occasions.

The first Parole Board review took place in December 1986. The reports of progress were positive and, as later disclosed to the applicant:

"the Local Review Committee [see paragraph 38 below], whofelt that the risk was acceptable, considered Mr Hussain suitable to be given a provisional release date."

The Parole Board did not however recommend the applicant’s release but it did recommend that he be transferred to a less restrictive category C prison with a further review to commence in August 1990. At the time, the applicant did not see any of the reports before the Parole Board and had no opportunity to appear before it.

The second Parole Board review took place in 1990. A Home Office summary of the review, disclosed later to the applicant, stated:

"The Local Review Committee recommended that Mr Hussainshould be given a provisional release date ... The Board did not recommend Mr Hussain’s release, butrecommended his transfer to open conditions with afurther review to commence eighteen months thereafter.However, the Secretary of State rejected the Board’srecommendation and directed that he should move toanother category C prison with a further review tocommence in October 1992."

Again the applicant did not see any of the reports on him and was afforded no hearing before the Parole Board. He was given no reasons for the decisions taken.

In the third review in December 1992, the Parole Board recommended that the applicant be transferred to open conditions with a further review in six months’ time. However, the Secretary of State, in exercise of his statutory powers (see paragraph 29 below), rejected this recommendation, directing that the applicant remain in close conditions with a further review to commence in March 1995. The applicant was only informed in March 1993 that his release had not been recommended and about the date of his next review.

In June 1993, Mr Hussain applied for judicial review (see paragraph 39 below) in respect of the decision communicated in March 1993 on the basis that he had not been shown the reports on him placed before the Board. He relied on the case of Prem Singh (see paragraph 24 below) as establishing that persons detained during Her Majesty’s pleasure had a right at common law to disclosure of reports.

On 13 October 1993, the Parole Board gave the High Court an undertaking to reconsider the applicant’s case immediately and to disclose their case file to him so that he could make informed representations. The applicant withdrew his application for judicial review.

At his most recent review in January 1994, the applicant was shown the reports on him that were before the Parole Board but he was not given an opportunity to appear in person before the Board. Following this review, the Secretary of State accepted the Parole Board’s recommendation to transfer the applicant to open-prison conditions, which transfer took place in February 1994. The Parole Board will again consider the applicant’s case in February 1996.

The applicant has been detained for over seventeen years.

A person who unlawfully kills another with intent to kill or cause grievous bodily harm is guilty of murder. English law imposes a mandatory sentence for the offence of murder: "detention during Her Majesty’s pleasure" if the offender is under the age of 18 (section 53 (1) of the Children and Young Persons Act 1933 (as amended) - see paragraph 23 below); "custody for life" if the offender is between 18 and 20 years old (section 8 (1) of the Criminal Justice Act 1982); and "life imprisonment" for an offender aged 21 or over (section 1 (1) of the Murder (Abolition of Death Penalty) Act 1965).

Mandatory life sentences are fixed by law in contrast to discretionary life sentences, which can be imposed at the discretion of the trial judge on persons convicted of certain violent or sexual offences (for example manslaughter, rape, robbery). The principles underlying the passing of a discretionary life sentence are:

(i) that the offence is grave and

(ii) that there are exceptional circumstances which demonstrate that the offender is a danger to the public and that it is not possible to say when that danger will subside.

Discretionary life sentences are indeterminate so that "the prisoner’s progress may be monitored ... so that he will be kept in custody only so long as public safety may be jeopardised by his being let loose at large" (R. v. Wilkinson [1983] 5 Criminal Appeal Reports 105, 108).

The notion of detention during Her Majesty’s pleasure has its origins in statutory form in an Act of 1800 for "the safe custody of insane persons charged with offences" (Criminal Lunatics Act), which provided that defendants acquitted of a charge of murder, treason or felony on the grounds of insanity at the time of the offence were to be detained in "strict custody until His Majesty’s pleasure shall be known" and described their custody as being "during His [Majesty’s] pleasure".

In 1908, detention during His Majesty’s pleasure was introduced in respect of offenders aged between 10 and 16. It was extended to cover those under the age of 18 at the time of conviction (1933) and further extended to cover persons under the age of 18 at the time when the offence was committed (1948).

The provision in force at present is section 53 (1) of the Children and Young Persons Act 1933 (as amended) ("the 1933 Act") which provides:

"A person convicted of an offence who appears to thecourt to have been under the age of eighteen years at thetime the offence was committed shall not, if he isconvicted of murder, be sentenced to imprisonment forlife, nor shall sentence of death be pronounced on orrecorded against any such person; but in lieu thereof thecourt shall ... sentence him to be detained during HerMajesty’s pleasure and, if so sentenced he shall beliable to be detained in such a place and under suchconditions as the Secretary of State may direct."

In the case of R. v. Secretary of State for the Home Department, ex parte Prem Singh (20 April 1993, unreported) Lord Justice Evans in the Divisional Court held as follows in respect of detention "during Her Majesty’s pleasure":

"At the time of sentencing, the detention orders undersection 53 were mandatory. It is indeed the statutoryequivalent for young persons of the mandatory lifesentence for murder. But the sentence itself is closerin substance to the discretionary sentence of which partis punitive (retribution and deterrence) and the balancejustified only by the interests of public safety when thetest of dangerousness is satisfied. The fact that themandatory life prisoner may be given similar rights asregards release on licence does not alter the fact thatthe mandatory life sentence is justifiable as punishmentfor the whole of its period: see R. v. Secretary of StateEx. p. Doody & Others [1993] Q.B. 157 and Wynne v. UK(E.C.H.R. 1st December 1992). The order for detentionunder section 53 is by its terms both discretionary andindeterminate: it provides for detention `during HerMajesty’s pleasure’... I would decide the present case onthe narrow ground that, notwithstanding Home Office andParole Board practice, the applicant should be regardedas equivalent to a discretionary life prisoner for thepurpose of deciding whether Wilson rather than Paynegoverns his case."

(transcript, pp. 24C-25B)

The court accordingly held that the applicant in the case, detained during Her Majesty’s pleasure, should be afforded the same opportunity as would be given to a discretionary life prisoner to see the material before the Parole Board when it decided whether he should be released after his recall to prison on revocation of his licence.

The Parole Board has changed its policy accordingly.

However, in a statement in Parliament made on 27 July 1993 (see paragraph 32 below), the Secretary of State, Mr Michael Howard, explained that he included in the category of "mandatory life sentence prisoners" those

"persons who are, or will be, detained during HerMajesty’s pleasure under section 53 (1) of the Childrenand Young Persons Act 1933 ..."

In R. v. Secretary of State for the Home Department, ex parte T. and Others [1994] Queen’s Bench 378, 390D, Lord Justice Kennedy in the Divisional Court (with whom Mr Justice Pill agreed) said:

"I see no reason to regard him as having any specialstatus because he was sentenced to detention [during HerMajesty’s pleasure] rather than to life imprisonment,despite what was said by Evans LJ when giving judgment inReg. v. Parole Board, ex parte Singh (Prem)(20 April 1993, unreported). The issues in that casewere very different from those with which we areconcerned. If Hickey had not been sent to hospital hecould hope to benefit from the provisions ofsection 35 (2) of the 1991 Act [on mandatory lifeprisoners] ... It will be recalled that in Hickey’s casethe offence was murder, so the sentence was mandatory notdiscretionary."

On appeal the Court of Appeal stated that in respect of a person sentenced to detention during Her Majesty’s pleasure under section 53 (1) of the 1933 Act for the offence of murder, the relevant provisions on release were those in section 35 (2) of the Criminal Justice Act 1991 (see paragraph 29 below), and not those relating to a discretionary life prisoner (R. v. Secretary of State for the Home Department, ex parte Hickey [1995] 1 All England Law Reports 479, 488).

Persons sentenced to mandatory and discretionary life imprisonment, custody for life and those detained during Her Majesty’s pleasure have a "tariff" set in relation to that period of imprisonment they should serve to satisfy the requirements of retribution and deterrence. After the expiry of the tariff, the prisoner becomes eligible for release on licence. Applicable provisions and practice in respect of the fixing of the tariff and release on licence have been subject to change in recent years, in particular following the coming into force on 1 October 1992 of the Criminal Justice Act 1991 ("the 1991 Act").

Section 61 (1) of the Criminal Justice Act 1967 ("the 1967 Act") provided, inter alia, that the Secretary of State, on the recommendation of the Parole Board and after consultation with the Lord Chief Justice and the trial judge, may "release on licence a person serving a sentence of imprisonment for life or custody for life or a person detained under section 53 of the Children and Young Persons Act 1933". In this respect no difference was made between discretionary and mandatory life prisoners.

By virtue of section 35 (2) of the 1991 Act, persons detained during Her Majesty’s pleasure and those life prisoners who are not discretionary life prisoners (see paragraph 20 above), may be released on licence by the Secretary of State, if recommended to do so by the Parole Board and after consultation with the Lord Chief Justice and the trial judge. The decision on whether to release still lies, therefore, with the Secretary of State.

The Secretary of State also decides the length of a prisoner’s tariff. Subsequently to a House of Lords judgment of 24 June 1993 (R. v. Secretary of State for the Home Department, ex parte Doody [1994] 1 Appeal Cases 531, 567G), the view of the trial judge is made known to the prisoner after his trial as is the opinion of the Lord Chief Justice. The prisoner is afforded the opportunity to make representations to the Secretary of State who then proceeds to fix the tariff. Where the Secretary of State decides to depart from the judicial recommendation he is obliged to give reasons. As a matter of practice the prisoner is informed of the Secretary of State’s final decision.

In the second, post-punitive phase of detention the prisoner knows that "the penal consequence of his crime has been exhausted" (ibid., 557A).

A statement of policy issued by Sir Leon Brittan, then Secretary of State for the Home Department, on 13 November 1983 indicated that release on licence following expiry of the tariff depended on whether the person was considered no longer to pose a risk to the public.

On 27 July 1993 the Secretary of State, Mr Michael Howard, made a statement of policy in relation to mandatory life prisoners, stating, inter alia, that before any such prisoner is released on licence he

"will consider not only, (a) whether the period served bythe prisoner is adequate to satisfy the requirements ofretribution and deterrence and, (b) whether it is safe torelease the prisoner, but also (c) the publicacceptability of early release. This means that I willonly exercise my discretion to release if I am satisfiedthat to do so will not threaten the maintenance of publicconfidence in the system of criminal justice".

In a number of recent court cases involving persons detained during Her Majesty’s pleasure, it has been stated that the correct test for post-tariff detention was to be whether the offender continued to constitute a danger to the public (R. v. Secretary of State for the Home Department, ex parte Cox, 3 September 1991; R. v. Secretary of State for the Home Department, ex parte Prem Singh, 20 April 1993 - cited above at paragraph 24; R. v. Secretary of State for the Home Department, ex parte Prem Singh (no. 2), 16 March 1995).

The 1991 Act instituted changes to the regime applying to the release of discretionary life prisoners following the decision of the European Court of Human Rights in the case of Thynne, Wilson and Gunnell v. the United Kingdom (judgment of 25 October 1990, Series A no. 190-A).

Pursuant to section 34 of the 1991 Act, the tariff of a discretionary life prisoner is now fixed in open court by the trial judge after conviction. After the tariff has expired, the prisoner may require the Secretary of State to refer his case to the Parole Board which has the power to order his release if it is satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined. Pursuant to the Parole Board Rules 1992 which came into force on 1 October 1992, a prisoner is entitled to an oral hearing, to disclosure of all evidence before the panel (see paragraph 37 below) and to legal representation. There is provision enabling a prisoner to apply to call witnesses on his behalf and to cross-examine those who have written reports about him.

For the purposes of the 1991 Act, persons detained during Her Majesty’s pleasure are not regarded as discretionary life prisoners (section 43 (2)).

Section 59 of the 1967 Act set out the constitution and functions of the Parole Board:

"(1) For the purposes of exercising the functionconferred on it by this Part of this Act as respectsEngland and Wales there shall be a body known as theParole Board ... consisting of a chairman and not lessthan four other members appointed by the Secretary ofState.

(4) The following provisions shall have effect withrespect to the proceedings of the Board on any casereferred to it, that is to say

(a) the Board shall deal with the case onconsideration of any documents given to it by theSecretary of State and of any reports it has calledfor and any information whether oral or in writingthat it has obtained; and

(b) if in any particular case the Board thinks it isnecessary to interview the persons to whom the caserelates before reaching a decision, the Board mayrequest one of its members to interview him andshall take into account the report of that interviewby that member ...

(5) The documents to be given by the Secretary of Stateto the Board under the last foregoing subsection shallinclude

(a) where the case referred to the Board is one ofrelease under section 60 or 61 of this Act, anywritten representations made by the person to whomthe case relates in connection with or since hislast interview in accordance with rules under thenext following subsection;

(b) where the case so referred relates to a person recalled under section 62 of this Act, any written representations made under that section."

As to the constitution of the Parole Board, Schedule 2 to the 1967 Act further provides:

"1. The Parole Board shall include among its members

(a) a person who holds or has held judicial office;

(b) a registered medical practitioner who is apsychiatrist;

(c) a person appearing to the Secretary of State tohave knowledge and experience of the supervision orafter care of discharged prisoners;

(d) a person appearing to the Secretary of State tohave made a study of the causes of delinquency orthe treatment of offenders."

The Parole Board always counts among its members three High Court judges, three circuit judges and a recorder. Cases referred to the Board may be dealt with by three or more members of the Board (Parole Board Rules 1967). In practice, the Board sits in small panels, including, in the case of life prisoners, a High Court judge and a psychiatrist. The judges on the Board are appointed by the Home Secretary (section 59 (1) of the 1967 Act) after consultation with the Lord Chief Justice. With the exception of the new rules concerning discretionary life prisoners, similar provisions apply under the 1991 Act.

Under section 59 (6) of the 1967 Act the Secretary of State established for every prison a Local Review Committee with the function of advising him on the suitability for release on licence of prisoners. It was the practice to obtain this assessment before referring a case to the Parole Board. Before the Local Review Committee reviewed a case, a member of the committee would interview the prisoner if he was willing to be interviewed. The first review by the Local Review Committee was normally fixed to take place three years before the expiry of the tariff. Local Review Committees were abolished by the Parole Board Rules 1992. The prisoner is now interviewed by a member of the Parole Board.

Persons serving a sentence of detention during Her Majesty’s pleasure may institute proceedings in the High Court to obtain judicial review of any decision of the Parole Board or of the Secretary of State if those decisions are taken in breach of the relevant statutory requirements or if they are otherwise tainted by illegality, irrationality or procedural impropriety (Council of Civil Service Unions v. Minister for the Civil Service [1984] 3 All England Law Reports 935, 950-51).


Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing);Just satisfaction dismissed (out of time)

András Sajó;Guido Raimondi;Helen Keller;Nebojša Vučinić;Paulo Pinto De Albuquerque;Peer Lorenzen

The applicant was born in 1958 and lives in Bor.

On 26 October 2004 the applicant filed a civil claim against his employer, company Z, seeking the payment of outstanding holiday pay (regres za korišćenje godišnjeg odmora) due for 2002 and 2003, the difference between the salary he had received and the minimum salary payable under collective agreements in force at the company for the period from October 2001 to May 2004, statutory interest and legal costs.

Following a remittal in 2005, on 15 March 2006 the Bor Municipal Court (Opštinski sud) ruled in favour of the applicant. As regards the outstanding holiday pay, the court observed that company Z had not paid the holiday pay due for 2002 and 2003 to any of its employees, as its alleged parent company had been encountering financial difficulties. The court, however, found these facts to be irrelevant to the outcome of the applicant’s claim, as according to the Labour Act and enterprise bargaining agreements in force at the company he had been entitled to holiday pay regardless of the level of his employer’s profits.

On 3 September 2007 the Zaječar District Court (Okružni sud) reversed the part of the Municipal Court’s judgment which concerned holiday pay and legal costs, while upholding the remainder. The District Court based its refusal on the finding, disregarding applicable employment law, that company Z had not paid outstanding holiday pay to any of its employees and therefore that “to accept the applicant’s claim would mean that the applicant would be treated more favourably than his colleagues, who had not received payment of outstanding holiday pay from their employer either”. No further recourse against this judgment was available to the applicant.

It would appear that between 2004 and 2009 a number of the applicant’s colleagues lodged the same or similar claims to those of the applicant with the Municipal Court.

On 28 April and 2 June 2009 the Municipal Court rejected the claims of the applicant’s colleagues for the same reasons as the District Court had in the applicant’s case. However, the Belgrade Court of Appeal, which, following reforms to the judicial system had become the competent appeal court, overturned both judgments on 29 April and 30 June 2010, respectively. In so doing, the appeal court found that the claimants had been entitled to their outstanding holiday pay by applicable domestic law (see paragraphs 10-13 below), finding that the reasons for judgment given by the Municipal Court in their cases were irrelevant and that it had erred in law in rendering the judgments.

Article 90 paragraph 3 stipulated that collective bargaining agreements, labour regulations or employment contracts may provide for pay or benefits to employees over and above the rights set out in the Act.

Pursuant to clause 30a(1.2), an employee shall be entitled to additional pay, including to holiday pay, which shall amount to a monthly average wage in the relevant industrial sector. Holiday pay shall be paid in full to employees who are entitled to 18 days of annual leave, and shall be reduced proportionally if the employee is entitled to fewer days of annual leave.

The text of clause 4(2) of this agreement corresponds to clause 30 of the 2001 Agreement.

The text of clause 116(1) of this agreement corresponds to clause 30 of the 2001 Agreement. Additionally, clause 116(4) provides that in case of its financial inability to pay holiday pay as a lump sum, the employer may pay it in several instalments.


Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time);No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for private life);Pecuniary damage - claim dismissed;Non-pecuniary damage - award

André Potocki;Angelika Nußberger;Ann Power-Forde;Dean Spielmann;Elisabet Fura;Ganna Yudkivska

The applicant was born in 1964 and lived in Donetsk. He died on 13 September 2010.

On 23 November 1998 the applicant sought medical assistance from the Donetsk City Hospital No. 16 (Центральна міська клінічна лікарня № 16 м. Донецька – “the Hospital”), where he was diagnosed as having an acute respiratory disease. He was prescribed out-patient treatment.

On his next visit to the Hospital on 27 November 1998 the applicant was tested for his reaction to a vaccination against diphtheria. The test showed no susceptibility to diphtheria antigens.

On 28 November 1998 the applicant was vaccinated against diphtheria. According to the applicant, the vaccination was contraindicated for him.

On 30 November 1998 the applicant was examined by a doctor, who indicated that the applicant’s state of health had improved and that the treatment had given positive results. He was diagnosed with tracheobronchitis, which was confirmed during his further visits to the doctor on 3, 4 and 7 December 1998.

From 28 December 1998 the applicant spent more than half a year at different medical institutions receiving treatment for a number of chronic diseases (for instance, pancreatitis, cholecystitis, hepatitis, colitis).

On 4 February 1999 the Chief Doctor of the Hospital reprimanded doctor Ya. and nurse Sh. for vaccinating the applicant although he had consistently objected to the vaccination and while he was being treated for an acute respiratory infection. He considered that they had violated the rules concerning vaccinations and ordered them to pass a test on those rules.

On 26 April 1999 the applicant instituted proceedings in the Budyonnovskiy District Court in Donetsk against the local department of public health (Донецький міський відділ охорони здоров’я) and the Hospital, seeking compensation for damage to his health. He alleged that the vaccination on 28 November 1998 had been conducted whilst he was ill and had resulted in him suffering from a number of chronic diseases. He also complained that the vaccine had been of poor quality as it had been uncertified, had expired and had been stored in inappropriate conditions. He complained that the doctors had tried to falsify the relevant medical records and to conceal the negative effects of the vaccination.

Between 30 May and 30 June 2000, 17 July 2000 and 29 January 2001, 2 and 30 January 2002 and 4 March 2002 and 17 February 2003 medical expert examinations were conducted into the applicant’s allegations.

On 2 June 2003 the court found against the applicant. With reference to the conclusions of the medical expert examiners, the court established that the applicant’s diseases had no causal link to his vaccination. It noted that the applicant had not had an allergic reaction or showed other signs that would normally have appeared within several days following the vaccination. The only disease that could be associated with the vaccination was urticaria (commonly known as hives), which the applicant had suffered from more than eight months after the vaccination and which could not therefore have had any causal link to it. The court also established that the applicant had not had any acute symptoms of any disease upon vaccination and therefore that his vaccination had not violated any medical rules. Furthermore, the epidemic situation in the Donetsk region had called for his vaccination against diphtheria. The court noted that no physical force had been applied to the applicant and that, being an adult of sound mind, he could have refused to have the vaccination, as he had done before on several occasions. The court noted that although the vaccination had not been performed in the vaccination room as required by the regulations, it had been conducted by a qualified nurse in a doctor’s office, in a doctor’s presence, with prior verification of the applicant’s reaction to such a vaccination, and it had not caused the applicant to have any negative side-effects. The court also noted that the applicant’s allegations about the quality of vaccine had been speculative and had not been confirmed by any evidence. The court observed that none of the applicant’s diseases had had a causal link to the vaccination and that the applicant had spent so much time in hospital because he had been attempting to obtain disabled status. The court also examined the applicant’s allegations about the alleged falsification of medical records and rejected them as unsubstantiated.

On 19 March 2008 and 22 August 2008 respectively the Donetsk Regional Court of Appeal and the Supreme Court upheld the above judgment.

On 13 September 2010 the applicant died of a heart attack. By letter of 26 September 2011 the applicant’s mother informed the Court of her wish to pursue the application.

The relevant section of the Act reads as follows:

“Preventive vaccinations against tuberculosis, polio, diphtheria, whooping cough, tetanus and measles are compulsory in Ukraine.

Groups of the population and categories of employees subject to preventive vaccination, including those which are compulsory, and the procedure for and scheduling of their implementation shall be specified by the Ministry of Health of Ukraine ...”

These guidelines, approved by the Ministry of Public Health of Ukraine on 25 January 1996, provide for the organisation of vaccinations, set out a list of contraindications and side-effects and the procedure for informing the appropriate parties of any negative side-effects after vaccination.

On 19 March 1997 the Parliamentary Assembly of the Council of Europe adopted Recommendation 1317 (1997) on vaccination in Europe. The relevant part of this recommendation states:

The recent diphtheria epidemic in some of the newly independent states is an example of the risks confronting us. Tens of thousands of cases have been reported since the outbreak of the epidemic in 1990, and thousands have died of a disease generally believed to have been wiped out. Other pockets of infection may attain epidemic proportions at any time: poliomyelitis, tuberculosis, tuberculous meningitis, pertussis, etc.

The diphtheria epidemic very clearly demonstrated that health risks could not be contained locally. With millions of people now free to travel from one country to another, it has not been possible to halt such epidemics. The eruption of ethnic conflicts producing mass movements of refugees has created new problems in this respect, and the austerity imposed by economic reforms has worsened the situation.

The Assembly therefore recommends that the Committee of Ministers invite member states:

i. to devise or reactivate comprehensive public vaccination programmes as the most effective and economical means of preventing infectious diseases, and to arrange for efficient epidemiological surveillance;

ii. to grant increased assistance as a matter of urgency, internationally co-ordinated through the World Health Organization (who) and Unicef in particular, to countries suffering from the diphtheria epidemic, in order to supply adequate quantities of vaccines and medicines and train a medical staff qualified to handle and administer the vaccine with the following aims:

a. to achieve a high immunisation level among the population;

The Assembly furthermore invites the Committee of Ministers:

i. to define a concerted pan-European policy on population immunisation, in association with all partners concerned, for example who, Unicef and the European Union, aimed at the formulation and observance of common quality standards for vaccines, and to ensure an adequate supply of vaccines at a reasonable cost ...”