Preliminary objection joined to merits and dismissed (non-exhaustion of domestic remedies);Violation of Art. 2 (substantive aspect);Violation of Art. 2 (procedural aspect);Violation of Art. 3 (substantive aspect);Violation of Art. 5;Violation of Art. 13+2;Non-pecuniary damage - award

Anatoly Kovler;Elisabeth Steiner;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Peer Lorenzen

The applicant was born in 1959 and resides in the village of AchkhoyMartan in the Chechen Republic. She is the mother of Mr Timur Beksultanov, born in 1980.

In the applicant’s submission her family members, including Timur Beksultanov, were victims of continuing persecution on the part of the domestic authorities. In July 2003 Timur Beksultanov even had to quit his job as a coach in the Achkhoy-Martan local sports centre. Furthermore, on several occasions (the applicant did not furnish the exact dates) servicemen of the federal forces allegedly burst into the applicant’s house, searched it and intimidated the applicant and members of her family.

On 7 July 2003 the prosecutor’s office of the Achkhoy-Martan District (“the district prosecutor’s office”) opened a criminal case against Timur Beksultanov under Articles 205 § 2 (terrorism), 208 § 2 (participation in an illegal armed group), 222 § 2 (aggravated possession of weapons) and 317 (assault on a law-enforcement officer) of the Criminal Code (“CC”). The case file was assigned the number 44050. It appears that Timur Beksultanov was put on a list of wanted persons in connection with those proceedings.

According to the applicant, Timur Beksultanov denied the charges against him and intended to appear at the district prosecutor’s office.

On 2 October 2004 Mr I.M., an officer of the police special-purpose squad (“OMON”), came to the applicant’s house and asked Timur Beksultanov to follow him to an unidentified destination “to explain that [Timur Beksultanov] was not implicated in any terrorist activities”. The two men got into I.M.’s vehicle, a VAZ-2107, and drove off. The applicant memorised only a sequence of three figures from the car number plate, namely “940”.

The following account of the events is based on the information allegedly obtained by the applicant from two persons, one of them being identified by her as “a shepherd” and another as “a villager of AchkhoyMartan”. The applicant did not indicate the names of those witnesses or furnish copies of their statements. In her submission, the witnesses did not wish to give their names because they feared reprisals.

According to the applicant, one of the witnesses told her that at about 11 a.m. on 2 October 2004 he had seen a convoy of several armoured personnel carriers (“APCs”) and UAZ vehicles stationed at a crossroads between three villages, where one of the roads led to Shaami-Yurt. There had been numerous servicemen near the vehicles. A VAZ-2107 vehicle had approached the convoy. Timur Beksultanov and I.M. had got out of the vehicle and the servicemen had requested their identity papers. Having checked them, the servicemen had twisted Timur Beksultanov’s arms and had started beating him up. When he had fallen on the ground, the witness had heard several shots and had seen that Timur Beksultanov was wounded in his thigh. Immediately thereafter an officer had approached Timur Beksultanov and had shot him in the shoulder. After that the servicemen had put Timur Beksultanov in an APC and had driven off to an unknown destination. The servicemen had not done anything to I.M., who had got back inside his vehicle and had driven away. According to the applicant, the witness had not been able to hear everything which had occurred at the crossroads but had clearly seen what had been going on there.

On 2 October 2004, several hours after her son’s abduction, the vehicle in which he had been placed by his abductors, was stationed at the Achkhoy-Martan Department of the Interior (“the ROVD”).

The applicant learnt about the apprehension of Timur Beksultanov from the relatives of I.M. on 3 October 2004.

According to written statements by Zh.E., M.G., Z.M. and R.B., dated 20 December 2004 and furnished by the applicant, those persons submitted that on 2 October 2004 they had seen Timur Beksultanov get inside a vehicle together with a man who introduced himself as I.M., an OMON officer. I.M. had picked up Timur Beksultanov at the applicant’s house to accompany him to the law-enforcement authorities because the former wished to surrender in connection with the criminal charges against him. Zh.E., M.G., Z.M. and R.B. stated that on the following days they had learnt that I.M. had taken the applicant’s son into an ambush to deliver him to the authorities.

The applicant has had no news of Timur Beksultanov since 2 October 2004.

The Government submitted that the domestic proceedings had obtained no evidence that Timur Beksultanov had been abducted by State agents.

On 8 October 2004 the applicant complained in writing about the abduction of Timur Beksultanov to various State bodies, including the President of the Commission for Prisoners and Missing Persons with the President of the Russian Federation, the military prosecutor’s office of the North Caucasus Military Circuit, the military prosecutor’s office of the United Group Alignment (UGA), the Prosecutor of the Chechen Republic and the district prosecutor’s office. In those complaints she submitted that, at about noon on 2 October 2004, armed men who had been wearing camouflage uniforms and had arrived in several APCs, military UAZ vehicles and a private vehicle, had stopped I.M.’s vehicle with plate no. “940” and had taken away Timur Beksultanov. The abduction had occurred at the crossroads between three villages, where one of the roads led to Shaami-Yurt. In her complaints the applicant also claimed that, according to I.M., as of 6 October 2004 her son was still alive and was held in Khankala.

On 25 October 2004 the prosecutor’s office of the Chechen Republic (“the republican prosecutor’s office) forwarded the applicant’s complaint about the abduction of Timur Beksultanov for examination to the district prosecutor’s office.

On 5 November 2004 the Office of the Ombudsman of the Russian Federation forwarded the applicant’s complaint about “the abduction of T. Beksultanov by officers of the special-purpose Department of the Sunzhenskiy Department of the Interior” to the Prosecutor General’s Office.

On 9 November 2004 the applicant re-submitted her complaint of 8 October 2004 to the same State authorities.

On 1 December 2004 the republican prosecutor’s office replied to the applicant that her complaint about the abduction of Timur Beksultanov had been appended to case file no. 44050 opened against him in July 2003. She was also notified that Timur Beksultanov had been put on a federal list of wanted persons and that measures aimed at establishing his whereabouts were under way.

On 3 December 2004 the military prosecutor’s office of the North Caucasus Circuit forwarded the applicant’s complaint about the abduction of her son to the UGA military prosecutor’s office and advised the applicant that she was to address all her queries to that body.

On 21 December 2004 the Ministry of the Interior of the Chechen Republic notified the applicant that they had forwarded her complaint about the abduction of her son to the district prosecutor’s office.

On 10 February 2005 the prosecutor’s office of military unit 20102 informed the applicant that they were verifying the information contained in her complaint about the abduction of her son and that they would notify her about their decision in due course.

On 12 February 2005 the Chechen Department of the Federal Security Service (“the Chechen Department of the FSB”) informed the applicant that they had forwarded her complaint about the abduction of Timur Beksultanov to the district prosecutor’s office for examination.

On 16 February 2005 the Chechen Department of the FSB replied to the applicant’s repeated complaint that on 2 October 2004 they had not carried out any special operations in the Achkhoy-Martanovskiy District. The letter also stated that the department officials had not arrested Timur Beksultanov.

By a letter of 4 March 2005 the prosecutor’s office of military unit no. 20102 notified the applicant that their inquiry had not established the implication of servicemen of the federal forces in the abduction of Timur Beksultanov. The letter also pointed out that the applicant’s complaint about the apprehension of Timur Beksultanov had been appended to case file no. 44050 opened against him on 7 July 2003 and in connection with which he had been put on the list of wanted persons. On 19 February 2005 the preliminary investigation in case no. 44050 had been adjourned owing to the fact that the whereabouts of Timur Beksultanov remained unknown. The district prosecutor’s office was taking investigative steps to establish his whereabouts with a view to prosecuting him for the crimes of which he was suspected.

On 17 May 2005 the applicant’s representatives wrote to the prosecutor of the Achkhoy-Martan District, enquiring, among other things, whether the district prosecutor’s office had launched an investigation into the abduction of Timur Beksultanov and what steps it had taken to establish his whereabouts. They also requested that the applicant be provided access to the relevant documents.

On 29 December 2005 the applicant’s representatives complained to the republican prosecutor’s office that they had not received a reply to their letter of 17 May 2005. It appears that their repeated query was also left without reply.

On 23 January 2007 the applicant’s representatives wrote to the prosecutor of the Achkhoy-Martan District and the republican prosecutor’s office, reiterating the questions raised in their letters dated 17 May and 29 December 2005.

On 7 February 2007 the republican prosecutor’s office replied to the applicant’s representatives that Timur Beksultanov had been put on the federal list of wanted persons in connection with criminal case no. 44050. The investigators of that criminal case had verified the applicant’s version that her son had been abducted by unidentified persons on 2 October 2004. However, apart from the applicant’s own statement, no objective evidence had been obtained to the effect that her son had, indeed, been abducted. At the same time, the investigators had sufficient reasons to believe that the applicant was deliberately complaining about the abduction of Timur Beksultanov in order to shield him from the criminal responsibility for the crimes he had committed.

On 25 May 2009 the applicant wrote to the head of the investigating department of the investigating committee with the Prosecutor’s Office in the Chechen Republic. She reiterated the circumstances of her son’s disappearance and requested to be informed whether the authorities had opened an investigation into his disappearance and what steps they had taken to elucidate it.

On 24 September 2009 the Chief Military Prosecutor’s Office replied to the applicant that they had forwarded her complaint about the abduction of her son to the military prosecutor’s office of the United Group Alignment (“the UGS prosecutor’s office”).

By a letter of 6 October 2009 the district prosecutor’s office informed the applicant’s husband that they had received the complaint about the abduction of his son. The letter stated that Timur Beksultanov was being searched for on suspicion of having committed a number of serious crimes, in connection with which criminal proceedings had been instituted against him. The authorities were carrying out unspecified measures to examine the submissions concerning Timur Beksultanov’s allegedly unlawful arrest.

The Government submitted that the domestic authorities had not opened a separate investigation into the disappearance of Timur Beksultanov because he had been placed on a wanted list in connection with the criminal proceedings in case no. 44050 instituted against him. All the applicant’s submissions concerning his alleged abduction had been examined within the framework of the criminal proceedings in case no. 44050. The Government refused to provide the Court with a full copy of criminal case file no. 44050, without providing an explanation. The information provided by the Government and contained in the documents submitted by them may be summarised as follows.

On 6 July 2003 the district prosecutor’s office instituted criminal proceedings against a number of persons, including Timur Beksultanov, on suspicion of participation in illegal armed groups, assault on officers of lawenforcement authorities and possession of arms (Articles 317, 208 § 2 and 222 § 2 of the CC). The decision stated, in particular, that on 5 July 2003 officers of the Achkhoy-Martan police department had carried out an operation aimed at arresting members of illegal armed groups. In the course of the operation they had stopped a vehicle with Timur Beksultanov, R.K. and U.S. inside. R.K. had opened fire on the police officers, had wounded one of them and had been killed in the ensuing skirmish. The police officers had arrested U.S., whilst Timur Beksultanov had managed to escape. The case file was assigned the number 44050.

On 8 July 2003 a further criminal case was opened against Timur Beksultanov and R.K. under Article 317 of the CC on suspicion of an armed assault on a police officer, who had been severely wounded. The case file was given the number 44052.

On 21 July 2003 investigators of the district prosecutor’s office searched the applicant’s home in connection with the proceedings in case no. 44050. The related decision stated that there was information that Timur Beksultanov was hiding from investigators at his mother’s home at 23 Budennogo Street in Achkhoy-Martan. According to the search record of the same date, 400 grams of trotyl were discovered at the applicant’s home.

Between 21 July and 20 August 2003 a number of local police departments and other law-enforcement authorities were instructed to search for Timur Beksultanov in connection with the criminal proceedings against him. It transpires that in the same time span a number of expert examinations concerning the weapons seized from the crime scenes and the trotyl found at Timur Beksultanov’s home were conducted. Further expert examinations with a view to establishing the severity of the injuries inflicted on the victims were carried out; the victims and some witnesses to the assaults were interviewed in the same period of time.

On 6 October 2003 criminal cases nos. 44050 and 44052 were joined; the new case file was assigned the number 44050.

On 29 November 2003 Timur Beksultanov’s name was put on a wanted list as a person suspected of a number of crimes; the lawenforcement authorities of the Achkhoy-Martan district were instructed to search for him.

Between 29 November and 3 December 2003 the investigators interviewed a number of witnesses about the circumstances of the crimes imputed to the applicant’s son.

On 5 December 2003 the criminal case against U.S. was severed from the proceedings in case no. 44050.

On 6 December 2003 the investigation in case no. 44050 was suspended.

It appears that between December 2003 and September 2004 the investigators instructed a number of law-enforcement authorities to search for Timur Beksultanov but their requests yielded no results.

On 10 September 2004 the district prosecutor’s office received yet another criminal case file no. 38567 opened against Timur Beksultanov on 19 April 2004 on suspicion of unlawfully selling a pistol to a third person. On 10 September 2004 case file no. 38567 was joined to case file no. 44050; the new case file was assigned the number 44050.

On 15 September 2004 the investigation in case no. 44050 was suspended owing to its failure to locate Timur Beksultanov.

On 19 January 2005 the investigation in case no. 44050 was resumed. The decision stated, in particular, that on 17 October 2004 the district prosecutor’s office had received the applicant’s complaint that on 2 October 2004 persons in camouflage uniforms had arrested Timur Beksultanov at the “Kavkaz” highway near the Shaami-Yurt woodland and had taken him to an unknown destination. It further stated that the applicant’s submissions were to be examined and that operational and search measures aimed at locating Timur Beksultanov were to be activated.

On 26 January 2005 the district prosecutor’s office instructed its counterparts and departments of the interior in the Chechen Republic and other regions of Russia to inform it whether they had arrested the applicant’s son, held him in detention or otherwise had any information on his whereabouts. They were also requested to ensure that the search for Timur Beksultanov be activated. It appears to follow from the replies of the relevant authorities, dated between February and May 2005, that those measures yielded no results and that no relevant information was obtained following the investigators’ request.

On an unspecified date in January 2005 the investigators interviewed the applicant. Her interview record, in so far as relevant, reads as follows:

“... [Timur Beksultanov] had worked as a coach at the local school before 2003. In 2003 I learnt that he had a pistol. He explained to me that he needed it for self-defence ... Some time later our close relative M.B. attempted to kill his sister A.B., who was allegedly leading an immoral life ... Subsequently we heard rumours that my son had given the pistol to M.B.

Several days later police officers stopped a car with my son and two other persons inside to arrest them. My son managed to escape but they had seized his passport and pistol. One of the persons in the car had opened fire on the policemen and was shot dead. After that the authorities had started persecuting our family. On several occasions persons in camouflage uniforms and masks burst into our house, looking for [Timur Beksultanov], whose name had by that time been placed on a wanted list.

On several occasions I tried to persuade him to surrender but he was afraid of getting a long prison term or disappearing ...

Until autumn 2004 [Timur Beksultanov] had succeeded in hiding from authorities. However, at some point I talked him into surrendering and he promised to do so by 7 October 2004.

At about 11 a.m. on 2 October 2004 [Timur Beksultanov] left home together with I.M., an OMON officer. They went to Grozny in I.M.’s silvery VAZ-2109 vehicle with licence plate containing figures “904” [sic]. [Timur Beksultanov] promised me that he would return ... that evening, but he did not return.

On 3 October 2004 an unknown man came to my house and told me that Timur had been arrested. He explained that on 2 October 2004 he had taken his cattle to a river not far from Shaami-Yurt, close to the road between Katyr-Yurt and Shaami-Yurt. There he had seen a number of military vehicles, including several APCs, military UAZ vehicles and a UAZ-469 vehicle. One of the APCs had the licence plate number “E-422”. The vehicles had been stationed at a crossroads. The man had then seen a silvery VAZ-2109 vehicle move in the direction of Shaami-Yurt. When the VAZ2109 had approached the military vehicles, they encircled it and shots had been fired. One of the men from the VAZ-2109 vehicle, who had been beaten up, had been placed in a UAZ vehicle and the other had been taken by his hands and feet and thrown in an APC, following which the military vehicles had driven off in the direction of Achkhoy-Martan through the village of Katyr-Yurt. The man had heard that the call sign of the servicemen had been “Falcon”. During the events described by him, the man had hidden in the bushes by the road. ... He refused to give his name or to testify before any law-enforcement authorities. According to the man, one of the APCs had white colouring, from beneath which green colour could be seen. When the servicemen had taken off, they had left the VAZ-2109 vehicle behind.

Following that we contacted the authorities and started searching for our son on our own on the outskirts of the village of Shaami-Yurt; ... the villagers told us that they had seen military vehicles and had heard the shooting but when we asked them to give their names, they refused and stated that they would not testify before any lawenforcement authorities. On the second day of our search I learnt that the vehicle in which my son had gone to Grozny together with I.M. had been brought to the local ROVD by police officer D. on the order of the head of the [Achkhoy-Martan] ROVD. Some time later I learnt that that vehicle had been transferred to the Sunzhenskiy ROVD. I also learnt that after a while I.M. was released and that he started working [in the police] again. I also learnt that during his arrest my son had been wounded in the right side of the chest and in the right thigh. I don’t know if he is alive or not. There were many rumours about my son’s placement in various power structures of the FSB in Khankala; I mentioned all that information in my complaints to the authorities.”

On 1 February 2005 the investigator in charge of case no. 44050 instructed the Achkhoy-Martan police to examine the applicant’s submissions concerning the abduction of her son by, in particular, identifying and interviewing any witnesses to his apprehension (particular attention was to be paid to persons residing in the vicinity of the crossroads between Shaami-Yurt and the “Kavkaz” motorway).

It appears that following the investigator’s instructions the police interviewed five residents of Shaami-Yurt; they all stated that they did not know anything about the abduction of the applicant’s son.

On 27 June and 9 July 2005 a number of law-enforcement authorities forwarded to the district prosecutor’s office the applicant’s further complaints about the abduction of her son by camouflaged armed men and instructed the latter body to examine her submissions and to inform her of any decisions taken by 20 July 2005.

On an unspecified date in 2005 the head of the criminal police of the ROVD Mr V.K. issued a certificate (справка), which, in so far as relevant, reads as follows:

“The ROVD has operational information [оперативная информация] to the effect that on 3 October 2004 unidentified officers of security forces stopped on the ‘RostovBaku’ motorway a civilian vehicle in which, according to the available sources, Timur Beksultanov, born in 1980, residing at 25 Budennogo Street, Achkhoy-Martan, was found. The ROVD received no complaints from the relatives of [Timur Beksultanov] about his arrest or abduction. The Achkhoy-Martan ROVD has no information on ‘Akhmed’, who had been arrested together with [Timur Beksultanov]. There is information that military armoured vehicles were used during [Timur Beksultanov’s] arrest. There is no information on Beksultanov’s ensuing whereabouts or the persons who had arrested him.”

On 19 February 2005 the district prosecutor’s office suspended the investigation in case no. 44050, owing to its failure to find Timur Beksultanov. By the same decision the district prosecutor’s office instructed the ROVD to continue carrying out operational and search measures aimed at locating Timur Beksultanov.

The investigation in case no. 44050 is still pending.

For a summary of the relevant domestic law see Akhmadova and Sadulayeva v. Russia (no. 40464/02, §§ 67-69, 10 May 2007).


Violation of Art. 5-1-a;Not necessary to examine Art. 6-1 and 6-3

Javier Borrego Borrego;Karel Jungwiert;Margarita Tsatsa-Nikolovska;Mark Villiger;Peer Lorenzen;Renate Jaeger;Volodymyr Butkevych

The applicant, a member of the Civil Guard (Guardia Civil), was born in 1969 and lives in Valencia. At the material time he was stationed at the Gijón headquarters and had been on sick leave since 5 January 1998.

On 16 February 1998 he was informed that one of his close relatives had been taken seriously ill. After notifying the duty officers, he set out the same morning for his parents’ home in Tuy (Pontevedra), where he stayed until 24 February 1998.

On 18 February 1998 members of the Tuy Civil Guard called at his parents’ home to check that he was there. On the same day a sergeant from the same garrison rang the family home in a further check.

On 24 February the applicant rejoined his unit in Gijón.

On 28 February 1998 the applicant was informed by a lieutenant-colonel in the Civil Guard that disciplinary proceedings had been brought against him for a minor breach of regulations, namely absence from his unit without prior leave.

On 20 March 1998 the applicant’s superior imposed a disciplinary penalty on him consisting of six days’ house arrest pursuant to sections 7(27) and 10 of Law no. 11/1991 of 17 June 1991.

Later that day the applicant applied for a writ of habeas corpus. His application was dismissed by León military judge no. 43 on 23 March 1998. However, the judge stated in his decision that, since the applicant was on sick leave, the restrictions should be relaxed to allow him to leave the house for medical reasons, to purchase necessities and to attend religious services should he wish to do so.

The applicant lodged two internal appeals with Gijón headquarters against the decision of 20 March 1998. These were dismissed in two decisions of 11 May and 15 June 1998.

Subsequently, on 1 July 1998, the applicant lodged an appeal with the Corunna Territorial Military Court in which he alleged that he had been wrongly deprived of his liberty and relied, inter alia, on Articles 17 (right to liberty) and 24 (right to a fair trial) of the Constitution. He argued that the decision to place him under house arrest had infringed his right to liberty (Article 17 § 1 of the Constitution) as in practice it entailed an actual deprivation of liberty.

He also complained that the decision to deprive him of his liberty had failed to take into account the rule that penalties should not affect service and gave no indication as to how the sentence was to be served, adding that, as he was on sick leave, he had been forced to stay at home for the duration of the sentence.

In his observations, State Counsel asked for the appeal to be dismissed.

The prosecutor submitted in his observations that there had been a violation of the right to liberty (Article 17 § 1 of the Constitution) on account of the failure to determine the conditions of the applicant’s arrest. In particular, there had been no decision on how the sentence was to be served, how its execution was to be supervised or whether it was reasonable. He asked the Military Court to find in favour of the applicant.

In a judgment of 27 July 1999, the Corunna Territorial Military Court dismissed the appeal and upheld the decision of 20 March 1998 and those of 11 May and 15 June 1998. It ruled that it was unnecessary to include the words “without affecting service” in the administrative order depriving the applicant of his liberty as this was inherent in the nature of the penalty for what was only a minor breach of the regulations.

Pointing out that, in the light of the Constitutional Court’s case-law, house arrest constituted not merely a restriction but an actual deprivation of liberty, the Military Court noted that by virtue of Article 17 § 1 of the Constitution there could be no deprivation of liberty other than in the circumstances and manner prescribed by law and that the disciplinary regime applied in the applicant’s case was founded on a basic law (Law no. 11/1991 of 17 June 1991) which permitted custodial sentences and designated the authorities empowered to impose such sentences and the procedure to be followed. As the military judge had stated when dismissing the application for a writ of habeas corpus, the applicant had been sentenced by the competent authority within the bounds fixed by law to a penalty prescribed by law in accordance with the established procedure. As to the complaint under Article 24 of the Constitution, the applicant had received a fair trial attended by all the necessary safeguards.

The applicant appealed on points of law to the Military Division of the Supreme Court, which dismissed his appeal in a judgment of 30 May 2000. It accepted the applicant’s submission that the words “without affecting service” were required in all orders for house arrest for minor breaches of the regulations so as to avoid restrictions of liberty becoming deprivations of liberty. However, it considered that the additional words had not been necessary in the applicant’s case as he was on sick leave.

The Supreme Court noted that the Constitutional Court had already considered the question of “house arrest” and ruled that it constituted an actual deprivation, not merely a restriction, of liberty, although that legal distinction had no bearing on the legitimacy of house arrest because, by virtue of Article 25 § 3 of the Constitution, military authorities, unlike their civilian counterparts, were empowered to impose penalties entailing deprivation of liberty. The Supreme Court consequently concluded that there had been no violation of Article 17 § 1 of the Constitution.

With regard to the applicant’s complaint under Article 24 of the Constitution of a serious procedural defect due to a failure to give reasons for the decisions, the Supreme Court found that the impugned judicial decision contained sufficient reasons and was not arbitrary.

The applicant then lodged an amparo appeal with the Constitutional Court on the basis of Article 17 § 1 of the Constitution (right to liberty) and Article 5 § 1 of the Convention. In a decision of 30 October 2000, which was served on 16 November 2000, the Constitutional Court dismissed the appeal for want of a constitutional basis, finding that the impugned decisions contained sufficient reasons and were not arbitrary. It stated:

“The appellant’s amparo complaints – that house arrest violated his right to liberty (Article 17 § 1 of the Constitution) as it is not a prescribed penalty for members of the Civil Guard such as the appellant who are members of the security, not the armed, forces and that the procedure for imposing such a deprivation of liberty was not complied with – are manifestly ill-founded. The penalty for minor breaches of the regulations is laid down in Basic Law no. 11/1991 and was imposed in accordance with the statutory procedure, which is different from the procedure applicable to confinement in a disciplinary institution. Accordingly, neither the decisions imposing the penalty nor the military courts, which found that the penalty was in accordance with the law, have been guilty of any constitutional violation of the ordinary law.

The same applies to the allegations by the applicant of a violation of Article 5 § 1 of the Convention. He maintained that the Spanish State’s reservation in respect of that provision cannot be applied to him as a member of the security forces because Basic Law no. 11/1991 defines the disciplinary regime applicable to the Civil Guard as being that of an armed military establishment (section 1).”

“Everyone shall have the right to liberty and security. No one may be deprived of his or her liberty other than in accordance with the provisions of this Article and in the circumstances and manner provided by law.”

By an instrument dated 26 September 1979, Spain ratified the Convention subject to a reservation under former Article 64 of the Convention with respect to Articles 5 § 1 and 6 § 1 to the extent to which they might be incompatible with the provisions concerning the disciplinary regime of the armed forces set out in Chapter XV of Part II and Chapter XXIV of Part III of the Code of Military Justice.

The Code of Military Justice was repealed and replaced by Basic Law no. 12/1985 of 27 November 1985 on the disciplinary regime of the armed forces, which came into force on 1 June 1986 and applies to both the Civil Guard and the armed forces.

When that change was made, the Permanent Representative of Spain at the Council of Europe declared on 28 May 1986:

“At the time of deposit of the instrument of ratification of the Convention for the Protection of Human Rights and Fundamental Freedoms, on 29 September 1979, Spain formulated a reservation to Articles 5 and 6 to the extent to which those Articles might be incompatible with the provisions of the Code of Military Justice – Chapter XV of Part II and Chapter XXIV of Part III – concerning the disciplinary regime of the armed forces.

I have the honour to inform you, for communication to the Parties to the Convention, that these provisions have been replaced by Basic Law no. 12/1985 of 27 November – Chapter II of Part III and Chapters II, III and IV of Part IV – on the disciplinary regime of the armed forces, which will come into force on 1 June 1986.

The new legislation amends the former provisions by reducing the duration of the sanctions imposing deprivation of liberty which can be applied without judicial intervention by increasing the guarantees of persons during the preliminary investigation.

Spain confirms nevertheless its reservation to Articles 5 and 6 to the extent to which those Articles might be incompatible with the provisions of Basic Law no. 12/1985 of 27 November – Chapter II of Part III and Chapters II, III and IV of Part IV – on the disciplinary regime of the armed forces, which will come into force on 1 June 1986.”

“Under the supreme command of the King, the armed forces, composed of the army, the navy and the air force ...”

Basic Law no. 12/1985, whose entry into force was notified to the Council of Europe (see Part B above), was expressly repealed by Basic Law no. 8/1998 of 2 December 1998 on the disciplinary regime of the armed forces.

“The State security forces ... are composed of:

(a) the police force, which is an armed civil institution ...

(b) the Civil Guard, which is an armed military institution ...”

“(1) By reason of its status as an armed military institution, the Civil Guard shall be subject to specific rules in disciplinary matters ...”

“... the disciplinary rules currently [in 1989] applied to the Civil Guard are those applicable to the armed forces. However, this arrangement is only operative ‘until specific rules are issued’ and the legislation contemplated in section 15(1) of Basic Law no. 2/1986 and prior to that in section 38(2) of Basic Law no. 6/1983 cannot be left in abeyance indefinitely by allowing the transitional application of the military disciplinary regime to continue for an indefinite period ...”

Further to the Constitutional Court’s judgment no. 194/1989 of 16 November 1989 (see section D.2 above), Basic Law no. 11/1991 of 17 June 1991 on the disciplinary regime of the Civil Guard was passed “to fulfil the legislative commitments and constitutional requirements adequately and without delay in order to ensure the proper functioning of the Civil Guard in the service of society” (explanatory note).

The explanatory note to Law no. 11/1991 also states:

“... owing to the nature of the Civil Guard, an armed military institution, and therefore to the need for it to have its own disciplinary regime distinct from that of other State security forces, the application of the armed forces’ regime to the Civil Guard must, as the Constitutional Court indicated in its judgment of 16 November 1989, be regarded as a purely temporary arrangement.

The Constitutional Court stated that this situation, which is permissible for a transitional period, cannot continue permanently with the Civil Guard being bound by the rules applicable to the armed forces until specific rules or arrangements are put in place. In the same judgment, the Constitutional Court indicated that the establishment of disciplinary rules specific to the Civil Guard must be a priority objective that cannot remain in abeyance indefinitely and that it is for the legislature ... to clarify the imprecision in the legislation concerning the disciplinary regime of the Civil Guard ...”

The relevant provisions of Law no. 11/1991 read as follows:

“Minor breaches of the regulations are:

(27) All breaches not mentioned in previous legislation that constitute a minor breach of the duties imposed by the provisions governing the activities of the Civil Guard.”

“The penalties which may be imposed for minor breaches are:

– an administrative reprimand (administrative admonishment),

– loss of between one and four days’ leave,

– house arrest of between one and thirty days.”

“House arrest of between one and thirty days consists of a restriction of liberty requiring the offender to live at home throughout the stipulated period. He or she may take part in the activities of his or her unit and shall remain at home for the rest of the time.”

“Disciplinary penalties shall be enforceable immediately and the lodging of an internal or judicial appeal shall have no suspensive effect.”

“... the Constitutional Court must point out that house arrest constitutes a genuine deprivation, not simply a restriction, of liberty, so that one day’s house arrest would constitute a violation of personal liberty contrary to Article 17 § 1 of the Constitution, which authorises deprivation of liberty only where prescribed by law.”

In conclusion, the Assembly considers it advisable and even necessary that the number of reservations made in respect of Council of Europe conventions be considerably reduced. It accordingly recommends that the Committee of Ministers,

A. with regard to Council of Europe conventions which have already been concluded:

i. invite member States to make a careful review of their reservations, withdraw them as far as possible and make a reasoned report to the Secretary General if certain reservations are maintained;


No violation of Art. 8 on account of restrictions on visits by family;Violation of Art. 8 on account of censorship of correspondence;Violation of Art. 13;Non-pecuniary damage - finding of violation sufficient

In a judgment delivered by the Marsala District Court on 21 December 1992 the applicant was sentenced to seven years' imprisonment and to payment of a fine, inter alia for drug trafficking and membership of a Mafia-type organisation. On 23 November 1993 he was extradited from Switzerland in order to serve his sentence. He was subsequently held in Como Prison. In a judgment of 6 March 1995, deposited with the registry on 30 May 1995, the Palermo Court of Appeal acquitted him of two charges and reduced his sentence to five years' imprisonment. The applicant lodged an appeal on points of law on 13 July 1995. That appeal was dismissed in a judgment of 26 January 1996.

On 18 January 1995 the judge at Caltanissetta District Court responsible for preliminary inquiries issued a warrant to have the applicant brought before him immediately on suspicion of the murder of an officer of the State legal service; the applicant was served with that warrant on the same day. The applicant was acquitted by the Caltanissetta Assize Court in June 1998. The proceedings are apparently still pending.

In further proceedings against the applicant for membership of a Mafia-type organisation and other offences linked with drug trafficking, he was acquitted of the first charge by the Trapani Assize Court in a judgment of 30 January 1999.

On 26 May 1995, in another set of proceedings before the Marsala District Court, the applicant was sentenced to seventeen years' imprisonment, inter alia for conspiracy to engage in international drug trafficking. In a judgment of 16 April 1997 the Palermo Court of Appeal acquitted the applicant of one charge and reduced the sentence for the other charges to ten years' imprisonment. An appeal on points of law by the applicant was dismissed in a judgment of 4 December 1998, deposited with the registry on 25 February 1999.

The applicant is serving a fourteen-year prison term to which he was sentenced by the Palermo Court of Appeal for false imprisonment, among other offences.

By a decree of 26 November 1993 the Minister of Justice ordered that the applicant should be subject to the special prison regime for one year. This decree was grounded on public order and security considerations given the dangerousness of the Mafia and of the applicant in so far as he was presumed, according to police reports, to have maintained links with Mafia circles. Moreover, this decree, in derogation from the Prison Administration Act, imposed the following restrictions:

– no access to a telephone;

– no conversation or correspondence with other prisoners;

– no meetings with third parties;

– limits on visits by family members, with a maximum of one visit for one hour per month;

– no sums of money above a fixed amount to be received or sent out;

– only parcels containing clothing to be sent in from outside prison;

– no organisation of cultural, recreational or sports activities;

– no right to vote in elections for prisoners' representatives or to be elected as a representative;

– no handicrafts;

– no food requiring cooking to be purchased;

– not more than two hours per day to be spent outdoors.

By the terms of Article 2 of this decree, censorship of correspondence by the governor of a prison required previous authorisation by the court having jurisdiction.

On 26 November 1993 the governor of Como Prison transmitted to the Trapani Assize Court an application by the applicant for permission for additional visits and telephone calls, if possible on request. The President of the Assize Court allowed this application on 20 December 1993.

On 29 November 1993 the governor of Como Prison asked the Trapani Assize Court to authorise censorship of the correspondence of the applicant, who on 28 November 1993 had been served with the Minister of Justice's decree placing him under the special regime. On 30 November 1993 the President of the Trapani Assize Court gave his authorisation.

On an unspecified date the applicant challenged the decree of 26 November 1993 before the Ancona court responsible for the execution of sentences. He objected to being placed under the special regime and complained of its vexatious nature. The court rejected the appeal on an unspecified date in 1995.

The applicant was subsequently transferred several times to prisons in Trapani, Ascoli Piceno, Termini Imerese, Pianosa, Palermo and Porto Azzurro, often for the sole purpose of allowing him to participate in the hearings of the appeal proceedings taking place in Palermo.

On 7 December 1993 the governor of Termini Imerese Prison made an application to the Trapani Assize Court and to the Marsala District Court requesting authorisation to allow the applicant visits by members of his family (the applicant is married and has three daughters). The President of the Assize Court granted his authorisation on 9 December 1993.

On an unspecified date an application for censorship of the applicant's correspondence to be authorised was made by the prison to the Macerata court responsible for the execution of sentences. On 22 August 1994 the Macerata court responsible for the execution of sentences allowed that application for a period of six months.

On 24 August 1994 the applicant appealed against that decision to the Ancona and Trapani courts responsible for the execution of sentences. The result of those appeals is unknown.

In a decree of 29 November 1994 the Minister of Justice ordered that the applicant be placed under the special prison regime again, from 29 November 1994 to 28 May 1995, on the ground that the conditions justifying that measure continued to exist. The restrictions were the same as those imposed by the previous decree.

On 6 December 1994 the applicant appealed against this decree to the Ancona court responsible for the execution of sentences. He complained of being placed under the special regime and, in particular, of the restriction on visits by family members.

In a decision of 27 March 1995 the Ancona court responsible for the execution of sentences rejected the appeal in part, holding that imposing the special prison regime on the applicant was justified and that the decree complained of was based on adequate grounds. As for the restrictions imposed by that decree, the court found that the list of minimal conditions of detention laid down in section 14 quater of the Prison Administration Act should apply in relation to visits by family members. Consequently, the court struck down the ban on receiving more than one family visit per month and ruled that the applicant would in future be entitled to four.

On 30 March 1995 the applicant appealed on points of law against that decision. He argued that the conditions of detention to which he was subjected were inhuman and that the special prison regime had been extended by decrees based on inadequate grounds. The public prosecutor also appealed against the decision. In a judgment of 10 October 1995, deposited with the registry on 31 October 1995, the appeals were declared inadmissible on the ground that the parties no longer had standing, since the decree of 29 November 1994 had expired on 28 May 1995, before the Court of Cassation delivered its judgment.

In a decree of 27 May 1995 the Minister of Justice ordered application of the special prison regime to be extended until 26 November 1995, on the ground that the conditions justifying the measure continued to exist.

On 5 June 1995 the applicant lodged an appeal against the above decree with the Ministry of Justice, to be transmitted, if necessary, to the Ancona court responsible for the execution of sentences. He complained, inter alia, of the lack of real grounds justifying extension of the special regime and argued that the restrictions placed on visits and time outdoors and the prohibition of the purchase of food requiring cooking were not only contrary to section 14 quater of the Prison Administration Act and incompatible with the aim of rehabilitation, but also vexatious. He asked for application of the special regime to be countermanded and for permission to receive visits from his wife and his daughters without being separated from them by glass partitions and to make telephone calls. The applicant also emphasised that he was being held far from his family and the place where the trial was taking place. The outcome of that appeal is not known.

In a decree of 24 November 1995 the Minister of Justice ordered, on similar grounds, that application of the special prison regime be extended to 23 May 1996. On 27 November 1995 the applicant challenged the above order in the Florence court responsible for the execution of sentences.

In a decree of 21 May 1996 application of the special regime was once again extended by six months. The grounds for that decree and the restrictions imposed were the same as those of the previous decrees. On 30 May 1996 the applicant challenged the above decree in the Florence court responsible for the execution of sentences.

On 2 October 1996 the applicant applied to the Florence court responsible for the execution of sentences for a date to be fixed for hearing his appeals of 27 November 1995 and 30 May 1996.

In a decree of 19 November 1996 the Minister of Justice once again extended application of the special regime by six months; that decision was based on grounds similar to those of the previous decrees. On 21 November 1996 the applicant challenged the decree in the Florence court responsible for the execution of sentences. The court dismissed the applicant's appeal in a decision of 11 February 1997. Basing its decision on the Constitutional Court's judgment no. 351/1996, the court held that extension of the application of the special regime to the applicant was justified in the light of the information gathered by the police and judicial authorities. However, it struck down some of the restrictions previously placed on the applicant, namely suspension of the rehabilitation programme; restrictions on visits by family members; the prohibition of parcels containing anything other than clothing; the ban on the purchase of food requiring cooking and the restriction of time spent outdoors to two hours per day. The applicant appealed on points of law against the above decision. The hearing in private was set down for 30 September 1997. On that date the appeal was declared inadmissible as being devoid of purpose, the decree's period of validity having in the meantime expired.

On 4 February 1997 the Minister of Justice ordered that the applicant be permitted to replace the monthly visit by his family with a telephone call, to receive one additional parcel per month and two special parcels per year, and to use the kitchens.

In a decree of 19 May 1997 the Minister of Justice once again extended application of the special prison regime by six months. That decision was based on grounds similar to those of the previous ones. The applicant challenged the above decree in the Florence court responsible for the execution of sentences, which dismissed his appeal in a decision of 7 August 1997, ruling that extension of application of the special regime to the applicant was justified in the light of the information gathered by the police and judicial authorities. However, it struck down some restrictions previously imposed, namely suspension of the rehabilitation programme, restrictions on visits by family members, the prohibition of parcels containing anything other than clothing, the ban on the purchase of food requiring cooking, and the restriction of outdoor exercise to two hours per day. The applicant appealed on points of law against the above decision but in a judgment of 19 January 1998 his appeal was ruled inadmissible as being devoid of purpose, since the decree's period of validity had expired in the interim.

On 29 August 1997 the applicant applied to the Macerata judge responsible for the execution of sentences, complaining of the regime under which he had been placed. The judge dismissed that appeal in a decision of 15 October 1997, deposited with the registry on the following day. He noted that the restrictions the applicant had complained of had been imposed by the prison authorities by means of departmental orders which, without exception, implemented the Minister of Justice's decrees and were therefore lawful; he further emphasised that defendants – unlike convicted persons – were not required to participate in the rehabilitation programme on account of the principles of the presumption of innocence and the freedom to defend oneself.

In a decree of 21 November 1997 the Minister of Justice extended the special regime for six months and ordered the governor of the prison to apply to the competent court for authorisation to censor all the applicant's correspondence. On 23 November 1997 the governor of Trapani Prison applied for authorisation to the Livorno judge responsible for the execution of sentences, who informed the judge who had jurisdiction, namely the Trapani judge responsible for the execution of sentences. The latter ordered censorship of the applicant's correspondence for six months, starting on 21 November 1997.

On 28 November 1997 the applicant appealed against the decree of 21 November 1997 to the Ancona court responsible for the execution of sentences, which transmitted his appeal on 1 December 1997 to the Palermo District Court. The Palermo District Court returned it to the Ancona court on 2 May 1998 as jurisdiction over the matter had changed in the interim (see paragraph 46 below in fine). By a decision of 7 May 1998, deposited with the registry on 11 May 1998, the Ancona court responsible for the execution of sentences dismissed the appeal.

In a decision of 4 February 1998 the Minister of Justice revoked the restriction on outdoor exercise.

In a decision of 21 May 1998 the Minister of Justice ordered that the applicant should cease to be subject to the special regime.

A number of letters and the observations sent by the applicant to the Secretariat of the European Commission of Human Rights through his wife arrived with censors' stamps from the prisons of Pianosa, Palermo, Porto Azzurro, Ascoli Piceno and Trapani. Censorship continued until June 1998.

Letters sent by the applicant to his wife, in particular those of 19 and 21 October 1997 were censored; the applicant was informed of this on 21 and 28 October 1997.

The appeals by the applicant to the courts responsible for the execution of sentences were censored by the prison authorities.

Section 41 bis of the Prison Administration Act (Law no. 354 of 26 July 1975), as amended by Law no. 356 of 7 August 1992, gives the Minister of Justice the power to suspend application of the ordinary prison regime as laid down in Law no. 354 of 1975 in whole or in part, by means of a decision stating grounds which is subject to judicial review, for reasons of public order and security in cases where the ordinary prison regime would be inadequate to meet these requirements.

Such a measure can be applied only to prisoners charged with or sentenced for the offences mentioned in section 4 bis of the Act, which includes offences relating to Mafia activities.

Under the terms of section 6 of Law no. 11 of 7 January 1998, application of the section 41 bis special regime was extended until 31 December 2000.

The measures which may result from application of section 41 bis are the following:

– a ban on participating in the preparation of food and organising prisoners' recreational activities;

– a ban on visits by persons other than family members, a cohabitant or a lawyer;

– a maximum of two visits and one telephone call per month;

– censorship of all the prisoner's correspondence except for that with his lawyer;

– not more than two hours per day to be spent outdoors;

– no extra visits allowed for good conduct;

– restrictions on acquiring or receiving from outside prison personal possessions authorised by the prison's internal rules;

– no more than two parcels per month;

– no sums of money to be received from outside prison or sent out;

– no handicrafts involving the use of dangerous tools.

Section 14 ter of the Prison Administration Act provides for an appeal (reclamo) to the court responsible for the execution of sentences (tribunale di sorveglianza) against a decree of the Minister of Justice imposing the special regime within ten days from the date on which the person concerned receives a copy of the decree. Such an appeal does not have suspensive effect. The court must take a decision within ten days. Section 4 of Law no. 11 of 7 January 1998 requires an appeal to be lodged with the court responsible for the execution of sentences which has geographical jurisdiction over the prison where an appellant is serving his sentence. An appeal to the Court of Cassation lies against the decision of the court responsible for the execution of sentences.

The Italian Constitutional Court, having been asked to rule on whether such a system complied with the principle of non-encroachment on matters reserved for the legislature, held (in judgments nos. 349 and 410 of 1993) that section 41 bis was compatible with the Constitution. It observed that while the special prison regime within the meaning of the provision in question was in practice laid down by the Minister, an appeal lay against a ministerial decree to the courts responsible for the execution of sentences, which had the power to review both the need for such a measure and the actual measures to be applied to the prisoner concerned, which in any event ought never to entail inhuman treatment.

Nevertheless, the Constitutional Court held, on the basis of Article 15 of the Constitution, which provides, inter alia, that restrictions on correspondence may be imposed only by means of a court decision whose grounds are stated, that the power to order censorship of a prisoner's correspondence belonged to the courts alone. As a result, section 41 bis could not be interpreted to include a power on the Minister of Justice's part to take measures relating to prisoners' correspondence.

However, the Court of Cassation has held that the courts responsible for the execution of sentences should confine themselves to reviewing the lawfulness of a ministerial decree as such, and could not usurp the role of the administrative authorities in the choice of the actual measures to be taken. On the other hand, the courts responsible for the execution of sentences have in practice gone so far as to review whether each specific measure is in accordance with the aim pursued by the administrative authorities. The result of this had been that decisions of the courts responsible for the execution of sentences had often remained unexecuted, and this had given rise to conflicts between those courts and the administrative authorities.

In judgment no. 351 of 14-18 October 1996 the Constitutional Court established the principle that the power of judicial review by the courts responsible for the execution of sentences extended to the practical arrangements for implementation of a measure, regard being had both to the aim pursued and to the fundamental rights guaranteed by the Constitution. The Court of Cassation, moreover, changed the line of its case-law on the question even before the Constitutional Court's judgment, by allowing the court responsible for the execution of sentences to strike down, in whole or in part, the application of unlawful measures (see judgments nos. 6873 of 12 February 1996 and 684 of 1 March 1996).

On 7 February 1997, applying the principles laid down by the Constitutional Court in the above-mentioned judgment, the Prison Administration Department of the Ministry of Justice sent a circular letter to the governors of prisons regarding organisation of the wings where prisoners subject to the special regime are held. This circular contained, inter alia, the following instructions: prisoners would from then on be allowed to use the kitchens; they would have access to rooms equipped for sporting activities and to a library; visits by family members could be replaced by telephone calls; the use of glass partitions would continue but, as a result, the searching of visitors need not be so strict.

In judgment no. 376 of 26 November-5 December 1997 the Constitutional Court reaffirmed that section 41 bis was compatible with the Constitution, while changing and clarifying the interpretation to be given to it. It held, inter alia, that decrees imposing the special regime had to be based on genuine public-order and security grounds, and that decisions to extend application of the regime also had to be based on sufficient grounds which were independent of those which had justified the imposition of the rules in the first place. The Constitutional Court held that the special regime should not amount to inhuman treatment or hinder the prisoner's rehabilitation, which would be contrary to Article 27 of the Constitution. It nevertheless stated that at no time did section 13 of the Prison Administration Act cease to apply, under which the treatment to which a prisoner is subjected must respect his personality, and a rehabilitation programme must be prepared and adapted on the basis of scientific observation of the prisoner's personality and with his cooperation.

Section 27 of the Act also remained applicable. This provided that cultural, sporting and recreational activities should be promoted and organised in prisons – as should any other activity allowing the expression of the prisoners' personalities within the rehabilitation programme. These activities had to be organised, of course, in such a way as to prevent any contact between the person concerned and the Mafia or criminal environment from which he came. Emphasising that the special regime had to respect the aim of returning the prisoner to normal society, the Constitutional Court held that the principle of the presumption of innocence was not infringed by the fact that the special regime could be imposed on suspects before a final conviction. In fact, application of the special regime did not stand in the way of early release (see the Constitutional Court's judgment no. 349 of 1993), which presupposed the prisoner's previous participation in the cultural, sporting and recreational activities provided for in section 27 of the Prison Administration Act.

On 6 February 1998, in accordance with the principles laid down by the Constitutional Court in the above-mentioned judgment, the Prison Administration Department of the Ministry of Justice sent a circular letter to prison governors concerning the organisation of the wings where prisoners subject to the special regime are held. This circular included, inter alia, the following instructions:

– outdoor exercise time was to be increased to four hours per day, but care was to be taken to ensure that outdoor exercise did not become an opportunity for meeting or making contact with other persons presumed to be associated with the Mafia;

– the outdoor exercise yards in Secondigliano and Pisa Prisons were to be equipped for physical exercise and sport;

– one or more rooms for social, cultural or recreational activities were to be provided in each wing to which prisoners subject to the special regime were permanently assigned or which were occupied by them for medical reasons;

– on the question of work, the circular stated that where it was not possible to equip a prison appropriately prisoners should have access to premises equipped for this purpose in other prisons, with measures in place to exclude any opportunity of meeting or making contact with other persons presumed to be associated with the Mafia;

– visits by children under 16 years of age could take place without a glass partition; if the visit took place in the presence of other persons, partition-free access was to be authorised for the children only and was not to exceed one-sixth of the total duration of the visit in length;

– prisoners subject to the special regime could receive parcels containing foodstuffs apart from those requiring cooking, because they were not to be allowed to use the kitchens except for the purpose of making hot drinks or heating up pre-cooked food.

Section 18 of Law no. 354 of 26 July 1975, as amended by section 2 of Law no. 1 of 12 January 1977, provides that the authority empowered to order the censorship of prisoners' correspondence is the court before which proceedings are pending (whether the investigating court or the trial court) until the delivery of the first-instance judgment, and the court responsible for the execution of sentences during any subsequent proceedings. Section 18 also provides that the court with jurisdiction may order the monitoring of a prisoner's correspondence in a decision stating reasons, but it does not set out the cases in which such a decision may be made.

In practice, the censorship concerned means interception of all the correspondence of the prisoner subject to the order, which is then read by the judicial authority which ordered it, by the governor of the prison or by prison staff designated by the governor. The letters are then marked with the censor's stamp, which serves as proof that they have been read (see also Article 36 of Presidential Decree no. 431 of 29 April 1976, implementing the above-mentioned Law no. 354). This supervisory measure cannot lead to the erasing of words or sentences, but the judicial authority may order that one or more letters should not be delivered. In such cases, the prisoner must be immediately informed of this. Such an order may also be made provisionally by the governor of the prison, who must, however, inform the judicial authority.

Lastly, with regard to the remedies available against censorship of correspondence, the Court of Cassation has stated in several decisions that it constitutes an administrative act. Moreover, the Court of Cassation has affirmed in its settled case-law that Italian law does not provide remedies in this respect; nor can censorship form the subject of an appeal on points of law since it does not concern the prisoner's personal liberty (Court of Cassation judgments nos. 3141 of 14 February 1990 and 4687 of 4 February 1992).

Section 35 of the Prison Administration Act provides that prisoners may make sealed applications or complaints to the following authorities :

– the governor of the prison, prison inspectors, the Director-General of Prisons and the Minister of Justice;

– the judge responsible for the execution of sentences;

– the judicial and health authorities which inspect the prison;

– the President of the Regional Council; and

– the President of the Republic.


The applicant is a British citizen born in 1961 and currently detained in HM Prison Old Elvet, Durham. Before the Court, he is represented by Mr. B.T. Row, a solicitor practising in Newcastle. The facts of the case, as submitted by the parties, may be summarised as follows.

On 17 June 1993 the applicant was arrested and, together with his brother, charged with burglary and conspiracy to commit burglary. After being charged, the applicant and his brother were released on conditional bail.

Committal papers were served on the defence on 21 September 1993, following the completion of the police investigation. The applicant’s representatives requested an “old style” committal hearing, which would have involved hearing oral evidence from ten prosecution witnesses over two days. It was not possible for the North Tyneside Magistrates Court to schedule a two-day hearing before 4 January 1994. On that date the defence decided to proceed on the basis of written statements under the shortened committal procedure (provided for by section 6(2) of the Magistrates Courts Act 1980). The case was then committed for trial to Newcastle Crown Court.

On 25 February 1994 there was a pre-trial hearing to ascertain the pleas of the accused and to give directions for trial. The applicant and his brother pleaded not guilty and were released on bail.

In a letter received on 21 April 1994, the applicant’s solicitors wrote to the court asking for the case not to be listed for eight weeks to enable them to obtain the report of a forensics expert. In a letter received on 8 June 1994, they asked for a further delay of six weeks. Finally, in a letter received on 8 July 1994 they asked that the trial not be listed until September or October 1994 to enable them to obtain medical evidence.

The trial, which was estimated to require three weeks and involve hearing evidence from 58 witnesses, was listed for 3 July 1995. However, the applicant failed to appear at the trial. In his application he explained that “because of threats which [he] was receiving from the persons actually responsible for the offences for which [he] stood charged, [he] failed to attend court. [He] ... stayed at home to protect [his] family from known criminals who would have caused harm to [his] family”.

The applicant was arrested on 28 July 1995 and remanded in custody. The trial was next scheduled for 4 March 1996. On that date, the applicant’s co-accused brother failed to appear and the case was again adjourned.

On 22 April 1996 there was a further pre-trial directions hearing. Three possible trial dates were proposed: 17 June, 12 August and 4 November 1996. However, the applicant’s counsel, who had acted for him from the outset and whom the applicant wished to represent him at trial, was not available on 17 June, and it was not possible for the trial to take place on 12 August 1996 because of the unavailability of a number of witnesses. The trial was, therefore, fixed for 4 November 1996. The applicant was remanded in custody until then.

At the trial, both the applicant and his brother pleaded guilty to charges of conspiracy to burgle. The applicant was sentenced to four years’ imprisonment.


The applicants are a married couple, born in 1975 and 1972, respectively, and their daughter, C, born on 1 November 2003. They live in Gram. They are represented before the Court by Mr Ladegaard Jensen, a lawyer practising in Holsted.

The Danish Government (“the Government”) were represented by their Agent, Mr Peter Taksøe-Jensen of the Ministry of Foreign Affairs.

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

The applicant parents suffer from arrested development. Intellectually they have been placed in the category of severely mentally retarded pesons and their disorders have been assessed to be congenital. Since their childhood they have been in close contact with the social and health authorities. The applicant parents have cohabited since 1995.

On 22 September 1996 the applicant parents’ first child, M, was born. On the social authorities’ initiative, seven days after the birth the applicant parents and M moved into a family observation institution (Institutionen Bethesda), with staff consisting of social workers, psychologists and social education workers, which was to support the applicant parents and assess the extent to which they possessed potential in the parenting role. The institution submitted its report on 27 November 1996.

As to the applicant mother, the report stated, inter alia, that her attention could only be maintained for short intervals and with massive support. She was generally preoccupied with talking about her physical ailments to the extent that it took most of her energy. When faced with demands, for example if M started to cry or became restless, the mother became anxious and could seem panicstricken. She was not able to recognise her own problems and need for support and she had great difficulty in establishing contact with M.

As regards the applicant father, notably during the beginning of his stay at the institution, he often made verbal threats against the staff and the other families at the institution. He had violent nightmares during which he would cry out loudly and pull out his tongue. Moreover, his night sleep was broken by long hot showers for up to two hours, during which he would talk or shout to himself. Consequently, he would often be exhausted during the day and sleep most of the time. He had no structure to his day and showed no signs of being able to handle daily routines. He had no understanding or recognition of his need for help and support in the parental role. He had trouble realising the consequences of his actions, and was not capable of protecting their baby M from physical harm (for example, he left M alone on the changing table although the danger of doing so had been explained to him frequently).

With regard to the parents’ care skills, the report stated that both parents had extreme difficulty in establishing contact with M, and they often asked the staff to take over when they became impatient with her. None of the parents handled M particularly gently and their movements sometimes seemed uncoordinated. Mostly, they forgot to hold the baby’s head. They would not let M sleep and were in general not capable of recognising and understanding her needs. The report also stated that due to the parents’ inability to concentrate, M’s attempts to make contact with the parents were usually rejected or not answered. Thus, M eventually gave up contact and looked away from the parents when being with them.

The conclusion read as follows:

“The parents appear as a very emotional damaged couple who, because of their own disadvantaged upbringing, find it extremely difficult to master the task of parenting. The staff have no doubt that both parents have done their best in a spirit of love for their child, but their personality structure and their non-existing inner picture of the parent role prevent them from developing sufficient parenting functions. Moreover, their lack of mental resources is a further hindrance to the task of their developing parenting potential.

Despite intervention at various levels, the basic symbiotic mother-child dyad has not developed.

For the mother’s parental skills, this lack of bonding means that she is unable to see and understand the child’s signals, nor is she able to adapt to the child’s needs, which is crucial for the child’s attachment ability and emotional development.

We have examined whether the father has the resources to take over this process, but the examination showed that he does not master this either.

Their lack of timing and the resulting unintended abuse create unpredictability and chaos in the child’s world and will be a risk factor in her development,

Moreover, both parents lack the fundamental ability to structure their everyday lives, for the child as well as for themselves. In particular, their serious problems managing their finances permeate their entire everyday lives.

Their - as we see it - very resource-poor network means that the father, mother and child cannot expect adequate support. Mother and father tell us themselves that they have no friends who can give them special support. Our observations have also shown that their ability to create relations is virtually non-existent.”

On 9 December 1996 M was taken into public care without the parents’ consent. Since May 1997 she has lived with a foster family. A relief foster family was also provided for her, to take over during holidays etc. The applicant parents were granted regular access, which was to take place under surveillance. Since February 2004 access has taken place in the presence of the foster family.

The applicant parents’ second child, C, was born on 1 November 2003.

Beforehand, at a meeting held on 8 September 2003, the applicant parents were informed by a social worker at the Municipality (Nørre-Rangstrup Kommune) that the latter would not recommend that the family be placed in a family institution when the child was born. The decision was based on the report of 27 November 1996 and reports on the applicant parents’ access to M. In addition, the decision was based on two statements of 19 January 2001 by a neuropsychologist, who in December 2000 had examined each of the applicant parents at the request of the social and health authorities in connection with the granting of social benefits (førtidspension). With regard to the applicant father the statement concluded:

“The findings of the neuropsychological examination show a 27-year-old man, whose intelligence is probably far below average and whose current intellectual and memory functions correspond to this level, thus presently placing him in the severely mentally retarded category. On review of the individual neuropsychological functions as well as the intellectual and memory functions, a number of heavy disorders appear, manifested in a more diffuse affection of cortical brain areas, most pronounced in the frontoparietal brain areas of the left hemisphere. The disorders are assessed to be congenital. As regards an assessment of future job possibilities, I believe the chances of his being placed in the labour market under normal conditions to be non-existent, and that he has no real capacity for working in any kind of occupation, not even in sheltered surroundings.”

With regard to the applicant mother the statement concluded:

“The findings of the neuropsychological examination show a 25-year-old woman whose intelligence is probably far below average and whose current intellectual and memory functions correspond to this level, thus presently placing her in the severely mentally retarded category. On review of the individual neuropsychological functions as well as the intellectual and memory functions, a number of disorders appear, manifested in a more diffuse affection of cortical brain areas, most pronounced in the frontoparietal brain areas of the right hemisphere. The disorders are assessed to be congenital.”

On 21 October 2003 the Municipality received written information from an acquaintance of the applicant parents that the latter planned to run away from the hospital with the baby when it had been born.

On 23 October 2003, a family care consultant also informed the Municipality that the applicant father had told her that with the help of others he had planned to run away with the baby within 24 hours after its birth.

By decision of 29 October 2003 the Municipality refused the applicant parents’ request that they and their newborn pursuant to Section 40 (2) of the Act on Social Services (Lov om Social Service) be placed at a family institution observation home or that mother and child be placed together with a foster family. At the same time the applicant parents were also informed that the Municipality intended to take the newborn into public care. The applicant appealed against the decision to the Social Appeal Board (Den Sociale Ankestyrelse).

On 1 November 2003 C was born and the same day the Chairman of the Children and Young Persons Committee (Børne- og Ungeudvalget) under the Municipality decided provisionally, pursuant to section 45 (1) of the Act on Social Services, to take C into public care without the consent of the applicant parents. The decision gave the police the authority to prevent the applicant parents from leaving the hospital with C, but the parents had unlimited access to their baby during the stay at the hospital.

According to section 45 (3) of the Act on Social Services, the preliminary decision was approved by the entire Children and Young Persons Committee at a meeting on 6 November 2003, during which the applicant parents’ lawyer was present. The decision was based on the report of 27 November 1996, the two statements of 19 January 2001 and the information submitted about the applicants’ intention to run away with the newborn baby.

The decision was implemented sixteen days later in connection with the applicant mother’s discharge from the hospital. At the wish of the applicant parents, C was placed with M’s relief foster family, which allowed the children to see each other on a regular basis.

During a meeting on 1 December 2003, at which the applicant parents, represented by their lawyer, were heard together with their two advisers (bisiddere), the Children- and Young Persons Committee made its final care order pursuant to section 42 (2) of the Act on Social Services.

The applicant parents had access to C one hour twice a week in the foster parents’ home.

On appeal, by decision of 6 January 2004, the Social Appeal Board upheld the Children and Young Persons Committee’s decisions of 6 November 2003 and 1 December 2003. Before the Board, the applicant parents, represented by their lawyer, and an adviser were heard. In addition, various documents were submitted, including the report of 27 November 1996, the two statements of 19 January 2001 concerning the neuropsychological examinations of the applicants and the Municipality’s case file. The Social Appeal Board found that due to the applicant parents’ diminished intellectual functioning and limited personal resources, there was an evident risk that C’s health and development would suffer serious damage if she was to remain with them. For the same reasons, it considered that the problems could not be solved in the applicant parents’ home, even if they were granted measures of support. The care order was to be reconsidered by the Children and Young Persons Committee no later than one year from the Board’s decision or, if the decision was brought before the High Court, no later than one year from the High Court’s judgment.

On 23 January 2004 the applicants appealed against the decision to the High Court of Western Denmark (Vestre Landsret), claiming the Municipality’s care order to be revoked as regards C. They also appealed against a decision of 20 November 2003 in which the Social Appeal Board had continued the taking into public care of M.

The applicant parents were heard by the High Court. In addition to the written material already submitted before the Social Appeal Board, the court also obtained two statements of February 2004 in which the foster families described the positive health and development of M and C respectively. They stated that the applicant parents’ access to the children was well implemented.

By judgment of 18 March 2004, the High Court found against the applicants. It stated that for the reasons set out by the Social Appeal Board the conditions under section 42 of the Act on Social Services were fulfilled for taking the applicant parents’ children, M and C, into public care.

The applicants’ request to be granted leave to appeal to the Supreme Court (Højesteret) was refused on 19 August 2004.

In 2004, in connection with the review of the public care order, the Municipality decided to make an assessment of the applicants’ parenting skills by a psychologist. The assessment was submitted on 1 February 2005 and contained a recommendation to maintain C in public care since the applicants parental skills were found too limited.

In a statement of 27 January 2005 the foster family described their view on C’s development and on how access with the parents was working out. The parents had been good at keeping the appointments, and although the father had only little contact with C, the mother was very preoccupied with proving that she could perform the role as a mother. Both applicant parents, however, were unable to interpret the child’s signals and impervious to advise. Consequently, the contact confused the child.

On 9 March 2005 having heard the applicant parents and one of their advisers, the Children and Young Persons Committee decided to continue the public care for another two years. On appeal, on 24 May 2005, the Social Appeal Board confirmed the decision.

The applicant did not bring this decision before the courts. On the contrary, on 1 December 2005 the applicant parents gave their consent to the taking of C into public care.

In the meantime, in March 2005, the applicant parent’s access to C was increased and now took place once a week for four hours in the presence of the support person appointed to the parents. In May 2005, however, on the applicant parents’ request, access was reduced to take place once a week for two hours.

B. Relevant domestic law and practice

The relevant provisions of the Act on Social Services (Lov om Social Service) at the time read as follows:

Section 40

The Municipality takes a decision as to measures to be taken under subsection 2, when this is deemed to be of significant importance with regard to a child’s or young person’s special need for support. From the measures listed in subsection 2, one or more of the least restrictive measures among those suitable shall be chosen. Any such decision shall be subject to the consent of the custodial parent, or other person having custody ... Any decision taken under subsection 2 (xi) shall be subject also to the consent of the young person, who has reached the age of 15 years.

The Municipality may decide:

(i) to offer consultation assistance relating to the child or young person’s conditions, including the admission of the child or young person to a daytime facility, a youth club, training or education establishment, etc.;

(ii) to offer practical, pedagogical or other support in the home;

(iii) to offer family therapy or similar support;

(iv) to offer the custodial parent, or other person having custody, the child or young person and other family members the possibility of staying on a full-time basis ..., in an institution, with a foster family, at another approved facility, in a municipal full-time facility or in an accommodation facility approved by the county authority subject to the rules provided under section 94a below;

(v) to offer a relief arrangement ... at a full-time institution, with a foster family, in a municipal full-time facility or at an approved facility;

(vi) to appoint a welfare officer for the child or young person;

(vii) to appoint a permanent contact person for the child or young person or for the whole family;

(viii) to grant financial support in respect of expenses incidental to the measures listed under (i)-(v) where the custodial parent or other person having custody cannot afford such expenses;

(ix) to grant financial support in respect of expenses incurred for the purpose of preventing a child or young person being taken into care, for the purpose of expediting the return of a child or young person to his/her home or of contributing towards creating and maintaining stable contact between parents and children while one or more children are in care;

(x) to grant financial support for attendance at a boarding school or continuation school where the custodial parent, or other person having custody, cannot afford such costs;

(xi) to take the child or young person into care at a full-time institution, with a foster family, in a municipal full-time facility or at an approved facility deemed suitable for the special needs of the child or young person ....

Section 40a

In connection with a child or a young person being taken into public care ..., the Municipality proposes that a support person be appointed to the custodial parent or other person having custody of the child.

Section 42

If there is an obvious risk that the health or development of the child or young person will suffer major damage due to

(i) inadequate care or treatment of the child or young person;

(ii) violence or other serious ill-treatment;

(iii) substance abuse or criminal conduct or other serious social difficulties on the part of the child or young person; or

(iv) any other behavioural or adjustment problems in the child or young person,

the Children and Young Persons Committee may decide that the child or the young person be taken into care according to section 40 (2) (xi) without the consent of the custodial parent or other person having custody, or of the young person having reached the age of 15 years. [Such a decision] may be made only when there is a reasonable assumption that the problems cannot be resolved during the child’s or young person’s continued stay in the home.

If it is in the child’s or young person’s best interest, the Children and Young Persons Committee may decide that the child or young person be taken into care pursuant to subsection 1, notwithstanding that the custodial parent, or other person having custody, and the young person consent to an arrangement under section 40 (2) (xi).

Any decision taken under subsections 1-3 may be made on a provisional basis subject to the rules provided under section 45 below provided the requirements are met.

Section 45

Decisions under sections ... 42, ... 57(3), ... which, because of the immediate needs of the child or young person, cannot be deferred pending consideration by the Children and Young Persons Committee, may be made on a provisional basis by the Chairman of the Committee or in his absence by the Deputy Chairman.

The custodial parent or other person having custody, ... shall within 24 hours of the implementation of a provisional decision be given written notice of the decision and the reasons for the decision. Such notice shall also give particulars of the right of access to case records provided for by the Act on Public Administration, the right to be heard and to receive free legal assistance.

A provisional decision made under subsection 1 shall be submitted to the Children and Young Persons Committee for their approval as soon as possible and within a maximum period of seven days from the implementation of the decision, whether or not the measure has been discontinued.

Section 46

Measures under sections 40, ... 42, ... shall be discontinued when their object has been achieved, when they no longer serve their purpose taking into account the special needs of the child or young person, or when the young person attains the age of 18 ...

Section 62

The Children and Young Persons Committee ... shall in a meeting decide on the following ... (ii) to take a child or young person into care under section 42; ... (vi) approval of a provisional decision under section 45(3);

Before a decision is made, the custodial parent, or other person having custody, the child or young person, the legal adviser and any other adviser to the custodial parent or other person having custody shall be given an opportunity to be heard by the Children and Young Persons Committee. An opportunity provided under the first sentence to the child or young person may be dispensed with if the child has not attained the age of 12 or where it is deemed to be harmful to the child or young person.

Section 123

Decisions by the Children and Young Persons Committee accordingly to section 62, may be brought before the Social Appeals Board ...

Section 124

Decisions by the Social Appeal Board under sections 47 (3) and 123 may be brought before the High Court, within four weeks of the date on which the party appealing has been given notice of the decision.

Section 126

Decisions by the High Court cannot be appealed against to the Supreme Court. However, the Leave-to-Appeal Board may grant leave to appeal to the Supreme Court against decisions or judgments by the High Court when they are found of general principle. Such a request must be made within respectively three or six months from the decision or the judgment.

The relevant provisions of the Act on Legal Protection and Administration in Social Matters (Lov om retsikkerhed og administration på det sociale område) at the time read as follows:

Section 19

The Children and Young Persons Committee consists of:

(i) three members elected by the municipal council from among its members;

(ii) the City Court Judge in the district. If there are several judges in the judicial district the Court Administration shall appoint one of them; and

(iii) an educational/psychology expert to be appointed by the county council for the municipal term of office.

Section 20

The Children and Young Persons Committee shall elect its own chairman and deputy chairman from among the members elected by the municipal council.

The judge shall chair the meetings of the committee and shall ensure that the necessary investigations have been undertaken, decide whether to obtain more information and may require a judicial examination to be conducted under section 1018 of the Administration of Justice Act. Also, the judge shall provide guidance as to the interpretation and application of the rules and consider and evaluate the information available.


The applicant was born in 1954 and lives in Yenakiyeve.

In 1999 the applicant instituted civil proceedings against his former employers, the State-owned mines “Yenakiyivska” and “Poltavska”, seeking compensation for damage to his health.

On 12 February 1999 the Yenakiyeve Court (Єнакіївський міський суд) ordered the mine “Poltavska” to pay the applicant a lump sum of 10,922.79 hryvnyas (UAH). On 22 March 1999 the Donetsk Regional Court (the “Regional Court”; Донецький обласний суд) amended this judgment, having additionally awarded the applicant arrears in monthly allowances for the period of October 1996 – October 1999.

On 22 March 1999 the Regional Court ordered the mine “Yenakiyivska” to pay the applicant the total UAH 10,263.24 in monthly allowance arrears.

After the above decisions had become final and the enforcement proceedings had been instituted in their respect, the applicant unsuccessfully requested the judicial authorities to re-open the proceedings, seeking higher compensation.

According to the Government, the judgments debts were fully paid to the applicant in several instalments, last payments having been made in September 2003. To this end, the Government presented copies of the decisions to terminate the enforcement proceedings taken on 19 and 26 September 2003 by the Bailiffs (Відділ Державної виконавчої служби Єнакіївського міського управління юстиції) in respect of the mines “Yenakiyivska” and “Poltavska” respectively.

The applicant maintained that he had received only a part of the judgments debt due to him. He did not, however, specify the outstanding amount and provided no information on whether he had challenged the Bailiffs' decision to terminate the enforcement proceedings.

After the case had been communicated to the Government, the applicant additionally submitted a number of documents concerning his other disputes and proceedings against various parties, however, he neither described the relevant facts, nor articulated any separate complaints in their respect.

A description of the relevant domestic law can be found in Sokur v. Ukraine (no. 29439/02, § 17-22, 26 April 2005).