CASES OF DE WILDE, OOMS AND VERSYP ("VAGRANCY") v. BELGIUM

Preliminary objection partially allowed (non-exhaustion of domestic remedies);Violation of Art. 5-4;No violation of Art. 5-1;No violation of Art. 4;No violation of Art. 3;No violation of Art. 8;No violation of Art. 13;Just satisfaction reserved

The purpose of the Government’s application is to submit the De Wilde, Ooms and Versyp cases for judgment by the Court. On several points the Government therein expresses its disagreement with the opinion stated by the Commission in its report.

The facts of the three cases, as they appear from the said report, the memorials of the Government and of the Commission, the other documents produced and the addresses of the representatives appearing before the Court, may be summarised as follows:

Jacques De Wilde, a Belgian citizen, born on 11th December 1928 at Charleroi, spent a large part of his childhood in orphanages. On coming of age, he enlisted in the French army (Foreign Legion) in which he served for seven and a half years. As a holder of books for a fifty per cent war disablement pension and a military retirement pension, he draws from the French authorities a sum which in 1966 amounted to 3,217 BF every quarter. He has work, from time to time at any rate, as an agricultural labourer.

The applicant reported on 18th April 1966 at 11.00 a.m. to the police station at Charleroi and declared that he had unsuccessfully looked for work and that he had neither a roof over his head nor money as the French Consulate at Charleroi had refused him an advance on the next instalment of his pension due on 6th May. He also stated that he had "never" up to then "been dealt with as a vagrant". On the same day at 12 noon, Mr. Meyskens, deputy superintendent of police, considered that De Wilde was in a state of vagrancy and put him at the disposal of the public prosecutor at Charleroi; at the same time, he asked the competent authorities to supply him with information about De Wilde. A few hours later, after being deprived of his liberty since 11.45 a.m., De Wilde attempted to escape. He was immediately caught by a policeman and he disputed the right of the police to "keep him under arrest for twenty four hours". He threatened to commit suicide.

The information note, dated 19th April 1966, showed that between 17th April 1951 and 19th November 1965 the applicant had had thirteen convictions by courts of summary jurisdiction or police courts and that, contrary to his allegations, he had been placed at the Government’s disposal five times as a vagrant.

On April 19th, at about 10 a.m., the police court at Charleroi, after satisfying itself as to "the identity, age, physical and mental state and manner of life" of De Wilde, decided, at a public hearing and after giving him an opportunity to reply, that the circumstances which caused De Wilde to be brought before the court had been established. In pursuance of Section 13 of the Act of 27th November 1891 "for the suppression of vagrancy and begging" ("the 1891 Act") the court placed the applicant "at the disposal of the Government to be detained in a vagrancy centre for two years" and directed "the public prosecution to execute the order".

After being first detained at the institution at Wortel and then from 22nd April 1966 at that of Merksplas, De Wilde was sent on 17th May 1966 to the medico-surgical centre at St. Gilles-Brussels from where he was returned to Merksplas on 9th June 1966. On 28th June 1966, he was transferred to the disciplinary prison at Turnhout for refusal to work (Section 7, sub-section 2, of the 1891 Act), and on 2nd August 1966 to that of Huy to appear before the criminal court which, on 19th August, sentenced him to three months’ imprisonment for theft from a dwelling house. He was returned to Turnhout shortly afterwards.

On 31st May and 6th June 1966, that is, about a month and a half after his arrest and four weeks after sending his first letter to the Commission (3rd May 1966), the applicant wrote to the Minister of Justice invoking Articles 3 and 4 (art. 3, art. 4) of the Convention. He underlined the fact that on 6th May he had received 3,217 BF in respect of his pension and showed surprise that he had not yet been released. He also complained of being forced to work for the hourly wage of 1.75 BF. He added that he had refused to work in protest against the behaviour of the head of the block at Merksplas who had wrongfully claimed to be entitled to "take" from him 5% of his pension. Finally, he complained of the disciplinary measures taken on such refusal - punishment in a cell and confinement without privileges - and of hindrance to correspondence. On 7th June 1966, the Ministry of Justice requested the governor of the prison at St. Gilles to inform De Wilde "that his request for release" of 31st May would "be examined in due course".

The applicant took up his complaints again on 13th June and later on 12th July 1966. In this last letter, he enquired of the Minister why he had been transferred to the prison at Turnhout. He also pointed out that there was no work available at this institution which would enable him to earn his "release savings". On 15th July, the Ministry had him notified that his release before the prescribed period had expired could "be considered" "provided that his conduct at work (was) satisfactory" and "adequate arrangements for rehabilitation (had) been made".

De Wilde wrote again to the Minister on 8th August 1966. Due to his pension, he argued, he had "sufficient money"; in any case, "the results of (his) work" already amounted to more than 4,000 BF. As regards his rehabilitation, he stated that his detention made it "impossible"; it prevented him from corresponding freely with employers and the welfare officer had failed to help him. Nevertheless, on 12th August 1966, the Ministry considered that his application "(could) not at present be granted".

On 13th August 1966, the applicant wrote once again to the Minister claiming he could find board and lodging and work on a farm.

On 25th and 26th October 1966, the Ministry of Justice decided that, at the expiry of the sentence he had received on 19th August, the applicant could be released once his rehabilitation seemed ensured by the Social Rehabilitation Office of Charleroi (Section 15 of the 1891 Act).

De Wilde regained his freedom at Charleroi on 16th November 1966. His detention had lasted a little less than seven months, of which three months were spent serving the prison sentence.

According to a report of the Prisons’ Administration, the applicant received only one disciplinary punishment between the beginning of his detention (19th April 1966) and the date of his application to the Commission (17th June 1966): for refusal to work at Merksplas, he was not permitted to go to the cinema or receive visits in the general visiting room until his transfer to Turnhout.

In his application lodged with the Commission on 17th June 1966 (No. 2832/66) De Wilde invoked Articles 3 and 4 (art. 3, art. 4) of the Convention. He complained in the first place of his "arbitrary detention" ordered in the absence of any offence on his part, without a conviction and in spite of his having financial resources. He also protested against the "slavery" and "servitude" which, in his view, resulted from being obliged to work in return for an absurdly low wage and under pain of disciplinary sanctions.

The Commission declared the application admissible on 7th April 1967; prior to this, the Commission had ordered the joinder of the case with the applications of Franz Ooms and Edgard Versyp.

On 21st December 1965 at 6.15 a.m., Franz Ooms, a Belgian citizen born on 12th April 1934 at Gilly, reported to Mr. Renier, deputy superintendent of police at Namur, in order "to be treated as a vagrant unless one of the social services (could find him) employment where (he could) be provided with board and lodging while waiting for regular work". He explained that of late he had been living with his mother at Jumet but that she could no longer provide for his upkeep; that he had lost a job as a scaffolding fitter at Marcinelle and, in spite of his efforts, had failed to find another job for over a month; that he no longer had any means of subsistence and that he had been "convicted" in 1959 for vagrancy by the police court at Jumet.

On the same day at about 10 a.m., the police court at Namur, after satisfying itself as to "the identity, age, physical and mental state and manner of life" of Franz Ooms, considered at a public hearing and after giving him an opportunity to reply that the circumstances which had caused him to be brought before the court had been established. In pursuance of Section 16 of the 1891 Act, the court placed him "at the disposal of the Government to be detained in an assistance home" and directed "the public prosecution to execute this order".

Ooms was detained partly at Wortel and partly at Merksplas. He also spent some weeks at the prison medico-surgical centre at St. Gilles-Brussels (June 1966).

On 12th April 1966, that is less than four months after his arrest and about five weeks before applying to the Commission (20th May 1966), the applicant petitioned the Minister of Justice for his release. He alleged he was suffering from tuberculosis and that his family had agreed to take him back with them and place him in a sanatorium. On 5th May, the Ministry, after receiving the unfavourable opinion of the doctor and of the director of the institution at Merksplas, considered the request to be premature.

Franz Ooms again made a petition for release on 6th June, this time to the Prime Minister. He pleaded that as "he had been ill since his detention" he had been unable to earn by his own work the 2,000 BF needed to make up his release savings, and repeated that his mother was willing to have him with her and to take care of him. The Ministry of Justice, to whom the Prime Minister’s office had transmitted the request, also considered it to be premature; on 14th June, it requested the governor of St. Gilles prison to inform the applicant accordingly.

On 25th June 1966, the welfare department of the Salvation Army at Brussels certified that Franz Ooms would "be given work and lodging in (their) establishments immediately on his release". The applicant sent this declaration to the director of the welfare settlement at Wortel on 1st July, but without result.

His mother, Mme. Ooms, confirmed her son’s declarations by letter of 15th July 1966 to the same director. In his reply of 22nd July, the director asked her to produce a certificate of employment, pointing out that "at the time of his possible discharge", the applicant had to have, besides a resting place, "a definite job by which he (could) ensure his upkeep".

Mme. Ooms also wrote to the Minister of Justice on 16th July, asking for a "pardon for (her) son". On 3rd August 1966, the Ministry informed her that he would be freed when "he (had) earned, by his prison work, the sum of money prescribed in the regulations as the release savings of vagrants interned for an indefinite period at the disposal of the Government".

In a report of 31st August 1966 drawn up for the Ministry of Justice, the director of the Wortel settlement pointed out that Franz Ooms had already received several criminal convictions, that this was his fourth detention for vagrancy, that his conduct could not be described as exemplary, and that his earnings amounted to only 400 BF. According to a medical certificate appended to the report, physical examinations of the applicant had revealed nothing wrong. As a result, on 6th September 1966, the Ministry instructed the director to inform the detainee "that his complaints had been found groundless".

On 26th September 1966, Ooms again petitioned the Prime Minister. To justify this step, he cited the negative attitude of the Department of Justice. He stated that he was the victim of "monstrous injustices" which he attributed to his being a Walloon. He alleged, in particular, that on 23rd March 1966, at Merksplas, he had been punished with three days in the cells and a month’s confinement without privileges for refusing to sleep in a foul-smelling dormitory where the light was kept on all night, that he had been locked up naked and later "lightly clad" in a freezing cell which had brought on an attack of pneumonia and of tuberculosis for which he had had to spend three months in the sanatorium at the Merksplas institution. He also protested against the dismissal of the many petitions for release presented both by himself and by his mother. He finally declared his agreement to the opening of an enquiry for the purpose of verifying the truth of his allegations and he stated that he was ready to take action, if necessary, before a "national authority" within the meaning of Article 13 (art. 13) of the Convention.

Two days later, the Prime Minister’s office informed the applicant that his letter had been transmitted to the Department of Justice.

Ooms was released ex officio at Charleroi on 21st December 1966, one year to the day after being put at the disposal of the Government (Section 18, first sentence, of the 1891 Act).

In his application lodged with the Commission on 20th May 1966 (No. 2835/66), the applicant mentioned that he was in the sanatorium of the Merksplas institution but that his mother had agreed to have him hospitalised in a "civil" clinic. He added that his illness completely prevented him from working and thereby earning the 2,000 BF for his release savings; in any case, he would need at least a year to earn such a sum, at the rate of 1.75 BF per hour. He was therefore surprised that the Ministry of Justice had considered his request for release to be premature.

Ooms, who had meanwhile been transferred to the prison at St. Gilles-Brussels, supplemented his original application on 15th June 1966. He declared that he had for the moment been cured of his pulmonary disease caused by ill-treatment and undernourishment, but his illness had left "traces" which made it impossible for him to perform "any heavy work". He also stressed that his mother, who was in receipt of a pension, wanted him home with her. In these circumstances he considered he was entitled to be released, and he complained of the Belgian authorities’ refusal to recognise this right. Invoking Article 6, paragraph (3) (b) and (c) (art. 6-3-b, art. 6-3-c), of the Convention he further maintained that on his arrest he had asked in vain for free legal aid; this fact was contested before the Court by the Government’s Agent.

That part of the application where Franz Ooms complained – apparently in subsequent letters - of ill-treatment and of a violation of his liberty of conscience and religion (Articles 3 and 9 of the Convention) (art. 3, art. 9) was declared inadmissible on 11th February 1967 as manifestly ill-founded (Appendix II to the Commission’s report). On 7th April 1967, the Commission declared the remaining part of his application admissible, after having ordered its joinder with the applications of Jacques De Wilde and Edgard Versyp.

Edgard Versyp, a Belgian citizen born in Bruges on 26th April 1911, works, at least from time to time, as a draughtsman; he seems to have had his residence at Schaarbeek.

On 3rd November 1965, at 9 p.m., he appeared before Mr. Meura, deputy superintendent of police at Brussels; he carried a letter from the Social Rehabilitation Office requesting that he be given a night’s shelter. He stated he had no fixed abode, no work or resources, and "(begged) to be sent to a welfare settlement"; he pointed out that he had "previously (been) in Merksplas" and did not wish for "any other solution". After spending the night in the municipal lock-up, where he had already been the night before, he was taken in charge by the Social Rehabilitation Office on 4th November at 9 a.m. On the same day, this office certified that so far as its services were concerned there was no objection to Versyp "being but in the charge of the prosecuting officer with a view to his possible placement in a state welfare settlement": he was "well-known to both (the) after-prison care and vagrancy sections" at the office and attempts so far to rehabilitate him had failed due to "his apathy, idleness and weakness for drink"; in any case, he refused "any other welfare action", except his detention. As a result, Versyp was immediately put at the disposal of the public prosecutor’s office.

A few hours later, the police court in Brussels, having satisfied itself as to "the identity, age, physical and mental state and manner of life" of the applicant, considered, at a public hearing and after giving Edgard Versyp an opportunity to reply, that the circumstances which had caused him to be brought before the court had been established. In pursuance of Section 13 of the 1891 Act, the court placed him "at the disposal of the Government to be detained in a vagrancy centre for two years". It entrusted the execution of this order to the public prosecutor, who on that same day, 4th November 1965, required the director of the vagrancy centre of Merksplas to receive Versyp into his institution.

Versyp was detained at different times at Wortel, Merksplas and Turnhout.

On 7th February 1966, that is more than three months after his arrest and more than six months before applying to the Commission (16th August 1966), he wrote from Wortel to the Minister of Justice requesting his transfer to the solitary confinement division in Merksplas. His request was not transmitted to Brussels due to the imminent visit of the inspector-general who granted his request the next day.

On 10th May 1966, the applicant requested his transfer form Merksplas to the prison at St. Gilles-Brussels where, he thought, the Head of the Social Rehabilitation Service could succeed in getting him "work outside" to allow him "to live as an honest citizen". He stated that living "with other vagrants in Wortel and Merksplas" had "shattered" his morale and that he had neglected his work as he had had to receive treatment in hospital twice; he promised, however, to attend to "(his) business outside more efficiently in order to avoid a similar situation recurring". In a report of 16th May, the director of the Merksplas institution pointed out that Versyp, who had nine criminal convictions and had been detained four times for vagrancy, had spent the greater part of his detention in solitary confinement and could not adapt himself to communal life; the director therefore suggested his transfer to a solitary confinement prison (op zijn vraag naar een celgevangenis), in accordance with his request. As a result, he was sent on 23rd May to Turnhout Prison and not to that of St. Gilles; on 6th June, he complained of this to the Ministry of Justice, which ordered his return to Wortel.

On 22nd August 1966, Versyp begged the Ministry to grant him the opportunity of rehabilitating himself "in society according to (his) aptitudes through the good offices of the Brussels’ Social Service". On 6th September, the authorities of the Wortel settlement informed him, on the instructions of the Ministry, that his case would be examined when the amount of his release savings showed that he was capable of doing a suitable job of work.

On 26th September, the applicant protested to the Ministry against this reply. According to him, he had been prevented "by devious means" from earning anything both at Wortel and Turnhout in order "that (he) could then be held for an even longer period". Thus, at Wortel they wanted to make him do work for which he was not fit - potato picking - and refused to give him other work which he was able to do. Furthermore, they had purported to forbid him to correspond with the Commission but without success as he had invoked the regulations and informed the public prosecutor’s office. In short, he felt himself exposed to hostility which made him want to leave Wortel for Merksplas, or better still, for St. Gilles prison where, he claimed, the Social Rehabilitation Service would find him a suitable job and accommodation "in a hostel in Brussels".

The Ministry of Justice filed this letter without further action; on 28th September 1966, the director of the state welfare settlement at Wortel was requested so to inform the applicant.

Versyp was released on 10th August 1967, by virtue of a ministerial decision of 3rd August (Section 15 of the 1891 Act) and after one year, nine months and six days of detention. On 1st August the authorities of the Wortel settlement had given a favourable opinion on the new request for release which he had made some time before; they noted, amongst other things, that he would more easily find a job at that time than at the expiry of the term fixed in 1965 by the Brussels magistrate, that is in the month of November.

In the application which he lodged with the Commission on 16th August 1966 (No. 2899/66) and supplemented on 6th September 1966, the applicant invoked Articles 4, 5 and 6 (3) (c) (art. 4, art. 5, art. 6-3-c) of the Convention. He complained in the first place of his detention: he emphasised that he had a fixed abode at Brussels-Schaarbeek and had never begged and so he was surprised at having been placed in a vagrancy centre. He further alleged that he had had no opportunity of defending himself before the Brussels police court on 4th November 1965 as the hearing had lasted "scarcely two minutes" and he had not been granted free legal aid. He also complained of various features of the regime to which he was subjected. In order to prevent him accumulating the 2,000 BF required to constitute release savings, he had been left, he alleged, for several months without sufficient work. In a general way, he added, the directors of the various institutions acted in concert in order to prolong the detention of vagrants as much as possible; the Government, for its part, "encouraged" vagrancy which gave it a labour force almost without cost (1.75 BF per hour at manual work) and huge profits. Finally, Versyp maintained that his numerous letters addressed to the competent authorities, such as, for example, the inspector of prisons, the public prosecutor’s office (July 1966) and the Minister of Justice (June and August 1966), invariably returned "to the director" who filed them without further action; these letters were not the object of any decision or, like his request for a transfer to Brussels, met with a refusal. One of them, that addressed on 7th February 1966 to the Minister of Justice by registered post, had even been opened by the director of the Wortel settlement who had not sent it.

On 7th April 1967, the Commission declared the application admissible; it had previously ordered its joinder with the applications of Jacques De Wilde and Franz Ooms.

According to Article 347 of the Belgian Criminal Code of 1867 "vagrants are persons who have no fixed abode, no means of subsistence and no regular trade or profession". These three conditions are cumulative: they must be fulfilled at the same time with regard to the same person.

Vagrancy was formerly a misdemeanour (Criminal Code of 1810) or a petty offence (Act of 6th March 1866), but no longer of itself constitutes a criminal offence since the entry into force of the 1891 Act: only "aggravated" vagrancy as defined in Articles 342 to 345 of the present Criminal Code is a criminal offence and these articles were not applied in respect of any of the three applicants. "Simple" vagrancy is dealt with under the 1891 Act.

According to Section 8 of the said Act "every person picked up as a vagrant shall be arrested and brought before the police court" - composed of one judge, a magistrate. The public prosecutor or the court may nonetheless decide that he be provisionally released (Section 11).

"The person arrested shall be brought before the magistrate within twenty-four hours and in his ordinary court, or at a hearing applied for by the public prosecutor for the following day". If that person so requests "he (shall be) granted a three days’ adjournment in order to prepare his defence" (Section 3 of the Act of 1st May 1849); neither De Wilde, nor Ooms nor Versyp made use of this right.

Where, after having ascertained "the identity, age, physical and mental state and manner of life" of the person brought before him (Section 12), the magistrate considers that such person is a vagrant, Section 13 or Section 16 of the 1891 Act becomes applicable.

Section 13 deals with "able-bodied persons who, instead of working for their livelihood, exploit charity as professional beggars", and with "persons who through idleness, drunkenness or immorality live in a state of vagrancy"; Section 16 with "persons found begging or picked up as vagrants when none of the circumstances specified in Section 13 ... apply".

In the first case the court shall place the vagrant "at the disposal of the Government to be detained in a vagrancy centre, for not less than two and not more than seven years"; in the second case, the court may "place (him) at the disposal of the Government to be detained in an assistance home" for an indeterminate period which in no case can exceed a year (see paragraph 40 below).

Section 13 was applied to Jacques De Wilde and Edgard Versyp and Section 16 to Franz Ooms.

The distinction between the "reformatory institutions" referred to as "vagrancy centres" and "assistance homes" or "welfare settlements" (Sections 1 and 2 of the Act) has become a purely theoretical one; it has been replaced by a system of individual treatment of the persons detained.

Detention in a vagrancy centre is entered on a person’s criminal record; furthermore, vagrants "placed at the disposal of the Government" suffer certain electoral incapacities (Articles 7 and 9 of the Electoral Code).

Magistrates form part of the judiciary and have the status of an officer vested with judicial power, with the guarantees of independence which this status implies (Articles 99 and 100 of the Constitution). The Court of Cassation, however, considers that the decisions given by them in accordance with Sections 13 and 16 of the 1891 Act are administrative acts and not judgments within the meaning of Section 15, sub-section 1, of the Act of 4th August 1832. They are not therefore subject to challenge or to appeal nor - except when they are ultra vires (see paragraph 159 of the Commission’s report) – to cassation proceedings. The decisions of the highest court in Belgium are uniform on this point.

As to the Conseil d’État, it has so far had to deal with only two appeals for the annulment of detention orders for vagrancy. In a judgment of 21st December 1951 in the Vleminckx case, the Conseil d’État did not find it necessary to examine whether the Brussels police court’s decision taken on 14th July 1950 in pursuance of Section 13 of the 1891 Act emanated from an authority which was "acting as an administrative authority within the meaning of Section 9 of the Act of 23rd December 1946"; the appeal lodged by Mr. Vleminckx on 31st July 1950 had been dismissed because:

"the decision appealed against (was) a preliminary decision which (had been) followed by the Government’s decision to detain the appellant in a vagrancy centre ...; the appellant (could) not establish that he (had) any interest in the annulment of a decision which merely (allowed) the Government to detain him, while the actual decision by which he was interned (had not) been appealed against".

As against this, on 7th June 1967, that is two months after the Commission had declared admissible the applications of Jacques De Wilde, Franz Ooms and Edgard Versyp, the Conseil d’État gave a judgment annulling the decision by which on 16th February 1965 the Ghent police court had placed a Mr. Du Bois at the disposal of the Government in pursuance of Section 16 of the 1891 Act. Before examining the merits, the Conseil d’État examined the admissibility - contested by the Minister of Justice - of the appeal lodged by Mr. Du Bois on 14th April 1965. In the light of the legislative texts in force, of the preparatory work thereto and of "the consistent case-law of the ordinary courts", the Conseil d’État considered that the placing of a vagrant at the disposal of the Government does not result from "the finding of a criminal offence" but amounts to "an administrative security measure" and that the decision ordering it is therefore "of a purely administrative nature" "so that no form of appeal is open to the person concerned ... before the ordinary courts". It added that "such an administrative decision by the magistrate" could not be considered as "a preliminary measure enabling the Government to take the effective decision on the matter of detention but is itself the effective decision placing the person concerned in a different legal position and is therefore of itself capable of constituting a grievance"; in any event, "the person concerned is immediately deprived of his liberty without any further decision by the Government".

Section 20, sub-section 2, of the Act of 23rd December 1946 constituting the Conseil d’État provides that where both this body and "an ordinary court rule that they are either competent or incompetent to entertain the same proceedings, the conflict of jurisdiction is settled, on the motion of the most diligent party, by the Court of Cassation" in plenary session. No such conflict appears to have come before the highest court of Belgium in vagrancy matters up to the present time.

The Belgian Government has had the reform of the 1891 Act under consideration for some time. According to the information given to the Court on 17th November 1970, the Bill which it is preparing to submit to Parliament provides in particular that an appeal against the magistrates’ decisions may be made to the court of first instance.

"Able-bodied persons detained in a vagrancy centre or assistance home" are "required to perform the work prescribed in the institution" (Section 6 of the 1891 Act). Persons who, like Jacques De Wilde, and Edgard Versyp, refuse to comply with this requirement without good reason, in the opinion of the authorities, are liable to disciplinary measures. "Infirmity, illness or punishment may lead to a suspension, termination or stopping of work" (Articles 64 and 95, read in conjunction, of the Royal Decree of 21st May 1965 laying down general prison regulations).

"Unless stopped for disciplinary reasons", detained vagrants are entitled to "a daily wage" known as "allowances". Sums are retained "for administrative expenses" - "for the benefit of the State" – and "to form the release savings" which shall be "granted ... partly in cash and partly in clothing and tools". The Minister of Justice fixes the amount of the said release savings and, having regard to the various categories of detained persons and of work, the wages and the sums to be retained (Sections 6 and 17 of the 1891 Act; Articles 66 and 95, read in conjunction, of the Royal Decree of 21st May 1965).

At the time of the detention of the three applicants, the amount of the release savings which had to be thus accumulated - sums of money which a vagrant may receive from other sources not being taken into account - was fixed at 2,000 BF, at least for the "inmates" of welfare settlements (ministerial circular of 24th April 1964).

The minimum hourly allowance "actually paid" to detainees - save any deductions made for "wastage and poor work" - was 1,75 BF up to 1st November 1966, on which date it was increased by 25 centimes (ministerial circulars of 17th March 1964 and 10th October 1966). The allowance was not capable of assignment or liable to seizure in execution and was divided into two equal parts: "the reserved portion" which was credited to the person concerned and enabled him to form his release savings and the free portion which he received immediately (Articles 67 and 95, read in conjunction, of the Royal Decree of 21st May 1965).

According to Articles 20 to 24 and 95 of the Royal Decree of 21st May 1965, the correspondence of detained vagrants - who, in this as well as in other respects, are assimilated to convicted persons - may be subjected to censorship except any correspondence with the counsel of their own choice, the director of the institution, the inspector-general and the director-general of the prison administration, the secretary-general of the Ministry of Justice, the judicial authorities, the ministers, the chairmen of the legislative Chambers, the King, etc. Their correspondence with the Commission is not mentioned in this Decree but the Minister of Justice informed the governors of prisons and Social Protection Institutions, including those at Merksplas and Wortel, that "a letter addressed to this organ by a detainee is not to be censored but should be forwarded, duly stamped for abroad by the sender ..., to the Legal Department ... which shall undertake to transmit it to its destination" (circular of 7th September 1957 as it was in force at the time of the detention of the applicants; see also paragraph 31 above).

"Persons detained in an assistance home" - as Franz Ooms - may not "in any case be kept against their will for more than one year" (Section 18, first sentence, of the 1891 Act). They regain their freedom, as of right, before the expiry of this period "when their release savings (have reached) the amount ... fixed by the Minister of Justice", who shall, moreover, release them if he considers their detention "to be no longer necessary" (Sections 17 and 18, second sentence, of the 1891 Act).

As regards vagrants detained in a vagrancy centre - such as Jacques De Wilde and Edgard Versyp - they leave the centre either at the expiry of the period varying from two to seven years "fixed by the court" or at an earlier date if the Minister of Justice considers "that there is no reason to continue their detention" (Section 15 of the 1891 Act); the accumulation of the release savings and any other means which the detainee might have do not suffice for this purpose.

It seems that no detained vagrant has to date lodged an appeal with the Conseil d’État, under Article 9 of the Act of 23rd December 1946, for the annulment of a ministerial decision which had rejected his application for release.

Before the Commission and Sub-Commission, the three applicants invoked Articles 4, 5 (1), 5 (3), 5 (4), 6 (1), 6 (3) (b) and (c), 7, 8 and 13 (art. 4, art. 5-1, art. 5-3, art. 5-4, art. 6-1, art. 6-3-b, art. 6-3-c, art. 7, art. 8, art. 13) of the Convention. Two of them, De Wilde and Versyp, also alleged that Article 3 (art. 3) had not been observed.

In its report of 19th July 1969, the Commission expressed the opinion:

- that there was a violation of Articles 4 (art. 4) (nine votes to two), 5 (4) (art. 5-4) (nine votes to two) and 8 (art. 8) (ten votes to one);

- that there was no violation of Articles 3 (art. 3) (unanimous) and 5 (1) (art. 5-1) (ten votes to one);

- that Articles 5 (3) (art. 5-3) (unanimous), 6 (1) (art. 6-1) (ten votes to one), 6 (3) (art. 6-3) (ten votes to one) and 7 (art. 7) (unanimous) were inapplicable.

The Commission was further of the opinion that "it (was) no longer necessary to consider Article 13 (art. 13)" (unanimous).

The report contains several individual opinions, some concurring, others dissenting.

After the cases were brought before the Court the applicants repeated, and sometimes developed, in a memorandum which the Commission appended to its memorial, the greater part of their earlier arguments. They indicated their agreement or otherwise, according to the case, with the opinion of the Commission, to which De Wilde and Versyp "bowed" as regards Article 3 (art. 3) of the Convention.


Violation of Art. 6-1;Violation of P1-1;Pecuniary damage - financial award;Non-pecuniary damage - financial award

The applicant company is a debt collector. In July 1999, it bought a defaulted State bond and sued the Government for the debt. After several years of litigation, on 10 April 2002 the Moscow City Commercial Court ordered the Government to pay the applicant company 100,000 American dollars (“USD”).

On 5 August 2002, the Appeals Division of the Moscow City Commercial Court upheld the judgment, but speciﬁed that the debt was to be paid by the Ministry of Finance.

On 6 November 2002, the ministry asked the court to stay the enforcement of the judgment until January 2003, because there were no funds in the State budget of 2002.

On 19 November 2002, bailiffs opened enforcement proceedings.

On 16 December 2002, the court refused to stay the enforcement because the ministry had failed to prove either that it did not have the funds, or that the funds would become available after January 2003.

On 7 February 2003, the ministry asked the court to stay the enforcement of the judgment until January 2004, because there were no funds in the State budget of 2003.

On 20 March 2003, the court refused to stay the enforcement because the ministry had failed to prove either that it did not have the funds, or that the funds would become available after January 2004.

In August 2003, the ministry asked the appeal court to clarify how the judgment was to be enforced.

On 3 September 2003, the appeal court clariﬁed that the judgment was to be enforced only once the applicant company had handed in the bond. The applicant company appealed against this decision because the general conditions of the bond’s issue did not require that it be handed in. In addition, the applicant company argued that the judgment could be enforced on the basis of a writ of enforcement alone, and that the bond was to be returned to the ministry only after the enforcement. On 25 November 2003, the Federal Commercial Court of the Moscow Circuit dismissed this appeal.

On 18 February 2004, the applicant company handed in the bond to the ministry.

Subsequently, the applicant company unsuccessfully sought an injunction to oblige the ministry to enforce the judgment.


Violation of Art. 6-1;Violation of Art. 10

Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens

The applicant was born in 1966 and lives in Arkhangelsk.

The applicant, an advocate at the time, acted as defence counsel for a Mr R.

On 5 August 2003 the Primorskiy District Court of Arkhangelsk, chaired by judge V., removed the applicant from his position as Mr R.'s counsel. The District Court found that the applicant had acted contrary to the Code of Criminal Procedure and the Advocate's Code of Ethics. The court noted, in particular:

“Persistent and repeated voluntary statements made by [the applicant] that he provided legal advice to witnesses N. and S. and at the same time acted as counsel for defendant R. ... show that [the applicant], in violation of the formal requirements of the Russian Code of Criminal Procedure, provided legal advice and acted as counsel in respect of persons whose interests were in conflict. Therefore, it is not possible for [the applicant] to continue to participate in the trial as legal counsel for defendant R. or to provide legal advice to N. and S.”

On 26 September 2003 the District Court found Mr R. guilty as charged.

On 16 December 2003 the Arkhangelsk Regional Court quashed Mr R.'s conviction and remitted the matter for fresh consideration. The court also upheld on appeal the decision of 5 August 2003.

On 22 December 2003 the applicant asked the Presidium of the Regional Court for supervisory review of the judicial decisions to remove him from being Mr R.'s representative.

On 2 February 2004 judge A. of the Regional Court dismissed the above complaint. In particular, the judge noted as follows:

“I hereby return your complaint against ... the decisions ... of 5 August 2003 and 16 December 2003 without having considered it on the merits. [The reason for this is that] the Primorskiy District Court of the Arkhangelsk Region opened R.'s trial on 22 January 2004 and it is impossible to verify the lawfulness and inconsistency of the decisions in question.”

On 9 February 2004 the applicant filed a complaint against the judges who had participated in the proceedings for the determination of the criminal charge against Mr R., alleging that they had acted in violation of the rules of criminal procedure by refusing to consider his application for supervisory review in respect of the decision of 5 August 2003. The complaint was addressed to the President of the Supreme Court of the Russian Federation with a copy to the President of the Arkhangelsk Regional Court. The applicant asked for the President's intervention which would prompt, in his opinion, the Arkhangelsk Regional Court to respond to his application for supervisory review.

In particular, the applicant made the following comments in the complaint:

“... Judges A. and V. used to “plough the fields of justice together” at the Arkhangelsk Regional Prosecutor's Office, and, apparently, they “continue their joint efforts now” at the Arkhangelsk Regional Court ...

... In my opinion, either judge A. is not quite familiar with the law, which is sad, or judge A. wilfully and knowingly restricts my access to court, which is twice as sad ...

... On 2 February 2004 I received an absolutely unlawful “brush-off” reply from judge A ...

... [Judge A.] could have unglued his posterior from [his] seat and brought it to the premises of the Primorskiy District Court ...

... Otherwise, why would judge A. receive such a salary which I, as a tax payer, contribute to? ...

... But judge A. simply pushed away my [request for] supervisory review and, by doing so, he seriously violated the rules of criminal procedure and my constitutional rights ...

... I believe that one telephone call from the Supreme Court of the Russian Federation will be enough to make the Arkhangelsk Regional Court consider my complaint on the merits ...”

The President of the Supreme Court forwarded the applicant's complaint to the Arkhangelsk Regional Court for further action. The President of the Arkhangelsk Regional Court lodged a complaint with the Council of the Arkhangelsk Region Bar Association (the “Council”) alleging that the above comments were offensive and incompatible with the Advocate's Code of Professional Conduct. He stated as follows:

“In our opinion, [the applicant's complaint] contains remarks which are offensive and tactless vis-à-vis certain judges of the Arkhangelsk Regional Court.

We believe that the content and the style of the complaint are impermissible.

In our view, the reference made by [the applicant] in his complaint addressed to the President of the Supreme Court of Russia that ... a decision could be made in response to his application for supervisory review through a telephone call ... shows that he is lacking the qualities appropriate to his profession.

[A]dvocates should, under any circumstances, be tactful and correct vis-à-vis their counterparts and public officers, including judges. [They] should demonstrate respect towards the court and challenge [judicial] acts correctly and in accordance with the law.

Having regard to the above ... I hereby request that you follow up on the applicant's conduct and inform the Arkhangelsk Regional Court of the measures taken.”

On 21 April 2004 the Council held a disciplinary hearing. The applicant did not challenge the offensive character of the comments. He submitted that he had been, in a way, provoked by the judges' allegedly unlawful decisions. The Council granted the complaint and terminated the applicant's bar membership as of 22 April 2004. In particular, the Council noted as follows:

“[The applicant's complaint] addressed to the President of the Supreme Court of Russia contains tactless remarks in respect of certain judges of the Arkhangelsk Regional Court, which amounts to a violation of the Advocate's Code of Professional Conduct ...

The content and the style of the [applicant's] complaint addressed to the President of the Supreme Court of Russia are impermissible.

The reference made by [the applicant] in his complaint addressed to the President of the Supreme Court of Russia that ... a decision could be made in response to his application for supervisory review through a telephone call ... shows that he is lacking the qualities appropriate to his profession.

[A]dvocates should, under any circumstances, be tactful and correct vis-à-vis ... judges. [They] should demonstrate respect towards the court and challenge [judicial] acts correctly and in accordance with the law.”

The applicant appealed to the court. He claimed that he was disliked by the members of the Council and their decision had been retaliation against him for his personal views and convictions. He also alleged that the disciplinary hearing had been carried out with certain procedural irregularities.

On 22 June 2004 the Oktyabrskiy District Court of Arkhangelsk dismissed the claim brought by the applicant against the Bar Association seeking reinstatement of his membership. The applicant appealed.

On 9 August 2004 the applicant asked the Arkhangelsk Regional Court to transfer the case to another jurisdiction for consideration. The applicant alleged that any judge of the Regional Court would be biased against him because the original complaint which had prompted the disciplinary proceedings against him had been lodged by the President of the said court. On the same day judge M. of the Regional Court refused to consider the applicant's request and returned the relevant documents to him. In particular, the judge informed the applicant as follows:

“I hereby return your application stating the challenge to the whole composition of ... the Arkhangelsk Regional Court and advise you that, pursuant to the rules of civil procedure, it is only possible to challenge the specific judges who are appointed to consider your case and not the whole composition of [the court].”

On 16 August 2004 the Arkhangelsk Regional Court upheld the judgment of 22 June 2004 on appeal. The court dismissed as unsubstantiated the applicant's allegations of the Council's partiality. Nor did it discern any procedural irregularities in the applicant's disbarment.

The Advocate's Code of Professional Conduct (Article 18 § 1) establishes that an advocate may be subject to disciplinary proceedings for a failure to abide by legislation concerning advocates' activities and advocacy and for failure to abide by the Code itself. Any impropriety discrediting an advocate's professional integrity or the legal profession, a breach of the care of duty vis-à-vis his or her client, or a failure to abide by the decisions of the qualifications committee and council of the advocates' chamber gives rise to disciplinary liability (Article 19 § 1).

The disciplinary sanctions available are: reprimand; warning; disbarment; or other sanctions as determined by the conference of the advocates' chamber (Article 18 § 2).

The Judges' Status Act stipulates in section 6.2 that, in addition to the performance of judicial functions, the president of a court:

“(1) organises the work of the court;

(2) determines the court's internal regulations on the basis of the model regulations adopted by the Council of the Judges of the Russian Federation and supervises compliance therewith;

(3) distributes the workload between the deputy presidents and ... judges;

(4) organises the judges' training;

(5) carries out the general management of the court's office as follows: hires and dismisses the court's employees; distributes the workload between them; decides on [their] performance awards and disciplinary liability; organises training for the court's employees;

(6) informs on a regular basis the judges and the court's employees of his [or her] activities and [the] activities of the court; and

(7) performs other functions pertaining to the organisation of the court's work.”

The Russian Code of Civil Procedure (Article 21) provides that, should a challenge against a judge or panel of the judges be granted, the matter should be transferred to another judge or judicial panel within the same Regional Court. If the challenge to a judge or a judicial panel is granted and it is no longer possible to form a new judicial panel to consider the case, it should be transferred to the Supreme Court of Russia which will reassign it to another court.

The court should transfer the case to another court if, following a challenge to one or several judges or due to other reasons, it cannot consider the case. The transfer of the case is carried out by the relevant superior court (Article 33 § 2 (4) of the Russian Code of Civil Procedure).

Pursuant to decision no. 72-G03-6 of the Supreme Court of Russia of 1 April 2003, the Supreme Court of Russia granted a request lodged by the Chita Regional Court to transfer a case concerning a defamation action lodged by a judge of the Chita Regional Court. The case was transferred to the Irkutsk Regional Court. In particular, the Supreme Court of Russia noted as follows:

“... [I]n these circumstances, the matter cannot be considered in accordance with the rules of jurisdiction due to objective reasons. Given that the action was lodged by K.I.V., a judge of the Chita Regional Court, [that court] upheld ... the challenge to the whole panel of the Chita Regional Court and, pursuant to Article 21 § 4 of the Russian Code of Civil Procedure, forwarded the case to the Supreme Court of Russia for determination of its jurisdiction.

The Constitutional Court of Russia has noted in its ruling ... of 16 March 1998 that “under certain circumstances (for example, if a civil action is lodged against a judge or by a judge of the same court, and if the court which has jurisdiction over the matter does not function for one reason or another), the change of the jurisdiction of the matter is not only possible, but is sometimes necessary.

Pursuant to [Article 33 § 2 (4) of the Russian Code of Civil Procedure], the court transfers the case to another court if, following the challenge to one or several judges or due to other reasons, the replacement of the judge or consideration of the case by the court becomes impossible. The transfer of the case is effected by a superior court.”


David Thór Björgvinsson;George Nicolaou;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Päivi Hirvelä

The eight applicants are a family. The first applicant, Christina Papaioannou, is the mother of the other seven applicants, Ioannis Papaioannou, Demetris Papaioannou, Eftihia Hadjinicolaou (née Papaioannou), Neophytos Papaioannou, Stavros Papaioannou, Panayiotis Papaioannou and Andreas Papaioannou. They are all Cypriot nationals of Greek-Cypriot origin born in 1929, 1949, 1951, 1952, 1957, 1962 and 1966 respectively. Applicants nos. 1, 2, 3, 6 and 7 are living in Deryneia and applicants nos. 4, 5 and 8 are living in Nicosia. They are represented before the Court by Mr A. Demetriades and Ms E.Nathanael, lawyers practising in Nicosia.

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

The applicants are owners and/or part owners of seven plots of land and three houses all situated in the area of Famagusta. Five of the plots of land were used for agricultural purposes and according to the applicants the produce from these plots was the main source of their family income. The three houses were situated on the remaining two plots of land. One of the houses was rented out whilst the other two were the homes of the applicants.

In July 1974, the applicants were forced to abandon their homes and property in Famagusta. They have not had access and/ or use of them ever since.


Preliminary objection joined to merits and dismissed (non-exhaustion of domestic remedies);Violation of Art. 3 (substantive aspect);Violation of Art. 3 (procedural aspect);Violation of Art. 5-3;Violation of Art. 5-4;Violation of Art. 6-1;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - award

András Sajó;David Thór Björgvinsson;Françoise Tulkens;Guido Raimondi

The applicant was born in 1974 and is currently detained in Kırklareli Etype Prison pending the criminal proceedings against him.

On 5 February 1997 the applicant was arrested and taken into police custody by police officers from the Anti-Terrorist Branch of the Istanbul Police Headquarters on suspicion of membership of an illegal organisation.

On 19 February 1997 a single judge at the Istanbul State Security Court ordered the applicant’s pre-trial detention.

On 20 May 1997 the public prosecutor at the Istanbul State Security Court filed a bill of indictment with that court, charging the applicant with attempting to undermine the constitutional order, an offence proscribed by Article 146 § 1 of the former Criminal Code.

On 8 February 2002 the Istanbul State Security Court convicted the applicant as charged and sentenced him to death.

On 15 October 2002 the Court of Cassation quashed the judgment of the Istanbul State Security Court on account of a procedural defect which had prejudiced the rights of the defence.

In the meantime on 4 September 2002 the Head Office of the Institute of Forensic Medicine issued a report noting that the applicant suffered from Wernicke-Korsakoff syndrome and recommended the suspension of the execution of his sentence for a period of six months for medical reasons. It appears that this recommendation was not taken into account by the authorities.

State Security Courts were abolished by Law no. 5190 of 16 June 2004, published in the Official Gazette on 30 June 2004. The case against the applicant was therefore transferred to the Istanbul Assize Court.

At the hearing held on 6 August 2008, the applicant asked to be released in view of the excessive amount of time he had already spent in pre-trial detention. The Fourteenth Chamber of the Istanbul Assize Court, however, ordered the applicant’s continued detention in view of the nature of the offence, the existence of a strong suspicion that the applicant had committed the offence and the possibility that he would abscond if released.

On 13 August 2008 the applicant objected to the decision of 6 August 2008 and again requested his release.

On 25 August 2008 the Ninth Chamber of the Istanbul Assize Court dismissed the applicant’s objection without holding a hearing and without providing any reasons for its decision.

On 18 December 2009 the Istanbul Assize Court convicted the applicant as charged under Article 146 § 1 of the former Criminal Code and sentenced him to aggravated life imprisonment. The applicant appealed this judgment.

According to the information in the case file, the case is still pending before the Court of Cassation.

On an unspecified date the applicant was temporarily transferred from Kırklareli E-type Prison to Istanbul Bayrampaşa Prison to attend the final exams at Marmara University, where he was registered as a student.

On 11 June 2007, before he was transferred from Istanbul back to Kırklareli following the end of the exam period, he was medically examined by the resident doctor at Bayrampaşa Prison, who noted no signs of illtreatment on his body. On the same day the applicant also signed a document stating that he had not been illtreated or subjected to any other adverse treatment during the course of his transfer to Kırklareli and that the gendarmerie personnel had not confiscated his money or other valuables. At 10.00 p.m. on the same day he was handed back to the prison authorities in Kırklareli.

On 12 June 2007 the applicant lodged a complaint with the Kırklareli Public Prosecutor’s Office against the gendarme soldiers in charge of his transfer, alleging that he had been tortured at their hands during the transfer from Istanbul to Kırklareli, and requested to be referred to the forensic medicine institute for examination. He also complained that the gendarme soldiers in question had appropriated under duress two gold and two silver rings he was wearing on the relevant day and he requested the return thereof.

On the same day a doctor at the Kırklareli Forensic Medicine Institute examined the applicant and noted a slight abrasion on the right inner corner of his upper lip, bruising and swelling on his biceps, pain on his tenth, eleventh and twelfth right ribs, widespread hyperaemia and pain in his right axial region (7-8 cm below the armpit) caused by physical trauma, pain and swelling around the metatarsal bones of his left foot, pain in the waist area and throat and difficulty in swallowing related to trauma. The report noted that the symptoms were likely to be the result of beatings or violence, and requested the applicant’s referral to Kırklareli State Hospital for the verification of any fractured bones.

On 13 June 2007 the applicant was examined at Kırklareli State Hospital, where it was noted that the injuries he had sustained were not life- threatening and would not cause long-term damage to his health.

On 10 September 2007 the applicant repeated his allegations of illtreatment against the gendarmerie personnel before the Fourteenth Chamber of the Istanbul Assize Court.

On 12 June 2007 Kırklareli Public Prosecutor interrogated the applicant regarding his allegations of ill-treatment. The applicant contended that on 11 June 2007, before he was put in the patrol wagon bound for Kırklareli Prison, a gendarme sergeant and ten gendarme soldiers in his command had shoved him into a toilet at Bayrampaşa Prison and beaten him up, squeezed his testicles, hit his throat with a truncheon and insulted him. He claimed that this treatment had mainly resulted from his refusal to comply with the gendarmes’ orders to remove and hand over his rings prior to the transfer.

On 14 June 2007 the Kırklareli Public Prosecutor issued a decision of lack of jurisdiction (görevsizlik kararı) in respect of the applicant’s complaints and referred the matter to the Eyüp Public Prosecutor.

On 10 January 2008 the Eyüp Public Prosecutor interrogated the gendarme sergeant, N.T., who had been in charge of the applicant’s transfer from Kırklareli to Istanbul on 11 June 2007. N.T. stated that he had no recollection of the applicant, nor of the events as recounted by him, and denied the allegations against him. He added that in accordance with the relevant regulations and instructions, prisoners’ valuables were removed prior to any transfer and handed over to the prison administration, which was responsible for their subsequent return to the prisoner.

On the same day the Eyüp Public Prosecutor requested information from the administration of Bayrampaşa Prison in respect of the applicant’s confiscated rings. On 15 January 2008 the prison administration informed the public prosecutor that the applicant’s personal belongings had been handed over to his wife on 18 June 2007.

On 25 February 2009 the Eyüp Public Prosecutor filed a bill of indictment with the Eyüp Magistrates’ Court against N.T., charging him with the offence of causing bodily harm under Article 86 §§ 2 and 3 of the Criminal Code and excessive use of force under Article 256 of the Criminal Code. The public prosecutor noted that despite N.T.’s outright denial of the charges against him, the findings of the medical report dated 12 June 2007 appeared to corroborate the applicant’s allegations of ill-treatment. He further specified in the bill of indictment that since the offences in question did not fall within the scope of Law no. 4483 (Law on the Prosecution of Civil Servants and Public Officials), no administrative authorisation was required for N.T.’s prosecution.

On 2 March 2009 the Eyüp Magistrates’ Court admitted the indictment and ordered that the first hearing be held on 10 November 2009. According to the information in the case file, the proceedings are still pending before the Eyüp Magistrates’ Court.

A description of the relevant domestic law and practice concerning judicial review of pre-trial detention under the former Code of Criminal Procedure (Law no. 1412) may be found in Çobanoğlu and Budak v. Turkey (no. 45977/99, §§ 29-31, 30 January 2007).

Section 1 of Article 141 of the new Code of Criminal Procedure provides the following:

“Persons; ...

b) who were not brought before a judge within the period prescribed by law,

d) who were lawfully detained but not brought before a legal authority within a reasonable time and who were not tried within a reasonable time,

during the criminal investigation or prosecution may demand compensation for all pecuniary and non-pecuniary damage they sustained from the State.”

Section 1 of Article 142 of the new Code of Criminal Procedure further provides:

“Compensation may be demanded [from the State] within three months from the date of service of the final ... judgment and, in any case, within one year following the date on which the ... judgment becomes final.”


The applicant is a Polish national, born in 1948. He is a lawyer and lives in Warsaw.

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

On 27 July 1993 the applicant filed with the Warsaw District Court (Sąd Rejonowy) an action against the Ministry of Foreign Affairs for which he used to work as a vice-consul at the Polish Consulate General in New York until 31 August 1992. He claimed compensation for the airplane tickets he had purchased for himself and his family in order to return from New York to Poland.

On 5 August 1993 the applicant’s case was transferred to the Second Civil Section of the Warsaw District Court. On 2 December 1993 the Second Civil Section decided that the case should be transmitted to the Labour Section of the Warsaw District Court as it concerned a claim based on labour law. On 23 March 1994 the case was received by the registry of the Labour Section.

The first hearing was fixed for 23 June 1994. On 22 June 1994 the defendant requested the court to postpone the hearing as its counsel was on leave and the applicant’s written submissions were extensive. During the hearing held on 23 June 1994 the court decided to adjourn it until 6 October 1994.

On 6 October 1994 the hearing was adjourned until 12 January 1995 as the presiding judge was on sick leave.

On 17 October 1994 the court requested the defendant to submit a reply to the applicant’s statement of claim.

During the hearing held on 12 January 1995 the court decided that a certain M.B., an employee of the defendant, should be heard as a witness and adjourned the hearing until 20 April 1995. At the same time the court instructed the defendant to provide it with the address of M.B.

On 24 January 1995 the defendant informed the court that M.B. was living in New York where he had been appointed as a consul at the Consulate General of the Republic of Poland.

The hearing held on 20 April 1995 was adjourned as the witness M.B. was not present.

On 11 September 1995 and 11 October 1996 the District Court requested the Department of International Law of the Ministry of Justice to take evidence from M.B. In a letter of 15 January 1997 the Ministry of Justice informed the President of the District Court that it faced difficulties in taking evidence from M.B. It also advised the President that he might wish to prepare another request for taking evidence from that witness and submit it directly to the concerned Polish diplomatic mission in the United States.

On 9 July 1997 the District Court again requested the Ministry of Justice to assist it in taking evidence from M.B.

On 22 July 1997 the defendant submitted a duly certified written statement made by M.B.

On an unspecified date in 1997 M.B. returned to Warsaw, where he continued to work for the defendant.

The next hearing held on 10 December 1997 at 11 a.m. was adjourned after the counsel for the defendant informed the court that M.B. could not attend since he was on vacation outside Warsaw. The applicant submits that in the afternoon of that day he made a phone call to M.B. who was in his office in Warsaw and who informed him that although formally he was on leave, he had nevertheless come to work on that day.

The hearing held on 8 April 1998 was adjourned after the court took evidence from M.B. and requested the applicant to submit copies of insurance policies which he had purchased before his departure from the United States.

The hearing held on 25 May 1998 was adjourned due to the illness of the presiding judge.

On 28 September 1998 the last hearing before the first-instance court took place.

On 5 October 1998 the Warsaw District Court delivered a judgment dismissing the applicant’s action.

On 3 November 1998 the applicant was served with the reasoned judgment of the District Court.

On 4 November 1998 the applicant lodged with the Warsaw Regional Court an appeal against the judgment of the District Court. On 10 November 1998 the applicant’s appeal was transmitted to the defendant. On 5 January 1999 the defendant submitted to the Warsaw Regional Court its reply.

On 7 January 1999 the Regional Court held a hearing. On 21 January 1999 the court delivered a judgment in which it awarded the applicant USD 1,789 together with interest and dismissed the remaining part of his claim.

On 22 April 1999 the applicant lodged with the Supreme Court (Sąd Najwyższy) a cassation appeal. On 22 July 1999 the Supreme Court rejected the appeal because such a remedy was not provided in the applicant’s case since his claim was below the PLN 5,000 threshold set by the legislation for cassation appeals. In addition, the court observed that the cassation appeal had been lodged by the applicant instead of qualified counsel.

On 31 December 1999 the applicant lodged with the Supreme Court a further appeal challenging the decision rejecting his cassation appeal. On 23 March 2000 the Supreme Court rejected the appeal because such a remedy was not provided by law.


Alvina Gyulumyan;Corneliu Bîrsan;Ján Šikuta;Johannes Silvis;Josep Casadevall;Luis López Guerra;Nona Tsotsoria

The applicant, Mr Lee Summerfield Rushing, is a citizen of the United States of America (USA), who was born in 1943. He was detained in the Netherlands at the time of the introduction of the application. He was represented before the Court by Mr D.W.H.M. Wolters, a lawyer practising in Hoofddorp.

The Netherlands Government (“the Government”) were represented by their Agent, Mr R.A.A. Böcker, of the Ministry of Foreign Affairs.

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

On 28 August 1997 an arrest warrant was issued by the USA federal authorities against the applicant who was suspected of having imported into the USA almost 23,000 kg of marihuana from Pakistan.

On 21 November 2008, the applicant was apprehended at Schiphol Airport in the Netherlands.

On 7 January 2009, the USA Government requested the extradition of the applicant.

On 31 March 2009, the Regional Court (rechtbank) of Haarlem considered the applicant’s extradition permissible and advised the Minister of Justice (Minister van Justitie; “the Minister”) accordingly. It held that the applicant had failed to establish that a mandatory life sentence would be imposed on him.

The applicant appealed this decision. The Supreme Court (Hoge Raad) accepted the appeal on 22 September 2009, in so far as the Regional Court had failed to set out the applicable domestic law, but dismissed the appeal on all other grounds, considered the extradition permissible and advised in favour of the extradition.

On 13 October 2009, the Department for International Legal Aid (Afdeling internationale rechtshulp in strafzaken; “the Department”) of the Netherlands Ministry of Justice (Ministerie van Justitie) asked their USA counterpart the following questions:

“The lawyer of Lee Rushing states that extradition would be inhumane since he faces a life time imprisonment (since he will be tried for the third time). Is it correct that due to the third criminal case/conviction against him that the judge will have to apply the life time imprisonment in that state or does he have a choice? The competent judicial authority is the federal district court in Seattle, Washington.”

On 15 October 2009, the USA Department of Justice responded as follows:

“In answer to your question about the sentencing options for Rushing, once he’s extradited, first, there is NO possibility of a mandatory life sentence. In addition, there is no “3 strikes” rule in the federal system. There is a statutory range of 10 years to life in prison (as stated in the extradition affidavit); there are also federal sentencing guidelines. Below is a brief explanation of the statute and guidelines, which are advisory only.

Statutory Penalty: The First Superseding Indictment charges the defendant, Lee Rushing, with conspiracy to import and distribute hashish in violation of Title 21, United States Code, Sections 841 (a)(1), 841 (b)(1)(A), 846, 952, 960 (a), 960(b)(1) and 963. These statutes provide for a penalty of not less than 10 years and not more than life in prison.

Sentencing Guidelines: In addition, there are non-mandatory sentencing guidelines that will be relevant to the defendant’s sentence. In this case, the government would anticipate, based on the facts, that the following adjustments would apply:

Base Offense Level: The base offense level would be 38 under USSG [United States Sentencing Guidelines] 2D1, based on the quantity of hashish.

Leadership: The defendant would likely receive an upward adjustment of four (4) levels under USSG 3B1.1(a), as the defendant was an organizer and leader of a criminal activity involving more than five people.

Acceptance of Responsibility. The United States would recommend a downward adjustment for acceptance of responsibility under USSG § 3E1.1(a)(b) of three (3) levels.

With these adjustments, the defendant’s adjusted offense level will be 39. If he has no criminal history, his advisory guideline range would be 262 to 327 months in prison. If the defendant has a criminal history, his guideline range may be higher. Again, this is only suggestive.

Other statutory factors: Other statutory factors that the court should consider under Title 18, United States Code, Section 3553(a) are: (1) the nature and circumstances of the offenses; (2) the history and characteristics of the defendant; (3) the need for the sentence to reflect the seriousness of the offenses; (4) the need for the sentence to afford adequate deterrence to criminal conduct; (5) the need for the sentence to protect the public from further crimes of the defendant; (6) the need to provide the defendant with educational and vocational training, medical care, or other correctional treatment in the most effective manner; (7) the kinds of sentences available; (8) the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct, and (9) the need to provide restitution to any victims of the offense.”

By decision of 20 October 2009, the Minister approved the extradition. In his decision the Minister considered that the applicant had not demonstrated that a mandatory life sentence would be imposed upon him.

On 23 November 2009, the applicant took interlocutory civil proceedings (kort geding) against the Netherlands Government seeking an injunction on his expulsion to the USA.

On 5 January 2010, in the context of the hearing in the interlocutory proceedings, which had been scheduled for 11 January 2010, the Department put fresh questions to the USA Department of Justice, namely:

“Rushing has three prior convictions to his name, (...). Supposedly all three convictions are for felony drugs offenses.

Questions likely to be raised in the forthcoming summary proceedings:

Will the prior convictions mentioned above (if correct) lead to the mandatory term of life imprisonment without release?

Is such a mandatory term of life imprisonment ‘de jure and de facto reducible’, does it leave ‘any prospects of release’ or does it not? The European Human Rights Court in Strasbourg (in its Kafkaris ruling, 12 February 2008, no. 21906/04) has ruled that there may be issues under Article 3 of the Human Rights Treaty in the case of an irreducible sentence of life imprisonment. Dutch courts have to take such rulings into consideration.

Is a mandatory minimum sentence of 20 years de jure and de facto reducible or not? Since Rushing is born on 22 March 1945 and now 64 years old, such a minimum sentence could be considered a life sentence as well.”

The USA Department of Justice, on 6 January 2010, answered as follows:

“1. The defendant is not facing a “mandatory” term of life imprisonment; rather, that is the maximum term that the Court may order. In order for the mandatory life term to be invoked, the U.S. Attorney must file an enhancement information under Title 21, United States Code [USC], Section 851, which provides as follows: ‘No person who stands convicted of an offense under this part shall be sentenced to increased punishment by reason of one or more prior convictions, unless before trial, or before entry of a plea of guilty, the United States attorney files an information with the court (and serves a copy of such information on the person or counsel for the person) stating in writing the previous conviction to be relied upon.’ Historically, the United States Attorney in this district does not file enhancement information under 21.USC.851 unless the United States Attorney specifically finds, after a review of the defendant’s conduct and criminal history, that the mandatory sentence is merited. The information is often not filed if the matter results in a plea agreement in which the defendant accepts responsibility for his actions.

Once the sentence is imposed, it is reducible under limited circumstances, including: a) under Rule 35 of the Federal Rules of Criminal Procedure, if within one year of sentencing, the government moves the Court to reduce the defendant’s sentence based on the defendant’s substantial assistance to the government after sentencing; and b) if the President grants the defendant a pardon under Article II, Section 2, of the United States Constitution.

The defendant faces a mandatory term of ten (10) years, not twenty (20) years, under Title 21, United States Code, Section 841(b)(1)(B). The Court only has authority to sentence the defendant below the ten year term under the following limited circumstances: a) if the defendant qualifies for safety valve under Title 18 U.S.C. 3553 (f) and United States Sentencing Guidelines [USSG] 5C1.2 (which seems unlikely in this case given the defendant’s leadership role and criminal history); and b) if the defendant provides substantial assistance to the government through cooperation prior to sentencing and the government moves for a sentence reduction under USSG 5K1.1 and 18 U.S.C. 3553.”

The Department, upon receipt of the above reply, immediately requested clarification regarding the possibility of a Presidential parole.

On 7 January 2010, the USA Justice Department replied as follows:

“[...] the power of a President in federal criminal cases, and the Governor in state convictions, to pardon a person convicted of a crime, commute the sentence (shorten it, often to time already served), or reduce it from death to another lesser sentence. There are many reasons for exercising this power, including real doubts about the guilt of the party, apparent excessive sentence, humanitarian concerns such as illness of an aged inmate, to clear the record of someone who has demonstrated rehabilitation or public service, or because the party is a political or personal friend of the Governor.”

On 19 January 2010, the judge in interlocutory proceedings (kortgedingrechter) dismissed the applicant’s request to stay his extradition The judge held that the applicant had not established that a mandatory life sentence would be imposed on him or that a Presidential parole was not possible. Therefore, the extradition did not constitute a violation of Article 3 of the Convention.

On 20 January 2010, the Acting President of the Chamber to which the case had been allocated decided, in the interests of the parties and the proper conduct of the proceedings before the Court, to indicate to the Government of the Netherlands, under Rule 39 of the Rules of Court, that the applicant should not be extradited to the USA until 3 February 2010. The Acting President also decided to request the Netherlands Government to inform the Court on the scope and the legally binding nature of the information supplied by the USA authorities. They were specifically asked if they could provide clarification concerning the applicant’s sentence. The Acting President further decided to give priority to the application under Rule 41 of the Rules of Court.

On 29 January 2010 the Netherlands Government submitted the requested information. In reaction to the Court’s questions, they had contacted the USA authorities once more. In its relevant part, the information they had received reads as follows:

“Under Title 18, United States Code, Section 3553(a), the sentencing court must consider ‘the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct.’ The highest sentence served to date in this case was about 12 years in prison and the lowest sentence was one day in jail. In the case of the 12-year sentence, that sentence had originally been 30 years, which was a mandatory sentence under the Federal Sentencing Guidelines. By virtue of a ruling by our Supreme Court, however, the Sentencing Guidelines are now only advisory, which should ensure to Mr Rushing’s benefit. Most recently, in March 2009, the court sentenced co-defendant Frank Falco to ten years in prison. Mr Falco’s case had notable similarities to Mr Rushing’s: both men were leaders and organizers in the same conspiracy and both men transferred large sums of money. In addition, both men were fugitives for many years. Of course, the cases were also different in some respects. Nonetheless, as noted above, under 18 U.S.C. 3553(a), the sentencing judge must consider sentencing disparity when sentencing Mr Rushing. Since the highest sentence to date was 12 years in prison and the lowest was one day in jail, a sentence of life in prison would be a significant leap for the court to make.

Title 21, United States Code, Section 841(b)(1)(A) provides for a sentence of ‘not less than 10 years or more than life’. The decision on the term of imprisonment is not within the government’s discretion but rather with the court’s discretion. Congress set the mandatory minimum and maximum sentences for this offense and we are bound to follow the statute. In some circumstances, the parties may conclude a plea agreement under Federal Criminal Rule 11 (C)(1)(c) in which the parties agree that ‘a particular sentence or sentencing range is the appropriate disposition...[and] such a recommendation or request binds the court, once the court accepts the plea agreement.’ In this instance, however, the court cannot accept a plea agreement until the defendant is in the district, so this is not an option. Furthermore, there is nothing in the record to suggest that an 11(C)(1)(c) binding plea would be appropriate in this case.”

On 2 February 2010, the Chamber considered the information provided by the Government on 29 January 2010 and decided, in view of that information, to lift the Rule 39 indication issued on 20 January 2010.

On 16 February 2010, the applicant informed the Court that he whished to pursue his application. On 5 March 2010, he was extradited to the USA.

No further information about his situation in the USA has been submitted.


The applicants, Mr Zygmunt Florczyk, Ms Grażyna Florczyk, Mr Wojciech Florczyk and Ms Maria Florczyk, are Polish nationals who were born in 1951, 1949, 1950 and 1974 respectively and live in Łódź and Cracow, Poland.

On 18 January 2002 the applicants requested the Cracow Municipal Office to pay compensation for part of their predecessor's plots of land which had been expropriated as a part of the land development plans, namely for the construction of a road.

On 9 August 2002 the Cracow Municipal Office requested the Małopolski Governor to issue a formal confirmation that the expropriation had taken place.

On 25 September 2002 the applicants submitted a copy of the Cracow District Court's decision declaring them successors as to 1/6 of the property of their predecessor in title.

On 12 May 2003 the Małopolski Governor informed the applicants that there had been a delay in the proceedings and that they would not end until 30 August 2003. The Governor also summoned them to submit certain documents.

On 12 May 2003 the applicants lodged a complaint with the President of the Office for Housing and Town Development about inactivity on the part of the Małopolski Governor. On 30 June 2003 the President of the Office for Housing and Town Development dismissed their complaint finding that the delay in the proceedings was caused by difficulties in finding other successors.

On 3 October 2003 the Cracow Municipal Office informed the applicants that the proceedings would lie dormant until the delivery of a decision by the Małopolski Governor.

On 17 November 2003 the applicants requested the Cracow Municipal Office to take action with a view of establishing the whereabouts of other parties to the proceedings.

On 27 November 2003 the Cracow Municipal Office informed the applicants that they had established a address of a certain W.P.

On 23 January 2004 the Governor informed the applicants about further delays in the proceedings and that they would not end until 23 March 2004.

On 23 March 2004 the Governor again informed the applicants about further delays in the proceedings.

On 21 May 2004 the Cracow Municipal Office informed the Governor of the addresses of two successors in title, W.P. and E.S-S.

In October 2004 the Governor requested the Cracow District Court to appoint a guardian for persons whose whereabouts remained unknown.

On 13 January 2005 the Cracow District Court stayed the proceedings since the Governor's representative had failed to comply with the court's order to submit certain information concerning the case. The proceedings were resumed on a later unknown date.

On 21 March 2005 the applicants lodged a complaint with the Cracow Regional Administrative Court about inactivity on the part of the Małopolski Governor. On 29 March 2006 the Cracow Regional Administrative Court allowed the applicants' complaint, held that the proceedings had not been conducted with necessary diligence and obliged the Governor to issue a decision on the merits.

On 11 July 2006 the Małopolski Governor informed the applicants about further delays in the proceedings.

On 25 October 2006 the Małopolski Governor appointed an expert to prepare an estimate of the value of plots.

On 12 December 2006 the Małopolski Governor gave a decision confirming that on 1 January 1999 the Cracow Municipality had acquired ownership of the property concerned which had been expropriated for the purposes of implementing the land development plans.

On 2 and 3 July 2007 the Cracow Mayor gave two decisions granting compensation to the applicants.