CASE OF MIRONOVAS AND OTHERS v. LITHUANIA

Inadmissible (Article 34 - Victim);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

András Sajó;Egidijus Kūris;Krzysztof Wojtyczek;Nona Tsotsoria;Paulo Pinto De Albuquerque;Vincent A. De Gaetano

Mr Petrulevič was born in 1986. When he lodged the application with the Court in 2012, he was serving a prison sentence at the Pravieniškės Correctional Home.

From 8 April 2005 to 26 October 2006 the applicant was detained at the Lukiškės Remand Prison. It transpires from the documents before the Court that he was held in different remand prison cells where he had between 1.55 and 3.95 square metres of living space.

After his conviction and transfer to the Pravieniškės Correctional Home to serve his sentence, on 27 October 2009 the applicant instituted civil proceedings for damages. He argued that the conditions in which he had been held at the Lukiškės Remand Prison had been degrading: the cells were overcrowded, full of rats and worms, appropriate toilet facilities were lacking, the cells were hot in summer and cold in winter, the cell walls were damp, and the roof of the remand prison was covered with asbestos, which put the applicant’s health in danger.

The Lukiškės Remand Prison administration responded that they attempted to maintain the statutory norm of 5 square metres per remand prisoner held in a cell (see paragraph 54 below), but that had not always been possible. The administration acknowledged that the facility was “constantly overcrowded (nuolat perpildytas)”, because the institution could not refuse to admit persons brought there. The buildings of the remand prison were very old, they were repaired periodically and it was not possible to repair them entirely.

The case was first examined by the Vilnius Regional Administrative Court, which rejected the applicant’s claim, inter alia, for having missed the statutory time-limit. The Supreme Administrative Court then remitted the case for fresh examination.

On 9 June 2011 the Vilnius Regional Administrative Court noted that the applicant had missed, by one day, the statutory three-year time-limit to lodge a claim for damages. The court nevertheless restored the time-limit of its own motion, having observed that the applicant had lodged his claim belatedly partly because he had not obtained in time information necessary for his civil claim.

The Vilnius Regional Administrative Court established that the applicant had been held in overcrowded cells for just under a year and a half, given that for that duration he had been held in cells where he had less than 5 square metres of personal space. On the basis of Article 21 § 2 of the Constitution, Articles 6.250 and 6.271 of the Civil Code and the Strasbourg Court’s judgment in Savenkovas v. Lithuania (no. 871/02, 18 November 2008), the first-instance court held that because of the overcrowding the applicant’s dignity had suffered. Nonetheless, the court dismissed the applicant’s remaining complaints about the detention conditions in the Lukiškės Remand Prison as not actually proven. It also noted that he had not complained to any authority of the unsanitary conditions in Lukiškės while he had been held there. The court also took into account that after having been transferred to the Pravieniškės Correctional Home, the applicant had undergone a medical examination. The doctors had established that he was healthy, which provided evidence that the conditions of his detention in Lukiškės had had no impact on his health.

Having taken into account the economic conditions in Lithuania, namely, a minimal monthly salary of 800 Lithuanian litai (LTL, approximately 230 euros (EUR)) and an average monthly salary of LTL 2,151 (EUR 620), as well as the Lithuanian administrative courts’ practice in similar cases, the court awarded the applicant LTL 3,000 (EUR 870) in compensation for non-pecuniary damage on account of overcrowding.

On 6 February 2012, on appeal, the Supreme Administrative Court underlined that notwithstanding the general rule that a person claiming damage bore the burden of proving it, the lower court had actively used available means for obtaining evidence: on several occasions it had requested the prison in question to provide additional information as to the applicant’s detention conditions and his state of health. That information had been provided to the court.

The Supreme Administrative Court also established that for 564 days the applicant had been kept at the Lukiškės Remand Prison in inadequate conditions on account of overcrowding, understood by the domestic law requirement to guarantee prisoners 5 square metres of personal space in a remand prison cell. It can be deduced from the Supreme Administrative Court’s analysis of the details of the applicant’s placement in Lukiškės that for 361 days he was held in cells where he had less than 3 square metres of personal space. The Supreme Administrative Court also noted that for most of his detention, namely for 309 days, the applicant had been held in cells where his personal space had been even less than 2.5 square metres. The court noted that, despite the overcrowding, for 366 days out of 564 the applicant had been held in two cells where heating, ventilation, sanitary and electric systems had been renovated in 2004, thus providing him with somewhat better material conditions (geresnėmis buitinėmis sąlygomis, nors ir neužtikrinant minimalios gyvenamojo ploto normos). Nevertheless, he had been held in overcrowded cells for twenty-three hours a day, and the Lukiškės Remand Prison had provided no evidence that the lack of living space had been remedied in any other way. For the court, such conditions went beyond the inevitable element of discomfort connected with detention (it referred to Kudła v. Poland [GC], no. 30210/96, § 92, ECHR 2000XI), degraded the applicant and were in breach of Article 3 of the Convention.

The Supreme Administrative Court also noted that the Strasbourg Court would sometimes hold that finding a violation constituted sufficient just satisfaction. In the instant case, however, the Supreme Administrative Court considered that the degree of the applicant’s suffering called for pecuniary compensation. Moreover, the sum of LTL 3,000 was not sufficient. Yet, the Supreme Administrative Court took into account that the applicant had not lodged a claim for damages until three years after his detention in such conditions had ended, by which time the court considered that the impact on a person’s emotional and physical suffering had decreased (laiko veiksnys asmens patirtas dvasines ir fizines kančias menkina, jos blėsta). The fact that the applicant had not instituted court proceedings for damages until three years after his release from the Lukiškės Remand Prison led the court to the conclusion that his mental suffering (dvasinė skriauda) was not so significant. Furthermore, when detained, the applicant was nineteen to twenty years old. During the hearing before the first-instance court he had acknowledged that he was in a good state of health. Accordingly, the conditions of his detention in Lukiškės had had no negative effect on his health. On the evidence, no other complaints, except for those concerning overcrowding, were found to be substantiated in his case. Lastly, the court held that the applicant had been partly favoured by the first-instance court’s initiative to restore the time-limit for lodging a claim for damages. It was therefore reasonable and just to award LTL 8,000 (approximately EUR 2,300) to compensate him for any non-pecuniary damage.

Mr Mironovas was born in 1978. When he lodged his application with the Court in 2012, he was serving a prison sentence at the Pravieniškės Correctional Home.

From 2009 to 2011 the applicant was held at the Prison Department Hospital (Laisvės atėmimo vietų ligoninė) in Vilnius in the following conditions:

- twenty-eight days in a room measuring 14.9 square metres, containing four beds (that is, 3.75 square metres per bed), and in a room measuring 12.11 square metres, containing three beds (that is, 4.03 square metres per bed);

- fourteen days in a room measuring 14.9 square metres, containing four beds (that is, 3.73 square metres per bed);

- one month and three days in a room measuring 21.25 square metres, containing five beds (that is, 4.25 square metres per bed);

- six days in a room measuring 19.80 square metres, containing seven beds (that is, 2.83 square metres per bed);

- five days in a room measuring 12.14 square metres, containing three beds (that is, 4.04 square metres per bed);

- five days in a room measuring 22.84 square metres, containing six beds (that is, 3.81 square metres per bed).

The applicant later instituted court proceedings for damages, claiming that he had been held in inhuman and degrading conditions at the Prison Department Hospital, because the rooms had been overcrowded, the hospital did not have a hygiene certificate, and the rooms had been dilapidated.

On 14 November 2011 the Vilnius Regional Administrative Court partly accepted the complaint. It established that as of 2007, the health-care authorities had six times established breaches of hygiene requirements at the Prison Department Hospital. In particular, the hospital showers, toilets and other premises were not properly cleaned and disinfected, patients who were suffering from an open form of tuberculosis and psychiatric patients took showers together with other patients (without being isolated, against the domestic law requirements), and many parts of the hospital needed renovation. The court also established that the Prison Department Hospital was operating without a hygiene certificate, which was against the domestic law.

As to overcrowding, the hospital provided information about the applicant’s stay therein, but could not specify how many persons had been held with him in the room. The first-instance court considered the lack of appropriate documentation as a flaw on the part of the hospital. The court then itself counted how many square metres the applicant could have had during each period of his stay at that hospital, dividing the size of each room by the number of beds therein. The court thus established that the applicant had been held in overcrowded rooms, and that the domestic norm had been “seriously breached” (nustatyta minimali norma pažeista ženkliai), given that the norm was that hospitals had to provide no less than seven square metres per bed (see paragraph 54 below).

The Vilnius Regional Administrative Court concluded that the applicant’s right to be treated in appropriate conditions had been breached. It underlined that the flaws could not be justified by a lack of financing for the hospital. The court considered that compensation of LTL 2,000 (EUR 580) would be sufficient for the applicant, taking into account the principles of reasonableness and justice, and the economic situation in Lithuania.

On 3 May 2012 the Supreme Administrative Court upheld the above decision. The higher court recognised that the applicant had been held in overcrowded rooms and in improper sanitary conditions. However, patients at the Prison Department Hospital had the opportunity of being in the open air from 6 a.m. to 10 p.m., which eased their situation as regards the overcrowding and also justified a lower award for non-pecuniary damage. Moreover, the conditions of the applicant’s stay in the hospital, whilst unsatisfactory from a hygiene point of view, had not put his health or life at risk. Those conditions had had no lasting effect on the applicant.

Mr Ivanenkov was born in 1980. When he lodged his application with the Court, he was serving a sentence at the Alytus Correctional Home.

It transpires from the court decisions that from 2008 to 2010 the applicant spent time in dormitory no. 2 at the Alytus Correctional Home in the following conditions:

- nearly nineteen months in a dormitory-type room measuring 30.28 square metres, which contained sixteen beds (that is, 1.9 square metres of living space per inmate); and

- over four months in a dormitory-type room measuring 24.80 square metres, containing fifteen beds (that is, 1.65 square metres of living space per inmate).

The applicant sued the Alytus Correctional Home for damages, claiming that the conditions of his detention had been degrading on account of overcrowding and the lack of suitable sanitary facilities. He relied, inter alia, on Council of Europe recommendation No. R(87) and on Article 3 of the Convention. To support his claim, he submitted a report of 2010 drawn up by the Alytus Public Health Centre (Alytaus visuomenės sveikatos centras).

On 19 December 2011 the Vilnius Regional Administrative Court took note of the Alytus Public Health Centre report of 2010 no. R1-362(2.6), issued in reply to a complaint by the inmates, to the effect that the Alytus correctional facility had a shortage of furniture, dilapidated cells, insufficient lighting, a shortage of cleaning equipment and a shortage of toilets, and that renovation was necessary. The court also took note of another document – a report by the State Health Care Centre (Valstybinės visuomenės sveikatos centro tarnyba prie Sveikatos apsaugos ministerijos) – to the effect that complaints made by another inmate in the Alytus facility were warranted and that there had been “gross violations of hygiene norms (šiurkštūs higienos normų pažeidimai)”.

The Vilnius Regional Administrative Court observed that the parties in essence did not dispute that the applicant had been held in premises where he had had between 1.7 and 1.9 square metres of personal space, and that there had been a shortage of toilet facilities and furniture. Such breaches of the domestic norms on hygiene were far from being short term (ne trumpalaikiai). Even so, the applicant’s claim that his physical health had been damaged was dismissed as not proven. Given that he had had to stay within the dormitory only during the night and had been able to move about during the day in the prison yard, take exercise outside on basketball, football and volleyball pitches, and that the premises had ventilation and the toilets were in a separate room, the court decided that it was reasonable and just to award the applicant LTL 2,300 (EUR 660).

On 26 April 2012 the Supreme Administrative Court agreed with the assessment of the applicant’s conditions in the Alytus Correctional Home. It noted that the applicant had never complained about the conditions to the Alytus facility administration. Furthermore, there was no proof that the Alytus administration had deliberately sought to degrade the applicant or to treat him inhumanely. Lastly, the Supreme Administrative Court observed that the Strasbourg Court quite often (neretai) held that the finding of a violation was sufficient just satisfaction. It considered that that would be an appropriate solution in the applicant’s case, even though his right to be held in conditions as set out by the domestic law had been breached. Accordingly, no pecuniary award was made.

The applicant was born in 1983. When he lodged his application with the Court, he was serving a sentence at the 2nd Correctional Home-Open Colony of the Pravieniškės Correctional Home.

It transpires from the documents before the Court that from 2008 to 2012 the applicant spent time in the 2nd Correctional Home-Open Colony in the following conditions:

- one month in a dormitory-type room, where he had 1.96 square metres of personal space;

- over four months in a dormitory-type room, where he had 2.03 square metres of personal space;

- the remaining time, which appears to be a little bit less than four years, in a dormitory-type room, where he had between 2.27 and 2.57 square metres of personal space.

In 2012 the applicant instituted court proceedings for damages, claiming that during his entire stay in Pravieniškės the facility was overcrowded. Moreover, the number of inmates held was constantly rising, even though no new premises were built. The Pravieniškės administration stated that there were plans to modernise that facility by 2017.

By a decision of 9 July 2012 the Kaunas Regional Administrative Court partly accepted the applicant’s complaint, having noted that under the domestic law personal space in dormitory-type rooms had to be no less than 3 or 3.1 square metres (see paragraphs 54 and 55 below). The court awarded the applicant LTL 1,000 (EUR 290) in respect of non-pecuniary damage.

On 4 February 2013 the Supreme Administrative Court maintained the award of LTL 1,000 (EUR 290) for non-pecuniary damage, caused by the State’s failure to observe domestic law norms. That being so, the court underlined that overcrowding in the applicant’s case was compensated for by free movement during the day. Moreover, the dormitory’s rooms in Pravieniškės had natural light and ventilation, and the sanitary facilities (asmens higienos patalpos) were separated from the sleeping premises. There was no evidence that overcrowding had had an impact on the applicant’s health. The Lithuanian court relied on the Court’s findings in Valašinas v. Lithuania (no. 44558/98, ECHR 2001VIII), whereby it held that merely a lack of living space provided for the inmate did not necessarily amount to a violation of Article 3 of the Convention. Last but not least, the applicant’s personal living space was close to the required domestic norm. It was also noteworthy that the applicant had complained only about lack of space. Having taken into account the cumulative effect of the conditions the applicant was held in, the Supreme Administrative Court thus rejected his assertion that the conditions of his stay in Pravieniškės had been in breach of Article 3 of the Convention.

Mr Gaska was born in 1958. When introducing the application with the Court in 2013, he was serving his sentence at the Alytus Correctional Home.

It transpires that after conviction, in May 2010 the applicant was placed in the Vilnius Correctional Home (Vilniaus pataisos namai), where he was held until February 2012.

Specifically, from 20 May 2010 to 16 September 2011 the applicant had to stay in dormitory-type room no. 4-414 measuring 14.41 square metres with five other inmates (that is, 2.4 square metres of living space per inmate).

In April and June 2012, when he was already in the Alytus Correction Home, the applicant complained to the administration of the Vilnius Correctional Home that he had not had adequate living space in the latter facility and that the lighting in his room had been poor. When the Vilnius Correctional Home denied responsibility, the applicant appealed to the Prison Department, the body that oversees the Lithuanian prisons. The latter replied that, because of the lack of available space, the Vilnius Correctional Home’s administration could not always guarantee the minimum personal space of 3.1 square metres to each inmate required under domestic legislation. However, any lack of personal space during the night was compensated for by the inmates’ ability to move about within the confines of the Vilnius Correctional Home during the day.

The applicant then instituted court proceedings for damages. The Vilnius Correctional Home asked the court to dismiss the claim, admitting that “because of overcrowding in prisons throughout Lithuania at this time, the Vilnius Correctional Home administration was not always able to provide the inmates with the minimum living space, as provided for by the domestic law (šiuo metu dėl įkalinimo įstaigų visoje Lietuvoje perpildymo Vilniaus pataisos namų administracija ne visada gali visiems nuteistiesiems suteikti įstatymais nustatytą minimalų gyvenamąjį plotą)”.

On 25 April 2013 the Supreme Administrative Court noted that there were no particular data with regard to the exact number of inmates held together with the applicant. That being so, having regard to the material provided, namely photographs of six beds in room no. 4-414, the court interpreted all the uncertainties in the applicant’s favour, acknowledging a violation of his rights under the domestic legislation, on account of overcrowding. It established, however, that the applicant had not complained about the conditions of his detention during his stay in the facility at issue. The court held that the applicant’s argument that he had not complained because he had feared retribution from the prison administration had no objective grounds (niekuo nepagrįstas). Furthermore, there was no proof that the overcrowding had had an effect on the applicant’s health. Moreover, any lack of space during the night was compensated for by the applicant being able to move about within the facility during the day. The court acknowledged that, according to the domestic case-law and the case-law of the Court, in the event of inadequate detention conditions a person was considered to have sustained non-pecuniary damage. However, pecuniary compensation was not indispensable in order to protect infringed rights.

In parallel court proceedings, the applicant also complained of insufficient lighting in his dormitory. By a final decision of 11 June 2013, the Supreme Administrative Court held that the lighting was very near the requirements as set by the applicable domestic legislation (74 lx, 83 lx and 112 lx, whereas100 lx was required under the legislation).

Mr Traknys was born in 1966. When he lodged his application with the Court in 2013, he was serving a prison sentence at the Pravieniškės Correctional Home.

From 8 December 2009 to 5 October 2011 and from 4 to 20 July 2012 Mr Traknys was held in the Lukiškės Remand Prison.

It can be deduced from the Lithuanian court decisions that during the first period of his detention in Lukiškės he spent 608 days in cells where he had between 1.23 and 2.74 square metres of living space.

During his second stay in Lukiškės, the applicant spent sixteen days in cells where he had between 2.8 and 3.4 square metres of personal space.

The applicant later instituted court proceedings for damages, complaining of overcrowding and deplorable conditions on account of the poor sanitary situation. He alleged that the cells were infested with mice and cockroaches, had insufficient lighting and were damp. He relied on a Vilnius Public Health Centre report to the effect that one of the cells had mould on the ceiling.

By a decision of 23 May 2013, the Supreme Administrative Court acknowledged that there had been overcrowding during the first period of the applicant’s detention in Lukiškės, on account of the prison authorities’ failure to keep up with the domestic law requirement to provide 5 or, later, 3.6 square metres of personal space in the remand prison cells. The court had no doubts that staying in cells that did not meet hygiene standards had caused the applicant mental suffering. Furthermore, even though the applicant had objected to being placed with inmates who smoked, in breach of the domestic legislation, he had been held with smokers for ninety-nine days (the domestic court referred to Elefteriadis v. Romania, no. 38427/05, 25 January 2011), and with previously convicted inmates for 201 days, even though it was his first time in prison. On account of those multiple breaches of the applicant’s rights, without explicitly acknowledging a violation of Article 3 of the Convention and taking into consideration the economic situation in Lithuania, the court considered it just to award compensation of LTL 2,500 (EUR 725).

As to the second period of the applicant’s detention, by a decision of 16 July 2013 the Supreme Administrative Court also acknowledged overcrowding. Taking into account the short duration of the violation and the economic situation in Lithuania, an award of LTL 350 (EUR 100) was made.

Mr Zeleniakas was born in 1973. When he lodged his application with the Court in 2013, he was serving a prison sentence at the Alytus Correctional Home.

In 2009 and 2010, Mr Zeleniakas was held at the Šiauliai Remand Prison, where he spent 328 days. During that time, he was held in a cell measuring 22.85 square metres, housing four to eight detainees (that is, between 2.86 and 5.71 square metres of personal space); in a cell measuring 20.13 square metres, housing four to nine detainees (that is, between 2.25 and 5.06 square metres of personal space); and in a cell measuring 16.26 square metres, housing five to eight detainees (that is, between 2.03 and 3.25 square metres of personal space).

The applicant instituted court proceedings. His written complaint was sent from the Alytus Correctional Home, claiming that the conditions at the Šiauliai facility had been deplorable: the remand prison was overcrowded, the cells were “unsanitary”, and he had been held together with smoking inmates, even though he was a non-smoker. During the hearings before the Šiauliai Regional Administrative Court the applicant also complained that the cells lacked proper ventilation and that the toilets were not separated from the cells.

On 12 November 2012 the Šiauliai Regional Administrative Court acknowledged a breach of the applicant’s rights under the domestic law, as regards overcrowding. The court noted his statement during the hearing that he had complained to the Šiauliai Remand Prison about being kept with smokers. Although the applicant had not complained of a violation of Article 3 of the Convention, the first-instance court nevertheless deemed it proper to examine his complaint in the light of the Court’s case-law criteria. Having done that, the court considered that the applicant’s rights had been violated on account of overcrowding, as it was understood under the domestic law, and that while it was close to a breach of Article 3 of the Convention, it did not pass that threshold. Lastly, the applicant had instituted court proceedings a year and a half after the date on which he had left the Šiauliai Remand Prison, by which time his psychological and physical suffering had diminished. Accordingly, there was no need to award him any pecuniary compensation. The court did not address the applicant’s complaint of unsanitary conditions.

On 10 May 2013 the Supreme Administrative Court partly granted the applicant’s appeal. It considered, however, that in his appeal the applicant had touched upon not only those issues which he had raised in his complaint to the first-instance court, but had also complained about other aspects of his detention. In particular, according to the Supreme Administrative Court, in his appeal the applicant had argued that the cells had lacked an artificial ventilation system, that the natural ventilation system had been insufficient, and that the toilet in the cell was of the type that should only be installed outside (kameroje esantis tualetas ir pati kamera buvo vienoje patalpoje, o sanitariniam mazgui įrengti panaudotas lauko tualeto principas). The appellate court considered that the applicant should have raised those issues in his complaint (skunde) to the first-instance court. Accordingly, it dismissed the applicant’s allegations of lack of ventilation and proper toilet facilities.

As to overcrowding, the Supreme Administrative Court noted that the number of inmates at the Šiauliai Remand Prison often changed during the day. On the basis of the documents provided by the Šiauliai Remand Prison, the Supreme Administrative Court established that for seventeen days the applicant had been held in “overcrowded” cells and for twenty-one days he had been held in cells where the minimum personal space was “very close to, but did not meet the [domestic] norms”. The Šiauliai facility had thus breached the applicant’s statutory right to be held in a cell where he would have 5 or 3.6 square metres of space. Having reviewed the Court’s case-law on conditions of detention, the Supreme Administrative Court considered that the inconveniences suffered by the applicant during those thirty-eight days went beyond those inherent in detention and were intense enough to amount to a violation of Article 3. The court nevertheless noted that there was no evidence in the case that the remand facility had intentionally sought to debase the applicant. The applicant could go out for a stroll for one hour per day, thus spending some time outside his cell. Lastly, the Supreme Administrative Court observed that there was no evidence in the file that the applicant had ever asked the remand prison administration to be held in a non-smoking cell. Nor was there any evidence in the file that he had been held in unsanitary conditions. The appellate court considered that the applicant had lodged his complaint more than one and a half years after his release from the Šiauliai Remand Prison, and thus had had a possibility to gather evidence and to provide it to the court. Having taken into account the economic situation in the country, the Supreme Administrative Court awarded the applicant LTL 200 (EUR 60) for his suffering.


Preliminary objections dismissed (Article 35-1 - Exhaustion of domestic remedies);Remainder inadmissible;Violation of Article 3 - Prohibition of torture (Article 3 - Extradition) (the United States of America);Violation of Article 34 - Individual applications (Article 34 - Hinder the exercise of the right of petition);Non-pecuniary damage - award

Aleš Pejchal;André Potocki;Ann Power-Forde;Ganna Yudkivska;Helena Jäderblom;Mark Villiger;Paul Lemmens

The applicant was born in 1970 and is currently being held in Rappahannock Prison in Stafford, Virginia (United States).

On 14 September 2001 an arrest warrant was issued against the applicant by an investigating judge of the Brussels Regional Court. A search of his home had led to the discovery of false passports, automatic weapons and ammunition, as well as chemical formulae that could be used for making explosives and a detailed plan of the United States Embassy in Paris.

Following a simultaneous search of a Brussels café, where the applicant had been a regular customer, drawing on information provided by another suspect, who had also been arrested, the police discovered 59 litres of acetone and 96 kilograms of sulphur powder. Under the arrest warrant which was subsequently issued, the applicant was accused of acts of criminal conspiracy, destruction by explosion, possession of combat weapons and belonging to a private militia.

The applicant admitted the offences as charged and was sentenced to ten years’ imprisonment by the Brussels Regional Court on 30 September 2003 for attempting to blow up the Kleine-Brogel Belgian army base, forgery, and instigating a criminal conspiracy to attack persons and property. The court’s judgment included the following finding:

“[the defendant] attempted to commit one of the most serious crimes since Belgian independence; in spite of the lapse of time since his arrest, he has never shown any remorse, the danger which he poses has remained intact and his case presents no mitigating circumstances.”

In a judgment of 9 June 2004 the Brussels Court of Appeal upheld the applicant’s ten-year prison sentence for a range of offences, including:

“ - attempting to blow up the Kleine-Brogel Belgian army base, with the added circumstance that the perpetrator must have presumed that there were one or more persons present at the time of the explosion ...,

- holding a position of command in a conspiracy formed to perpetrate serious crimes liable to life imprisonment and, in the present case, to carry out a terrorist attack ...,

- receiving from a foreign organisation funds intended for conducting, in Belgium, an activity liable to jeopardise national security ...,

- being in unlawful possession of a combat weapon ...,

- setting up, and assisting or participating in, a private militia or other organisation of private individuals for the purpose of using force ...”

On 26 January 2005 the applicant was sentenced in absentia by a Tunisian military court to ten years’ imprisonment for belonging to a terrorist organisation abroad in peacetime. On 29 June 2009 the Permanent Military Court in Tunis issued a warrant for the applicant to be brought before it, for which an application for enforcement was submitted to the Belgian authorities by diplomatic note of 10 September 2009.

The principal prison sentence imposed on the applicant in Belgium was completed on 13 September 2011. Two subsequent subsidiary prison sentences of six and three months respectively were imposed in 2007 and enforced immediately. The applicant completed these sentences on 23 June 2012.

On 25 August 2005, meanwhile, the applicant had submitted an asylum application in Belgium, which the Commissioner General for Refugees and Stateless Persons dismissed in a decision of 10 April 2009. This decision refused the applicant refugee status and subsidiary protection on the grounds that he had committed offences contrary to the aims and principles of the United Nations within the meaning of Article 1 f) c of the Geneva Convention. That decision was upheld by the Aliens Appeals Board in a judgment of 18 May 2009.

B. Extradition proceedings

By a diplomatic note of 8 April 2008 the US authorities transmitted to the Belgian authorities a request for extradition of the applicant under the Extradition Agreement concluded between the Kingdom of Belgium and the United States of America on 27 April 1987. The reasons for the request were the indictment issued by the District Court of the District of Columbia (Washington D.C.) against the applicant on 16 November 2007, comprising the following charges:

“A. Conspiracy to kill United States nationals outside of the United States, in violation of the following provisions: 18 U.S.C. § 2332 (b) (2) and 1111 (a)

B. Conspiracy and attempt to use of weapons of mass destruction, in violation of the following provisions: 18 U.S.C. § 2332a and 2

C. Conspiracy to provide material support and resources to a foreign terrorist organisation, in violation of the following provisions: 18 U.S.C. § 2339B

D. Providing material support and resources to a foreign terrorist organisation, in violation of the following provisions: 18 U.S.C. § 2339B and 2.”

The extradition request continued as follows:

“A warrant for the arrest of Mr Nizar Trabelsi was issued on 16 November 2007 by order of ... judge ....

The underlying facts of the charges indicate that in mid-2000 or earlier, while in Germany, and elsewhere in Europe, and in Afghanistan, Nizar TRABELSI knowingly entered into an agreement with al Qaeda associates, including Osama bin Laden, to provide material support and resources, to unlawfully kill United States nationals in targeted facilities in Western Europe, and to use a large-scale explosive device (a weapon of mass destruction) to destroy property in Western Europe used by the United States and/or a department or agency of the United States.”

According to the documents in support of the extradition request, notably the applicable extracts from criminal law (Title 18 of the United States Code, U.S.C.) transmitted by the US authorities, these offences carried the following penalties:

“A. 18 U.S.C. § 2332 (b) (2) and 1111 (a): a maximum term of life imprisonment, or a combined fine and prison sentence.

B. 18 U.S.C. § 2332a and 2: a maximum term of life imprisonment.

C. 18 U.S.C. § 2339B: a fine or a maximum term of 15 years imprisonment, or a combination of both.

D. 18 U.S.C. § 2339B and 2: a fine or a maximum term of 15 years imprisonment, or a combination of both.”

On 4 June 2008 the Federal Attorney transmitted to the chambre du conseil of the Nivelles Regional Court a request for enforcement of the arrest warrant issued on 16 November 2007 against the applicant. In his request the Federal Attorney pointed out that the maximum sentences for the offences underlying the request for extradition were fifteen and ten years respectively.

By a diplomatic note of 12 November 2008 the US authorities made the following assurances concerning the applicant to the Belgian authorities:

“The Government of the United States assures the Government of Belgium that, pursuant to his extradition, Nizar Trabelsi will not be prosecuted before a military commission, as enabled by the Military Commissions Act of 2006. The Government of the United States further assures the Government of Belgium that upon extradition, Trabelsi will not be detained or incarcerated in any facility other than a civilian facility in the United States.”

By an order of 19 November 2008, the chambre du conseil of the Nivelles Regional Court acceded to the Federal Attorney’s request and declared the arrest warrant issued by the US District Court enforceable. However, the order added the following stipulation:

“It emerges from the examination of the documents enclosed with the arrest warrant issued for the purposes of extradition ... that the ‘overt acts’ listed by the US authorities in support of the first charge include several which correspond very precisely to the acts committed in Belgian territory which justify the [applicant’s] conviction in Belgium.

Therefore, by virtue of the ne bis in idem principle, the arrest warrant issued for the purposes of extradition on 16 November 2007 by the competent judicial authority of the United States of America cannot be declared enforceable in respect of ‘overt acts’ nos. 23, 24, 25, 26 set out in paragraph 10 of the first charge, which are deemed repeated in support of the other charges.”

Having examined an appeal lodged by the applicant, the Indictments Division of the Brussels Court of Appeal delivered a judgment on 19 February 2009 upholding the aforementioned order and declared the warrant enforceable. Having noted that the extradition concerned acts (committed outside Belgium) other than those for which the applicant had been prosecuted and convicted in Belgium, the Court of Appeal argued that:

“There are no serious grounds for believing that the request for extradition was submitted for the purposes of prosecuting or punishing Trabelsi Nizar for considerations of race, religion, nationality or political opinion or that this individual’s situation is liable to be worsened for any of these reasons.

Nor is there any serious reason to believe that if Trabelsi Nizar were to be extradited he would be subjected to a flagrant denial of justice, acts of torture or inhuman or degrading treatment; there is no reason to suppose that the United States of America will not meticulously comply with all the provisions, including Articles 7.2 and 7.3, of the Extradition Agreement concluded with Belgium, and every reason to believe that Trabelsi Nizar will be detained in a civilian facility and tried by the ordinary courts, in accordance with conventional procedure.

On 24 April 2009 the applicant lodged an appeal on points of law against the judgment of the Court of Appeal. He relied on the risk of treatment incompatible with Article 3 of the Convention and the risk of a flagrant denial of justice. He contended that the Court of Appeal had not assessed the consequences of his extradition to the United States in the light of the general situation in that country or his own specific circumstances, and argued that the Court of Appeal should have adopted the same line of reasoning as the Court in the case of Saadi v. Italy [GC] (no. 37201/06, ECHR 2008). He also complained that the Court of Appeal had not addressed the potential problem under Article 3 of sentencing a person to an irreducible life sentence. Lastly, he complained of a violation of the ne bis in idem principle.

By a judgment of 24 June 2009 the Court of Cassation dismissed the applicant’s appeal on points of law. It ruled that the Court of Appeal had provided adequate reasons and legal justification for its decision, considering

“ - that the requesting State is currently conducting a thorough review of its anti-terrorist policy, stepping up its action against torture and inhuman and degrading treatment, and is on the verge of suspending the special courts and abolishing the unlimited detention without trial of persons captured in the context of international conflict;

- that under the terms of the formal guarantees provided in support of the extradition request, the appellant will be tried by an ordinary civilian court in accordance with the normal procedure in force in the requesting State, enjoying all the rights and remedies available under the national judicial system;

- that the appellant is not liable to a life sentence for the offences for which his extradition has been requested and that the penalties which they carry can be commuted into other penalties with possibilities for release on parole;

- that because the evidence relied upon by the appellant lacks any specific aspect affecting his own personal situation, which would have made the risks he alleges more credible, it does not substantiate any serious concern that he could be exposed to a flagrant denial of justice or acts of torture or inhuman and degrading treatment.

In a letter of 11 November 2009 sent to the Belgian authorities at the behest of the Federal Attorney responsible for the extradition request, the US Department of Justice supplied the following additional information:

“The statutory maximum sentence for a conviction of each of the first two of these offenses is life imprisonment and the statutory maximum sentence for the latter two offenses is 15 years. In addition, the United States Sentencing Guidelines, which are the voluntary guidelines that judges may choose to follow in sentencing defendants, call for a life sentence for each of the first two of these offenses.

A life sentence is not mandatory and the court has the discretion to issue a sentence less than life. In issuing a sentence, the court may consider the gravity of the offense and whether any lives were lost or property was damaged. In this instance, Trabelsi did not succeed in carrying out his plans to kill United States nationals and to use weapons of mass destruction. Thus, the court in issuing a sentence, in its discretion, may consider that Trabelsi was not successful in carrying out his plans. The court also may consider any mitigating factors, such as whether the defendant acknowledges responsibility for his actions.

If the court, in its discretion, sentences Trabelsi to a punishment of less than life, i.e. a term of years, Trabelsi’s sentence could be reduced by up to 15% for good behaviour while incarcerated. This type of sentence reduction is only possible, however, if the original sentence is to a term of years, however long, rather than a life sentence. Therefore, if Trabelsi were sentenced to a term of 20, 30, or even 50 years, then he could be eligible for a sentence reduction of up to 15% of his original sentence based on his good behaviour while incarcerated. If, however, Trabelsi is sentenced to life, he would not be eligible for any reduction in his sentence.

Finally, Trabelsi can apply for a Presidential pardon or sentence commutation. (A pardon would eliminate the conviction; a commutation would be an adjustment to the sentence.) However, this is only a theoretical possibility in Trabelsi’s case. We are not aware of any terrorism defendant ever having successfully applied for a Presidential pardon or sentence commutation.”

Once the US indictment was declared operative, the proceedings relating to the response to the extradition request were commenced.

On 4 February 2010 the Federal Attorney forwarded his written opinion to the Brussels Court of Appeal inviting it, in the light of the Court’s case-law, particularly Kafkaris v. Cyprus [GC] (no. 21906/04, ECHR 2008), to issue a positive opinion on the applicant’s extradition. He pointed out that in the case of the first two charges, the applicant was liable to a life sentence, while in the case of the other two charges he was liable to a fifteen-year prison sentence.

In a letter of 29 March 2010 to the Federal Department of Justice the applicant took note of the fact that at the hearing on 24 March 2010 the Federal Attorney had acknowledged a mistake in his observations in the enforcement request proceedings concerning the sentence to which the applicant might be liable following his extradition to the United States (see paragraph 16 above).

On 10 June 2010 the Indictments Division of the Court of Appeal issued a favourable opinion on the applicant’s extradition, specifying a number of conditions:

“ - extradition may only be granted:

i. on condition that the death penalty is not imposed on N. Trabelsi or, if the United States cannot guarantee this condition, on condition that the death penalty is not enforced;

ii. on condition that any life sentence is accompanied by the possibility of commutation of sentence, even if the conviction is based on terrorist acts;

- in the event of a request for N. Trabelsi’s re-extradition to a third country, such as Tunisia, the United States must request the agreement of Belgium should Tunisia send the US Government any future request for extradition after N. Trabelsi has been handed over to them.

If the US fails to accept these conditions the extradition must be refused.”

By a diplomatic note of 10 August 2010 the US authorities confirmed that the applicant was not liable to the death penalty and assured the Belgian authorities that he would not be extradited to any third country without the agreement of the Belgian Government. The US authorities reiterated that the maximum life prison sentence was not mandatory and that even if all the constituent elements of the criminal offences in question were secured and proved, the court had the discretion to impose a lighter sentence. The note specified that US legislation provided for several means of reducing life sentences:

“Regarding the question of commutation of a life sentence, the United States wishes to make it clear, in the first instance, that if Trabelsi were convicted, a life sentence is not mandatory; the court has the discretion to impose a sentence less than life. Also, a defendant has a statutory right to appeal the conviction and sentence, including a life sentence, both directly, and collaterally through a habeas corpus petition. In addition, there are certain statutory bases for reduction of an already-imposed sentence, including where the defendant has provided substantial assistance in the investigation or prosecution of a third party (Federal Rule of Criminal Procedure 35(b) and Title 18 United States Code, Section 3582(c)(1)(B)), or for compelling humanitarian reasons such as the terminal illness of the prisoner (Title 18, United States Code, Section 3582(c)(lXA)(i)).

In addition to these measures, the defendant may request that his sentence be reduced as an exercise of executive clemency by the President of the United States. The President’s power under Article H, Section 2, of the U.S. Constitution, “to grant reprieves and pardons” includes the authority to commute (reduce) a sentence of imprisonment, including a life sentence. There are established regulations and procedures governing the application process for executive clemency, and the Office of the Pardon Attorney has been established in the Department of Justice to review all applications for executive clemency and prepare recommendations for the President on those applications. The U.S. Constitution gives the President absolute discretion to grant executive clemency to a defendant. We note that while such discretion has been exercised sparingly, such relief has, on occasion, been granted for serious offenses implicating national security. For example, in 1999, President Clinton commuted the sentences of 13 members of the FALN, a violent Puerto Rican nationalist organization responsible for numerous bombings in the 1970s and early 1980s, who had been convicted of conspiracy to commit armed robbery, bomb making, sedition and other offenses.”

On 23 November 2011 the Minister for Justice adopted a ministerial decree granting the applicant’s extradition to the US Government. Having noted that the applicant would in no case be liable to the death penalty, the decree examined each of the other guarantees provided.

On the matter of possible life imprisonment, the ministerial decree read as follows:

“Under US Federal criminal law the maximum penalty laid down in respect of the charges – the offences under A and B – precludes early release and release on parole. Life sentences as provided for in these two provisions of the US Criminal Code are therefore, from the legal and factual angles, in principle served for the whole of the person’s life.

In diplomatic note no. 21 of 10 August 2010 from the United States Embassy, the US authorities provided a guarantee that (even) if an irreducible life sentence were handed down it would be possible to obtain a pardon from the US President. This right is set out in Article 2, II of the US Constitution. Furthermore, Presidential pardons have in fact been granted on several occasions in the past, including the recent past, to persons sentenced by the US courts, particularly at the Federal level.

Even if we view it in its historical context, the FALN case shows that in cases likely to fall under the current legislation on terrorism in force since 11 September 2001, which cases must objectively be seen as much more serious than those of which the person sought is suspected and which are therefore liable to lead to severer penalties, Presidential pardons can indeed be granted.

Even though some individuals have since 2001 been given irreducible life sentences ... for terrorism or acts linked to terrorism, such cases cannot be compared to the Trabelsi case in terms of their content. All those who have been sentenced to life imprisonment in the US without early release or release on parole were charged, prosecuted and finally convicted for active involvement in terrorist attacks which had caused deaths and/or injuries and considerable material damage, for example the attacks on the US Embassies in Nairobi, Kenya, and Dar-es-Salaam (Tanzania) on 7 August 1998. ...

Those offences were manifestly incomparable in extent and nature with those attributed to the person whose extradition has been requested.

In the aforementioned cases persons, sometimes enormous numbers of people, in addition to US nationals, suffered substantial physical and material damage. The person sought in the present case, however, is being prosecuted for having planned and prepared a terrorist attack which was never carried out. He did not succeed, in cooperation with others, in causing human injuries or even material damage.

It is therefore manifestly plausible that the offences as charged are not such that the maximum applicable sentence laid down in the US Criminal Code, that is to say an irreducible life sentence, could be called for or imposed.

A recent survey by the Human Rights First NGO shows that of the 214 persons prosecuted since 11 September 2001 for terrorist offences linked to al-Qaeda or other Islamist groups or for offences connected with such terrorist offences, 195 have been convicted. Each case involved prosecutions or convictions instigated by Federal attorneys and courts. 151 of the convicted persons were sentenced to imprisonment, while twenty were released on licence or given prison terms corresponding to the period of custody already served. The average length of prison sentences handed down was 8.4 years. Only 11 of those convicted were sentenced to life imprisonment. The report also points out that the proceedings complied with the right to a fair trial (“Human Rights First, In pursuit of Justice: Prosecuting Terrorism Cases in the Federal Courts – 2009 Update and Recent Developments”, 2009, 68 pp.).

The statistics show that, objectively, the risk of being sentenced to life imprisonment without parole in cases of prosecution for terrorist offences is considerably lower than is commonly thought.”

In connection with the applicant’s possible re-extradition to Tunisia, the ministerial decree continued as follows:

“By diplomatic note no. 21 of 10 August 2010 from the US Embassy the US authorities clearly indicated that if the Tunisian authorities applied to the United States for extradition, it would be turned down.

Given the decision to refuse extradition to the Tunisian Republic, in view of the fact that re-extradition necessitates the agreement of the State which authorised the initial extradition, no re-extradition to the Tunisian Republic is possible.

Since the Belgian authority refused extradition to the Tunisian Republic, if Tunisia were to transmit to the US a request for extradition in the future the US would also refuse it, and no extradition by the United States to the Tunisian Republic is possible.”

Lastly, the ministerial decision analysed the application of the ne bis in idem principle as follows:

“Under the Agreement (the Extradition Agreement of 27 April 1987), Belgium and the United States of America ... have mutually undertaken to refuse extradition if the person sought has been acquitted in the requested State or has been convicted in the same State for the same offence as that for which extradition is being requested. Ratification ... incorporated this agreement into the Belgian and US legal systems.

In other words it is not the acts but the legal classification of the acts, namely the offences, which must be identical.

The facts forming the basis of the offences in question correspond to ‘overt acts’ which individually or together function as factual elements supporting the charges. The double jeopardy principle does not exclude the possibility of using or not using these elements.

In the present case the offences for which the person sought was finally convicted by the Brussels Court of Appeal on 9 June 2004 do not correspond to the offences listed in charges A to D in the arrest warrant forming the basis for the US extradition request. The constituent elements of the respective US and Belgian offences, their scope and the place(s) and time(s) of their commission do not match up.

Under US Federal criminal law an ‘overt act’ is a (factual) element, an act, a behaviour or a transaction which in itself may not necessarily be classified as an offence...

An ‘overt act’ is merely a piece of supporting evidence which in itself or in conjunction with other overt acts may help constitute the offence or offences for which the person is being prosecuted, that is to say conspiracy, for instance to kill US nationals (see charge A). ...

Although each of ‘overt acts’ nos. 24, 25 and 26 could be classified as an offence, these acts nonetheless do not constitute offences for which the extradition has been requested.”

Article 2 of the decree stated that “extradition will take place after the person sought has complied with the requirements of the Belgian courts”.

On the same day, under another ministerial decree, the Minister for Justice refused the Tunisian authorities’ request for the applicant’s extradition (see paragraph 10 above).

On 6 February 2012, relying on violations of Article 3 of the Convention and Article 4 of Protocol No. 7, the applicant lodged an application with the Conseil d’Etat for judicial review of the ministerial decree granting his extradition to the United States of America.

At the Conseil d’Etat hearing on 19 September 2013 the applicant relied on the Court’s judgment in Vinter and Others v. United Kingdom [GC] (nos. 66069/09, 130/10 and 3896/10, 9 July 2013). He deduced from this judgment that the Court had now adopted a position requiring preventive review of whether a life prison sentence was reducible or not before the prisoner began his sentence, and therefore that the distinction drawn in the Babar Ahmad and Others v. United Kingdom judgment, (nos. 24027/07, 11949/08, 36742/08, 66911/09 and 67354/09, 10 April 2012) depending on whether the person subject to extradition had been convicted or not was no longer relevant.

In a judgment of 23 September 2013 the Conseil d’Etat dismissed the application for judicial review. As to the complaint under Article 3 of the Convention and the risk of an irreducible life sentence, the Conseil d’Etat reasoned as follows:

“Even supposing that the applicant is sentenced by the US courts to life imprisonment, it should be noted that in its Vinter and Others v. United Kingdom judgment of 9 July 2013 [the Court] ruled that: ‘a life sentence does not become irreducible by the mere fact that in practice it may be served in full’, that ‘no issue arises under Article 3 if a life sentence is de jure and de facto reducible ...’ and that ‘where national law affords the possibility of review of a life sentence with a view to its commutation, remission, termination or the conditional release of the prisoner, this will be sufficient to satisfy Article 3’.

In the present case, as in that of Babar Ahmad and Others v. United Kingdom which led to [the Court’s judgment] of 10 April 2012, the applicant has not been sentenced by a US court to life imprisonment, and has still less begun serving such a sentence.

As in the aforementioned case, therefore, the applicant does not show that in the event of a life sentence, the question will arise whether there is any legitimate penological justification for continuing his imprisonment.

Moreover, in his most recent submissions the applicant acknowledges that a possible life sentence imposed on him would be reducible de jure. US law allows him either to request a review or apply for a Presidential pardon or commutation of sentence, and the applicant does not contend that this power of executive clemency or sentence commutation is accompanied by restrictions comparable to those in issue in the [Court’s] aforementioned judgment of 9 July 2013.

Although the applicant challenges the assertion that such a sentence is reducible de facto, the explanations provided to the opposing party by the US authorities do show that the US President has already used his power to commute sentences. Therefore, the legal remedy available to the applicant in the event of a life prison sentence is not excluded in practice.

Furthermore, the applicant’s contention that since the 11 September 2001 terrorist attack it has been inconceivable for the US President to grant a pardon to or commute the sentence of a person convicted of terrorism has not been substantiated by any reliable information, nor can it be in view of the relatively short period of time, as compared with a life sentence, which has elapsed since the said attack and any criminal sentences subsequently imposed.

As in Babar Ahmad ..., therefore, it has not been established that the US authorities would, when appropriate, refuse to implement the available sentence-reducing mechanisms where there was no legitimate penological justification for continuing the applicant’s imprisonment.

Any possible life sentence imposed on the applicant would therefore also be reducible de facto.

Consequently, it is unnecessary to determine whether the opposing party was wrong to consider that the applicant would not necessarily be sentenced to life imprisonment, because, even if he were sentenced to such a prison term, this penalty would not constitute a breach of Article 3 [of the Convention]”.

As to the complaint under Article 5 of the Extradition Agreement between the Kingdom of Belgium and the United States of America, Article 4 of Protocol No. 7 to the Convention and Article 14 § 7 of the International Covenant on Civil and Political Rights, the Conseil d’Etat held that:

“The US authorities request the applicant’s extradition on four charges, namely:

1) Conspiracy to kill United States nationals outside of the United States;

2) Conspiracy and attempt to use of weapons of mass destruction;

3) Conspiracy to provide material support and resources to a foreign terrorist organisation;

4) Providing material support and resources to a foreign terrorist organisation, in violation of the following provisions.

Again according to the US authorities, in order to commit these offences as charged the applicant and four accomplices carried out a series of ‘overt acts’, including those for which extradition is being granted to the US authorities presented as follows: [a list of 28 charges follows].

In Belgium the charges (‘in the Brussels judicial district and, on related charges, elsewhere in the Kingdom’) against the applicant are as follows: [a list of 13 charges follows].

Comparing all the ‘overt acts’ for which extradition has been granted to the US authorities with all the Belgian charges valid ‘in the Brussels judicial district and ... elsewhere in the Kingdom’, it will be noted that the former have no territorial link with the Kingdom of Belgium, constituting a set of acts which serve as the constituent elements of the four charges presented by the US authorities.

It emerges from the case file that the applicant is wanted by the US authorities for a number of offences in respect of which he has not been ‘found guilty, convicted or acquitted in the requested State’ and that the ‘overt acts’ constitute so many elements to be used by the US judicial authorities to establish whether the applicant is guilty or innocent of the four charges brought against him.”

On 6 December 2011, the date of notification of the ministerial decrees relating to the requests for extradition (see paragraphs 28 and 33), the applicant lodged a request with the Court for the indication of an interim measure pursuant to Rule 39 of the Rules of Court with a view to suspending his extradition.

On the same day the Court acceded to the applicant’s request and decided to indicate to the Government, in the interests of the parties and of the proper conduct of proceedings before it, that it should not extradite the applicant to the United States of America.

On 20 December 2011, arguing that the interim measure had been indicated prematurely because the applicant had not yet been placed in custody pending extradition and that such a measure would create a situation detrimental to the proper administration of justice, the Belgian Government requested that the measure be lifted.

On 11 January 2012, the Court, having re-examined the application in the light of the information supplied by the parties, decided, on the basis of the said information, to refuse to lift the interim measure.

On 21 May 2012 the Government submitted a second request for the lifting of the interim measure.

In reply, the Court pointed out, in a letter of 25 May 2012, that the request to lift the measure and the application would be re-examined once the judgment delivered on 10 April 2012 by the Court in Babar Ahmad and Others v. United Kingdom, cited above, had become final.

In a letter of 25 June 2012 the Court informed the parties that the examination of the request to lift the interim measure had been postponed indefinitely in view of the request for referral to the Grand Chamber of the cases Vinter and Others v. United Kingdom (no. 66069/09) and Harkins and Edwards v. United Kingdom (nos. 9146/07 and 32650/07).

On 3 August 2012 the Court informed the parties that it had been decided to refer the aforementioned Vinter case to the Grand Chamber and that the question of the request to lift the interim measure would be re-examined when a decision had been taken on the request for referral of the aforementioned case of Babar Ahmad and Others to the Grand Chamber.

The application was communicated to the respondent Government on 27 November 2012.

In their observations on the admissibility and merits of the application the Government requested, for the third time, the immediate lifting of the interim measure.

In a letter of 7 January 2013 the Court replied that the Government would be informed in due course of the decision taken by the Court on the interim measure.

On 15 January 2013 it was decided to maintain the interim measure for the duration of the proceedings before the Court.

In a letter of 18 June 2013 in reply to a fourth request from the Government to lift the interim measure, the Court stated that the interim measure had been maintained and would be applied until the end of the proceedings before it.

On 10 July 2013 the Court informed the parties that examination of the case had been adjourned in view of the imminent delivery of the judgment of the Conseil d’Etat and of the Grand Chamber judgment in Vinter and Others [GC] (nos. 66069/09, 130/10 and 3896/10, 9 July 2013).

In reply to a question from the Government on the deadline for dealing with the case, the Court informed them on 25 September 2013 that the examination of the case would begin at the end of October or the beginning of November.

On 18 October 2013 the Court informed the parties that the chamber constituted to examine the case was intending to relinquish the case to the Grand Chamber under Article 30 of the Convention.

By letter of 31 October 2013 the applicant expressed his agreement to such relinquishment. The Government, on the other hand, indicated, by letter of 8 November 2013, that they opposed relinquishment.

On 24 June 2012, having served the sentences imposed on him (see paragraph 11 above), the applicant was taken into custody pending extradition in pursuance of section 3 of the Extradition Act of 15 March 1874.

On 7 June 2012 the applicant lodged a first application for release with the Nivelles Regional Court. By an order of 12 June 2012 the chambre du conseil dismissed the application. The order was upheld by the Indictments Division of the Brussels Court of Appeal on 28 June 2012.

Subsequently, having meanwhile been transferred first to Bruges Prison and then to Hasselt Prison, the applicant lodged a second application for release on 13 August 2012 with the Hasselt Regional Court. On 24 August 2012 the chambre du conseil allowed his application. On appeal from the public prosecutor, by judgment of 6 September 2012, the Indictments Division of Antwerp Court of Appeal set aside this decision and dismissed the application.

On 3 December 2012 the applicant lodged a third application for release. By an order of 14 December 2012 the chambre du conseil of the Hasselt Regional Court declared the application unfounded. The applicant appealed to the Indictments Division of Antwerp Court of Appeal, which upheld the aforementioned decision by judgment of 10 January 2013.

In January 2013, having meanwhile been transferred to Mons Prison, the applicant lodged a fourth application for release, which was declared unfounded by the chambre du conseil of the Mons Regional Court on 4 February 2013, and then by the Indictments Division of the Mons Court of Appeal on 21 February 2013.

On 23 August 2013, having meanwhile been transferred to Ittre Prison, the applicant lodged a fifth application for release. This application was dismissed by the chambre du conseil of Nivelles Regional Court on 28 August 2013 and then by the Indictments Division of the Brussels Court of Appeal on 12 September 2013.

Meanwhile, on 5 September 2013, the applicant had left Ittre Prison for Bruges Prison, having obtained a date for his wedding to a Belgian national with whom he had had two children.

On 3 October 2013 the applicant was informed that he was being transferred from Bruges Prison to Ittre Prison. In fact he was being taken to Melsbroek military airport, where Federal Bureau of Investigation (FBI) agents were waiting for him. At 11.30 a.m. he was extradited to the United States.

The Minister for Justice issued a public statement announcing the applicant’s departure at 1.30 p.m.

At 3 p.m. the applicant’s lawyer made a highly urgent ex parte application to the President of Brussels Regional Court. The decision, which was given at 6.30 p.m., stated that the Belgian State was required to comply with the interim measure indicated by the Court, and ordered “prohibition or suspension of the applicant’s extradition, as far as this might be possible”, on pain of a fine of EUR 5,000 (five thousand euros). The Court has not been informed of any appeal against this order.

In the United States the applicant was immediately placed in custody. On 7 October 2013, assisted by an officially appointed lawyer, he was brought before the District Court of the District of Columbia to hear the charges against him.

The applicant is currently being held in the Rappahannock regional prison in Stafford (Virginia). On 1 November 2013 a letter from the prison administration to the Belgian authorities stated that the applicant was subject to the same conditions of detention as all other prisoners.

According to an email sent on 6 November 2013 by the applicant’s US lawyer to his representative before the Court, the applicant was allowed to have postal contact with the outside world, but all correspondence would be translated and read in advance by the US Government. He was also allowed to have telephone contact with some members of his family provided that an interpreter was available. Close relatives could visit him subject to obtaining a US entry visa.

The applicant was visited by his lawyer, who, in an email sent to a member of his family on 7 December 2013, said that he had been placed in an isolated cell. She expressed concern about his mental state.


Guido Raimondi;Ledi Bianku;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney;Yonko Grozev

The applicants, Mr Ilpo Kuokkanen and Mr Harri Johannesdahl, are Finnish nationals who live in Helsinki. They were represented before the Court by Mr Kari Uoti, a lawyer practising in Helsinki.

The Finnish Government (“the Government”) were represented by their Agent, Mr Arto Kosonen of the Ministry for Foreign Affairs.

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

The case concerns criminal proceedings in which a judgment was rendered against the applicants by the Helsinki Appeal Court (hovioikeus, hovrätten) on 28 May 2009. On 10 March 2010 the Supreme Court (korkein oikeus, högsta domstolen) refused the applicants leave to appeal and the Appeal Court judgment thus became final.

On 6 April 2010 the first applicant lodged an extraordinary appeal before the Supreme Court, requesting it to annul the Appeal Court judgment of 28 May 2009 and to refer the matter back to it for a new examination. He claimed that the composition of the court had not been competent (päätösvaltainen, domför) as one of the appeal court justices had been biased in the matter.

On 1 November 2010 the Supreme Court found that the justice in question had been biased in the case and that therefore the composition of the court had not been competent. The Supreme Court thus annulled the Appeal Court judgment as far as the first applicant was concerned and referred the matter back to the Appeal Court for a new examination.

Subsequently, the second applicant also requested the annulment of the Appeal Court judgment of 28 May 2009 as far as he was concerned. The outcome of his request was the same as for the first applicant: the Supreme Court annulled the Appeal Court judgment as far as he was concerned and referred the matter back to the Appeal Court for a new examination. The public prosecutors never requested annulment of the Appeal Court judgment of 28 May 2009.

During the reopened Appeal Court proceedings the applicants claimed that the Appeal Court could no longer examine those charges which had been dismissed by the final Appeal Court judgment of 28 May 2009 as the applicants’ request for reopening did not concern these parts of the case. They referred both to the prohibition of reformatio in peius and to the ne bis in idem principle. On the other hand, the public prosecutors claimed that the case had been referred back to the Appeal Court in its entirety. They claimed that, as the competency of the composition was a matter that concerned all parties, the prohibition of reformatio in peius did not apply and the examination of the case was to be conducted as if the case had only now become pending before the Appeal Court.

On 15 April 2011 the Appeal Court dismissed, without examining the merits, those charges which had already been finally decided by the Appeal Court judgment of 28 May 2009. The court noted that the public prosecutors had not challenged the impartiality of the composition of the court but that only the applicants had made such claims. Therefore, also taking into account the case-law of the Strasbourg Court, the previously dismissed charges could no longer be examined.

By letter dated 31 May 2011 the public prosecutors appealed to the Supreme Court against this Appeal Court decision. They claimed that the rules on impartiality were designed to protect all parties to the proceedings. In such a situation the prohibition of reformatio in peius was no longer applicable. As the earlier judgment had been annulled in respect of the applicants, there existed no earlier final judgment concerning them. The applicants disagreed with the public prosecutors’ conclusions. They pointed out that they did not even have any interest or right to appeal against the Appeal Court judgment of 28 May 2009 in so far as it was favourable to them. A final judgment could not be annulled without any specific request to that effect.

On 26 September 2011 the Supreme Court granted the public prosecutors leave to appeal.

On 29 December 2011 the Supreme Court quashed the Appeal Court decision and referred the case back to it for a new examination. It found that the prohibition of reformatio in peius was valid in the Finnish legal system and that it was applied both in ordinary and extraordinary appeal proceedings. The question of whether a case was annulled and referred back for a new examination in its entirety or only in part depended on the nature of the procedural error in the case at hand. If the procedural error affected the whole judgment and the proceedings, the case was referred back in its entirety, even if the judgment had been favourable to the appellant. The court noted that in the Convention or in its Protocols there was no specific mention of the prohibition of reformatio in peius but that it formed a part of the general fair trial guarantees. The Committee of Ministers had made a Recommendation on this subject in 1992. However, in the case-law of the Court no similar case was to be found. On the other hand, there was caselaw about a judge’s partiality, which issue had been considered by the Court to be such a grave procedural error that it always led to the annulment of a judgment. The principle of ne bis in idem did not prevent new examination of the case if in earlier proceedings a grave procedural error had taken place. All partiality grounds were unconditional. In the present case the lack of competence of the composition concerned the whole Appeal Court proceedings and the judgment in its entirety. Therefore the court had earlier annulled the Appeal Court judgment of 28 May 2009 in its entirety. As the prohibition of reformatio in peius only applied to judgments which had become partially final, it did not apply to the present case in which a final judgment had been completely annulled. The Appeal Court judgment of 28 May 2009 was thus no longer binding in any respect. The Supreme Court reached this conclusion by 3 votes to 2. The decision contains two dissenting opinions.

There is no explicit provision concerning the principle of reformatio in peius in the domestic law. The established interpretation is, largely on the basis of the national case-law, that this principle is valid in the national legal system. This principle is inferable from Chapter 26, section 2, subsection 1, of the Code of Judicial Procedure (oikeudenkäymiskaari, rättegångsbalken; as amended by Act no. 381/2003) which reads as follows:

“[i]n a criminal case, the Court of Appeal may amend, in favour of the defendant, the judgment that the District Court has given on the charges even if only the public prosecutor has appealed against this.”

The Supreme Court has dealt with the principle of reformatio in peius in some of its precedent cases.

KKO:1998:161: After the Appeal Court had referred the criminal case back to the District Court on the basis of the defendant’s appeal, the complainant claimed damages in the retrial proceedings, although he had declared in the earlier proceedings that he had no claims for damages. Because the question about the complainant’s right to damages had not been examined or determined by a judgment before, no impediment existed for examining the claim for damages.

KKO:2008:97: When sentencing the defendant to a punishment for robbery, the District Court had obliged him to pay the complainant damages for mental suffering. When the defendant appealed to the Appeal Court, the complainant, in a counter-appeal, claimed an increase in the damages for mental suffering. The Appeal Court upheld the judgment of the District Court. The complainant abided by the Appeal Court judgment but, on the basis of the defendant’s appeal, the Supreme Court referred the matter back to the Appeal Court for a main hearing. In the new proceedings the complainant, on the basis of the counter-appeal, continued to claim an increase in the damages. The Supreme Court held that the counter-appeal could be examined in the retrial proceedings.

Moreover, Chapter 31, section 1, subsection 1, of the Code of Judicial Procedure (as amended by Act no. 109/1960) provides that:

“On the basis of a complaint invoking procedural fault, a final judgment may be annulled:

1) if the court had no quorum or if the case had been taken up for consideration of the merits even though there was a circumstance on the basis of which the court should have dismissed the case on its own motion without considering the merits;

According to Chapter 31, section 6, of the same Code,

“[i]f it is found that a procedural fault has occurred, the judgment shall be annulled in full or for the part necessary and, if the case is to be retried, it shall be referred back to the court where the procedural fault had occurred. In this event, the Supreme Court shall also order the deadline and manner for the bringing of the case to a retrial.”


Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Prohibition of torture;Degrading treatment)

The list of applicants and the relevant details of the applications are set out in the appended table.

The applicants complained of the inadequate conditions of their detention, which were incompatible with their disabilities, and that there was no effective remedy in that regard. In application no. 38840/14, the applicant also raised other complaints under the provisions of the Convention.


CASE OF BRAGA v. THE REPUBLIC OF MOLDOVA AND RUSSIA

Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment;Positive obligations) (Substantive aspect) (the Republic of Moldova);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect) (Russia);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention) (the Republic of Moldova);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention) (Russia);Violation of Article 34 - Individual applications (Article 34 - Hinder the exercise of the right of application) (the Republic of Moldova)

Dmitry Dedov;Julia Laffranque;Ledi Bianku;Paul Lemmens;Robert Spano

The applicant was born in 1971 and lives in Râbniţa.

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

On 28 July 1999, the applicant was arrested in Râbniţa by virtue of a decision of a prosecutor from the self-proclaimed “Moldavian Republic of Transdniestria” (the “MRT”; for further details about the “MRT”, see Ilaşcu and Others v. Moldova and Russia [GC], no. 48787/99, §§ 28-185, ECHR 2004VII, and Catan and Others v. the Republic of Moldova and Russia [GC], nos. 43370/04 and 2 others, §§ 8-42, ECHR 2012 (extracts)). He was charged with fraud and incitement to bribery.

On 17 May 2000, the Camenca District Court, which was under the jurisdiction of the “MRT”, convicted the applicant and sentenced him to five years’ imprisonment. According to the applicant, he appealed, but his appeal was rejected by the “MRT” Supreme Court on an unspecified date.

The applicant initially served his sentence in Tiraspol Prison no. 2. On 25 October 2001, he was transferred to Pruncul Prison Hospital, which was under the control of the Moldovan authorities. On 30 October 2001, he signed a form of authority authorising the Chişinău-based non-governmental organisation Lawyers for Human Rights (LHR) to represent him before this Court. That form of authority, together with the application form, reached the Court on 19 November 2001.

On 20 November 2001, a lawyer from LHR informed the Moldovan Prosecutor General’s Office that the applicant and seven other people were being held in Pruncul Prison Hospital on the basis that they had been convicted by “MRT” courts. He asked for their immediate release, in view of the fact that they had been convicted by unlawful courts. He also submitted that some of those eight detainees had already lodged applications with the Court, and that a failure to immediately release them or any attempt to transfer them back to the “MRT” authorities would result in the Republic of Moldova incurring responsibility. A similar letter was sent on the same day to the Minister of Justice.

On 21 November 2001, members of LHR organised a press conference,’s Office on the previous day.

Also on 21 November 2001, all eight detainees, including the applicant, were allegedly transferred back to “MRT” prisons.

On 23 November 2001, LHR informed the media of the detainees’ transfer back to the “MRT” authorities on 21 November 2001.

On 26 November 2001, the Head of the Penal Institutions Department of the Ministry of Justice informed LHR that the detainees mentioned in their request of 20 November 2001 were not being held at Pruncul Prison Hospital.

On 7 December 2001, the lawyer from LHR wrote to the “MRT” Ministry of Justice, asking for permission to see the applicant and stating that he was planning to lodge in the applicant’s name an application before the Court. He never received a reply to that letter.

On 22 January 2002, the applicant was released from prison on the basis of an amnesty act.

The applicant described the conditions of his detention in the “MRT” in the following manner. He was allegedly detained in a cell with several people suffering from tuberculosis, and risked contracting that disease himself. During his detention in Tiraspol Prison no. 2, approximately 100 detainees there died of tuberculosis. He was also affected by parasitic insects. The applicant is a person with a category 3 disability, but he was not given any medication during his detention. Food was served only once a day and was of very poor quality.


Violation of Article 6 - Right to a fair trial (Article 6 - Enforcement proceedings;Article 6-1 - Access to court);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions)

Alena Poláčková;Helen Keller;Pere Pastor Vilanova

The applicant was born in 1955 and lives in Budenovsk, the Stavropol Region of the Russian Federation. He is a former military officer.

On an unspecified date the applicant sued his former employer military unit.

On 3 May 2001 the Military Court of the Pyatigorsk Garrison (“the military court”) ordered, inter alia, the head of the respondent military unit to re-calculate the period of the applicant’s service, applying the favourable terms of such calculation for the time when the applicant had participated in a military operation. The military court obliged the head of the military unit to issue the relevant orders, to calculate and to pay the applicant some additional payments and field allowance for the periods specified in the judgment. The judgment contained information on the indexes and other parameters that should be applied for the awarded amounts to be calculated.

On 14 May 2001 the judgment came into force.

In March 2002 the applicant obtained the writ of execution and submitted it to the Department of the Federal Treasury in Budenovsk.

On 19 March 2002 the Department of the Federal Treasury returned the writ of execution to the applicant on the ground that the military unit did not have an account there, and the judgment contained no specific amounts awarded to the applicant.

On 21 March 2002 the applicant submitted the writ of execution to the bailiffs’ service. On the same day the enforcement proceedings were initiated.

On 19 February 2003 the enforcement proceedings were terminated and the writ was returned to the applicant without enforcement following his request to withdraw the writ.

In 2004-2005 the applicant applied to the domestic courts for clarification of the initial judgment with the view to establish the specific amounts due to him. The applicant’s requests were dismissed as being lodged out of time. The courts noted that, in any case, the matter concerning the awarded amounts should have been resolved by way of an additional decision rather than clarification of a final judgment, and informed that an application for an additional decision should have been lodged before the entry into force of the main judgment.

It is not disputed between the parties that the judgment of 3 May 2001 remained unenforced in the part concerning the payment to the applicant of the second salary and the field allowances for the periods specified in the judgment.

On 24 March 2016, after communication of the present case, the Ministry of Finance of Russia calculated the amount due to the applicant under the judgment of 3 May 2001. According to this calculation, the main debt amounted to 80,220.74 Russian roubles.