Violation of Article 3 - Prohibition of torture (Article 3 - Expulsion) (Conditional) (Georgia);Violation of Article 8 - Right to respect for private and family life (Article 8 - Expulsion;Article 8-1 - Respect for family life) (Conditional) (Georgia);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - finding of violation sufficient (Article 41 - Non-pecuniary damage;Just satisfaction)

Aleš Pejchal;André Potocki;Angelika Nußberger;Ann Power-Forde;Dean Spielmann;Dmitry Dedov;Egidijus Kūris;Ganna Yudkivska;Guido Raimondi;Helena Jäderblom;Johannes Silvis;Jon Fridrik Kjølbro;Julia Laffranque;Khanlar Hajiyev;Kristina Pardalos;Luis López Guerra;Mark Villiger;Nebojša Vučinić;Paul Lemmens;Robert Spano;Ksenija Turković

The applicant was born in 1958. He lived in Brussels and died there on 7 June 2016.

He arrived in Belgium via Italy on 25 November 1998, accompanied by his wife and a six-year-old child. The applicant claimed to be the father of the child, an assertion which the Government contested. The couple subsequently had a child together in August 1999 and another in July 2006.

On 29 December 1998 the applicant was arrested and taken into custody on charges of theft. On 14 April 1999 he received a sentence of seven months’ imprisonment, which was suspended except for the period of pretrial detention.

In 1999 and 2000 the applicant and his wife were arrested on several occasions in connection with theft offences.

On 28 April 2000 the applicant’s wife was sentenced to four months’ imprisonment for theft.

On 18 December 2001 the applicant was convicted of a number of offences including robbery with violence and threats, and received a sentence of fourteen months’ imprisonment, which was suspended except for the period of pre-trial detention.

On 9 November 2005 the applicant was sentenced by the Ghent Court of Appeal to three years’ imprisonment for involvement in a criminal organisation with a view to securing pecuniary advantage using intimidation, deception or corruption.

Having already spent time in pre-trial detention, he was subsequently detained in Forest Prison and then in Merksplas Prison, where he continued to serve his sentence.

On 26 November 1998, the day after their arrival, the applicant and his wife lodged an asylum application.

As the applicant’s wife stated that she had travelled through Germany, a request to take back the applicant and his family was sent to the German authorities under the Dublin Convention of 15 June 1990 determining the State responsible for examining applications for asylum lodged in one of the Member States of the European Communities (“the Dublin Convention”).

After the German authorities had refused the request, it transpired that the applicant and his family were in possession of a Schengen visa issued by the Italian authorities. A request to take charge of them was therefore sent to the Italian authorities and was accepted on 4 June 1999.

On 22 September 1999 the applicant lodged a further asylum application, using a false identity. It was immediately rejected after his fingerprints had been checked.

On 23 October 2000 the Aliens Office informed the applicant’s lawyer that the proceedings concerning the asylum application of 26 November 1998 had been concluded on 11 June 1999 with the refusal of the application.

On 20 March 2000 the applicant lodged a first request for regularisation for a period of more than three months, on the basis of section 9(3) (since 1 June 2007, section 9bis) of the Aliens (Entry, Residence, Settlement and Expulsion) Act of 15 December 1980 (“the Aliens Act”). In support of his request the applicant stated that he and his wife had a daughter born in Georgia before their arrival in Belgium and another daughter born in Belgium in 1999.

On 30 March 2004 the Aliens Office declared the request devoid of purpose as the applicant had left the country and been intercepted in Germany. It found that the request was in any case unfounded in view of the fact that the applicant’s medical treatment for tuberculosis had ended (see paragraph 49 below). The Aliens Office also referred to the applicant’s lack of integration in Belgium and the numerous breaches of public order he had committed.

On 28 April 2004 the applicant lodged a second request for regularisation of his residence status on the basis of section 9(3) of the Aliens Act. He cited as exceptional circumstances the duration of his residence in Belgium and his integration into Belgian society, the risks that a return to Georgia would entail for his children’s schooling, the fact that he had been the victim of persecution and his state of health.

The Aliens Office declared the request inadmissible on 5 April 2007 on the ground that the evidence adduced did not amount to exceptional circumstances for the purposes of section 9(3) of the Act such as to warrant the lodging of the request in Belgium rather than with the competent diplomatic mission or consulate, as was the rule. The Aliens Office noted that the applicant had been allowed to remain in the country for the sole purpose of the asylum proceedings, which had been concluded by a final decision. It also cited as reasons the lack of any need for medical supervision, the applicant’s precarious and unlawful residence status, the absence of a risk of persecution in Georgia and the possibility for the children to continue their schooling in that country.

In a judgment of 29 February 2008 the Aliens Appeals Board rejected an application by the applicant to set aside the Aliens Office’s decision. It noted in particular that, since the decision complained of had not been accompanied as such by a removal measure, it could not give rise to a risk of violation of Article 3 of the Convention.

On 10 September 2007, relying on the same grounds as those invoked under section 9ter of the Aliens Act (see paragraph 54 below) and on his family situation, the applicant lodged a request for regularisation on exceptional grounds under section 9bis of the Aliens Act.

On 7 July 2010 the Aliens Office refused the request for regularisation, taking the view that the protection of the State’s best interests took precedence over the applicant’s social and family interests and that by committing serious punishable acts the applicant himself had placed his family’s unity in jeopardy. That decision was served on the applicant on 11 July 2010.

On 26 July 2010 the applicant lodged a request with the Aliens Appeals Board under the ordinary procedure for a stay of execution of the decision of 7 July 2010 rejecting his request for regularisation of his status, together with an application to have that decision set aside. In so far as necessary, the application also related to the order to leave the country issued on the same date (see paragraph 78 below). The applicant alleged a violation of Articles 2 and 3 of the Convention and argued that his serious health problems amounted to exceptional humanitarian circumstances as defined by the Court in D. v. the United Kingdom (2 May 1997, Reports of Judgments and Decisions 1997III), that he would not have access to treatment in Georgia and that the discontinuation of treatment would lead to his premature death. He further alleged an infringement of Article 8 of the Convention and of the International Convention on the Rights of the Child, on the ground that if he were returned to Georgia he would be separated from his family permanently.

The request and application were refused by the Aliens Appeals Board in a judgment of 16 March 2015 on the ground that the applicant had not attended the hearing or been represented.

On 5 November 2009 the applicant’s wife lodged a request for regularisation on exceptional grounds under section 9bis of the Aliens Act, relying on her family situation and the duration of her residence in Belgium.

On 29 July 2010 she and her three children were granted indefinite leave to remain.

In 2006, while the applicant was in prison (see paragraph 17 above), he was diagnosed with chronic lymphocytic leukaemia in Binet stage B, with a very high level of CD38 expression. No treatment was commenced.

As his health had deteriorated, the applicant was admitted to the Bruges prison hospital complex from 14 August to 23 October 2007 in order to receive a course of chemotherapy.

A report prepared on 11 February 2008 by Antwerp University Hospital, where the applicant was being treated, stated that his condition was life-threatening and that, on the basis of the averages observed in 2007, his life expectancy was between three and five years. The report stated that, following treatment, his white blood cell count had fallen significantly.

From 8 to 14 May 2010 the applicant was confined to hospital in Turnhout with respiratory problems. The medical report concerning his stay recommended that the applicant be treated as an outpatient by a lung specialist and a haematologist. This treatment did not materialise on his return to Merksplas Prison, where he was being held.

On 22 July 2010 a doctor from Antwerp University Hospital visited the applicant in the Merksplas closed facility for illegal aliens (see paragraph 79 below), to which he had been transferred in the meantime, in order to carry out a full medical check-up. The doctor’s report noted that the applicant’s leukaemia, which was progressing rapidly towards Binet stage C, had not been monitored sufficiently and that a different course of chemotherapy was required.

In August 2011 the applicant’s condition worsened and the doctors observed that his leukaemia had progressed to Binet stage C, with anaemia and widespread enlargement of the lymph nodes (life expectancy of twentyfour months). It was decided to switch to a different course of chemotherapy.

On 12 September 2012 a doctor from the haematology department of St Pierre University Hospital in Brussels, where the applicant was being treated following his release (see paragraph 82 below), drew up a certificate which stated as follows:

D. Possible complications if treatment is discontinued. Failure to treat the liver and lung disease could result in organ damage and consequent disorders (respiratory insufficiency, cirrhosis and/or liver cancer). Without treatment, the [chronic lymphocytic leukaemia] could lead to the patient’s death as a result of the disease itself or the effects of serious infections.

A return to Georgia would expose the patient to inhuman and degrading treatment.

E. Progression and prognosis. Chronic lymphocytic leukaemia (CLL): good if treated, but the risk of relapse is real, so that close monitoring is required even during remission. ...”

After a relapse diagnosed in 2013, the doctors in St Pierre University Hospital observed in March 2014 that the applicant’s leukaemia had developed into lymphocytic lymphoma, and his chemotherapy was adjusted accordingly. A positronemission tomography (PET) scan performed on 22 September 2014 showed a lack of response to the chemotherapy, a progression of the disease in the lymph nodes and the liver, and a pulmonary infection.

The applicant’s treatment was handed over to the Institut Bordet in Brussels, a hospital devoted exclusively to the treatment of cancer patients.

In December 2014 the applicant began to receive a new course of treatment as part of a study. He was given Ibrutinib, designed in particular to improve his overall condition, which had been compromised by complications arising out of the treatment (fungaemia, pulmonary infections, septicaemia and cholecystitis, resulting in his being admitted to hospital on several occasions). The treatment was prescribed in order to improve the applicant’s overall condition in preparation for a donor stem cell transplant.

A medical certificate issued on 25 May 2015 by the specialist treating the applicant, Dr L., head of the experimental haematology laboratory at the Institut Bordet, stated that the patient’s viral load was stable. The doctor stressed that discontinuing treatment would result in the patient’s death. Because of the patient’s immunosuppression and the aggressive nature of the leukaemia, treatment in a specialised haematology unit was necessary, as was a donor stem cell transplant, which offered the only remaining prospect of a cure provided that it was performed during the two-year “window of response” to Ibrutinib.

The applicant stated that the stem cell transplant, originally scheduled to take place in April 2015, had not been performed to date because he did not have a residence permit in Belgium as required by the Organ Removal and Transplant Act of 13 June 1986.

On 14 July 2015 a new medical report was prepared by Dr L. which read as follows:

“The patient’s CLL [chronic lymphocytic leukaemia]

The patient has been suffering from CLL for nine years (diagnosed in 2006), and by 2011 had already reached stage C and Rai IV [stage IV according to the Rai criteria]. He had already had three lines of treatment prior to Ibrutinib, which he is currently taking, and was refractory to the third line of treatment (R-CVP chemotherapy).

It is clear from the medical literature that if Ibrutinib is discontinued in such a situation, the average life expectancy is three months. ...

The literature also shows that only 7% of patients being treated with Ibrutinib achieve complete remission. Mr Paposhvili is currently in partial remission and is thus wholly dependent on the treatment. This is a new targeted therapy to which he would have no access in his country of origin. With continuous treatment the patient’s prognosis is more favourable, with an 87% survival rate after three years. ...

CLL and especially treatment with Ibrutinib can give rise to serious complications which fully justify regular supervision in a specialised setting. This is particularly true since the patient is in a weak state and has a serious medical history (tuberculosis and stroke) and significant comorbidities (active chronic hepatitis and COPD [chronic obstructive pulmonary disease]). ...

In the case of a young person – Mr Paposhvili is only 57 – the current guidelines advocate using Ibrutinib in order to obtain the best possible response, followed by a donor peripheral blood stem cell transplant. A HLA [human leukocyte antigen] matched donor has been identified for the patient.

Although risky, a donor transplant offers the only prospect of a cure for the patient; he would be unable to have such a transplant in his country of origin.

Conclusions

The [Aliens Office’s medical adviser] concludes ... [that] the condition of the patient’s vital organs is not directly life-threatening. That all depends on what is meant by ‘directly’. The patient is suffering from a cancer that is potentially fatal in the short term (median survival time nineteen months) ... and most likely within six months without appropriate treatment.

Moreover, if the treatment is not tailored to the patient’s overall immunosuppression, there is a serious risk of death caused by infection, especially in a Gold stage II COPD patient with a history of tuberculosis. ...”

On 1 August 2015 treatment with Ibrutinib became eligible for reimbursement in Belgium.

Because of the side-effects of this treatment, which might compromise the donor transplant, the dose of Ibrutinib was reduced from three doses to one dose per day.

In 2000 the applicant was diagnosed with active pulmonary tuberculosis. He was treated for that condition under the emergency medical assistance and social welfare assistance schemes.

During 2008 the applicant’s tuberculosis was found to have become active again.

As a result of that disease the applicant developed chronic obstructive pulmonary disease, for which he received treatment.

In addition, the applicant suffered from hepatitis C, which was also diagnosed in 2006 and was probably linked to a history of drug abuse. It was accompanied by liver fibrosis. According to a medical report dated 24 April 2015 his hepatitis, which had been treated effectively in 2012 and 2013, had become stable.

A magnetic resonance imaging scan carried out in March 2015 showed that the applicant had suffered a stroke, resulting in permanent paralysis of the left arm. The effects of the stroke were managed with an anti-epilepsy drug.

On 10 September 2007, relying on Articles 3 and 8 of the Convention and alleging, in particular, that he would be unable to obtain treatment for his leukaemia (see paragraph 34 above) if he were sent back to Georgia, the applicant lodged a first request for regularisation on medical grounds on the basis of section 9ter of the Aliens Act.

On 26 September 2007 the Aliens Office refused the request on the ground that, under section 9ter(4) of the Act, the applicant was excluded from its scope on account of the serious crimes which had given rise in the meantime to a ministerial deportation order issued on 16 August 2007 (see paragraph 73 below).

On 17 December 2007 the applicant lodged a request for a stay of execution of that decision under the ordinary procedure, together with an application to set aside. He alleged in particular that the Aliens Office had relied exclusively on the ministerial deportation order in excluding him from the scope of section 9ter of the Aliens Act, without investigating his state of health or the risk he ran of being subjected to treatment contrary to Article 3 of the Convention, and without weighing up the interests at stake as required by Article 8 of the Convention.

In a judgment of 20 August 2008 the Aliens Appeals Board dismissed the applicant’s claims in the following terms:

“It is clear from the wording of [section 9ter] that there is nothing to prevent the administrative authority, when dealing with a request for leave to remain on the basis of the above-mentioned section 9ter, from ruling immediately on the exclusion of the person concerned from the scope of the said section 9ter without first being required to take a decision on the medical evidence submitted to it, if it considers at the outset that there are substantial grounds for believing that the person concerned has committed any of the acts referred to in section 55/4, cited above. Indeed, the examination of that evidence is superfluous in such a situation since the person responsible for taking the decision has in any event already decided that the individual is excluded from the scope [of section 9ter].

As regards the alleged violation of Article 3 of the Convention, it should be observed that the decision complained of in the present application is not accompanied by any removal measure, with the result that the alleged risk of discontinuation of treatment in the event of the applicant’s return to Georgia is hypothetical.”

The Aliens Appeals Board also dismissed the complaint under Article 8 of the Convention in view of the fact that the impugned decision had not been accompanied by any removal measure.

In the meantime, on 3 April 2008, the applicant had lodged a second request for regularisation on medical grounds on the basis of section 9ter of the Aliens Act. In addition to his various health problems he referred to the fact that he had been continuously resident in Belgium for eleven years and had lasting social ties in that country, and to his family situation. He also argued that if he was sent back he would be left to fend for himself while ill in a country in which he no longer had any family ties and where the medical facilities were unsuitable and expensive.

The request was refused by the Aliens Office on 4 June 2008 for the same reason it had cited previously (see paragraph 55 above).

On 16 July 2008 the applicant lodged an application with the Aliens Appeals Board to have that decision set aside.

In a judgment of 21 May 2015 the Aliens Appeals Board rejected the application to set aside. It held that, where the above-mentioned exclusion clause was applied, the Aliens Office was not required to rule on the medical and other evidence contained in the request for regularisation. According to the Aliens Appeals Board, such examination was superfluous by virtue of the exclusion clause alone. The Board pointed out that its task was to review the lawfulness of the measure. This review did not permit it to substitute its own assessment of the facts that were deemed to have been established and were not apparent from the administrative file; rather, its task was confined to ensuring that the formal requirement to provide reasons had been complied with and that the reasoning was not based on a manifest error of assessment. As to the complaints alleging a violation of Articles 2 and 3 of the Convention, the Aliens Appeals Board stated that the assessment of the medical situation of an alien facing removal whose request for regularisation had been rejected should be carried out, as applicable, at the time of enforcement of the removal measure.

On 22 June 2015 the applicant lodged an appeal on points of law against that judgment with the Conseil d’État. One of the grounds of appeal was based on Articles 2 and 3 of the Convention. The applicant submitted that the Aliens Appeals Board could not have been unaware that several orders to leave the country had already been issued against him prior to the decision not to examine his request for leave to remain, and that his expulsion had been suspended only as a result of the interim measure applied by the Court (see paragraph 87 below). The applicant further argued that the Aliens Appeals Board had breached the provisions of the Convention by postponing until the date of enforcement of the removal measure the examination of the medical situation of an alien suffering from a serious illness who had requested leave to remain on medical grounds, without studying the specific risks.

In an order of 9 July 2015 the appeal on points of law was declared inadmissible. The Conseil d’État held that, contrary to the applicant’s assertion, the grounds for setting aside advanced before the Aliens Appeals Board had simply stressed, in a theoretical and general manner, that section 9ter of the Act encompassed the application in domestic law of the obligation under Articles 2 and 3 of the Convention prohibiting the removal of a seriously ill person if such a measure was liable to result in death or inhuman and degrading treatment; no specific explanation had been given, however, as to how the applicant himself risked facing that situation. The Conseil d’État also observed that the applicant had not argued before the Aliens Appeals Board that orders to leave the country had been issued against him, or that a removal measure could be revived; he was therefore unable to rely on those arguments in his appeal on points of law. In any event, the Conseil d’État held that the Aliens Appeals Board had in no way erred in finding that the examination of the medical situation of an alien facing removal whose request for leave to remain had been rejected should be carried out, as applicable, at the time of enforcement of the measure.

The applicant was requested to report to the Aliens Office’s medical service on 24 September 2012 for a medical check-up and to enable the Belgian authorities to reply to the Court’s questions.

The report prepared by the medical adviser on that occasion listed the consultations held and the treatment that had been administered to the applicant. It stated that his leukaemia had stabilised after several cycles of chemotherapy and was being monitored closely, and that the applicant was under medical supervision for his lung disease.

Referring to the Court’s judgment in the case of N. v. the United Kingdom ([GC], no. 26565/05, ECHR 2008), the report concluded as follows:

“On the basis of this medical file it cannot ... be concluded that the threshold of severity required by Article 3 of the Convention, as interpreted by the Court, has been reached ...

It appears from the medical file that the diseases to which the medical certificates refer ... do not disclose a direct threat to the patient’s life. The conditions from which the applicant suffers are serious and potentially fatal but are currently under control.

None of the patient’s vital organs is in a condition that is directly life-threatening. His hepatitis C is not currently causing any cirrhosis. The pulmonary disease is being controlled by treatment consisting solely of an inhaled corticosteroid. The patient’s haematological disorder is currently stable. The lymph nodes are no longer swollen and the patient’s haemolytic anaemia is resolved. Chemotherapy has been discontinued for the time being.

... Neither monitoring of the patient’s vital parameters nor ongoing medical supervision is necessary in order to ensure the patient’s survival.

The disease cannot be considered at present to be in the terminal stages. ... The patient is close to Binet stage A at present. His chronic obstructive pulmonary disease is also currently under control.”

A medical report drawn up on 23 June 2015 by the medical adviser to the Aliens Office provided a detailed review of the applicant’s clinical history and current state of health and the treatment being administered. It concluded as follows:

“On the basis of [the] medical file it cannot therefore be concluded that the threshold of severity set by Article 3 of the Convention, which requires a risk to life on account of the applicant’s critical condition or the very advanced stage of his or her illness, has been reached (N. v. the United Kingdom [GC], no. 26565/05, ECHR 2008, and D. v. the United Kingdom, 2 May 1997, Reports of Judgments and Decisions 1997III).

The diseases referred to in the most recent update to the medical file ([Dr L.], 25 May 2015) ... do not disclose:

– a direct threat to the life of the patient. The illnesses from which the applicant suffers are serious and potentially fatal but are currently under control. ...

– that the condition of the patient’s vital organs is directly life-threatening. ...

– a critical state of health. Neither monitoring of the patient’s vital parameters nor ongoing medical supervision is necessary in order to ensure the patient’s survival. The disease cannot be said to be in the terminal stages at present ...”

On 10 June 1999, on the grounds that the Belgian authorities did not have responsibility under the Dublin Convention for examining the asylum application, the Aliens Office issued an order for the applicant and his wife to leave the country with a view to their transfer to Italy. However, their departure was postponed because the applicant’s wife was pregnant.

After the birth, the family was granted leave to remain until 14 October 1999 because the new-born baby was in hospital. Their leave to remain was subsequently extended until 15 March 2000 on the ground that the child needed regular supervision by a paediatric gastroenterologist.

The time-limit for enforcement of the order for the family to leave the country was extended several times during the first half of 2000 because of the need to treat the applicant’s tuberculosis (see paragraph 49 above) and the six-month course of anti-tubercular treatment required by the whole family.

On 23 October 2000 the Aliens Office informed the applicant’s lawyer that the time-limit had been extended until such time as the applicant and his child were fully recovered.

On 16 August 2007, while the applicant was serving a prison sentence (see paragraph 17 above), the Minister of the Interior, in a deportation order issued under section 20 of the Aliens Act, directed the applicant to leave the country and barred him from re-entering Belgium for ten years. The order referred to the applicant’s extensive criminal record, allied to the fact that “the pecuniary nature of the offences demonstrate[d] the serious and ongoing risk of further breaches of public order”.

The order became enforceable on the date of the applicant’s release but was not in fact enforced because the applicant was undergoing medical treatment at the time.

The applicant, who was in hospital, did not contact his lawyer in order to lodge an application to have the ministerial order set aside. However, on 15 November 2007 the lawyer lodged an application on his own initiative. In a judgment of 27 February 2008 the Aliens Appeals Board rejected the application as being out of time.

In the meantime, as the applicant was about to finish serving the prison sentence imposed in 2005, he was transferred on 14 August 2007 to Bruges Prison with a view to implementation of the ministerial deportation order. He remained there until 27 March 2010, when he was transferred to Merksplas Prison.

During his time in Bruges Prison the applicant was visited on an almost daily basis by his wife and/or his children. The authorities of Merksplas Prison, to which he was subsequently transferred and where he remained until 11 July 2010, informed the applicant that they did not have a record of the number of visits he had received.

In parallel with its decision of 7 July 2010 refusing the applicant’s request for regularisation on exceptional grounds (see paragraph 29 above), the Aliens Office on 7 July 2010 issued an order for him to leave the country, together with an order for his detention. These orders, made on the basis of section 7(1)(1) of the Aliens Act, were served on the applicant on 11 July 2010.

Also on 7 July 2010 it was decided that the applicant should be transferred on 13 July to the Merksplas closed facility for illegal aliens with a view to his removal to Georgia.

On 16 July 2010 the Georgian embassy in Brussels issued a travel document valid until 16 August 2010.

On the same day the applicant lodged a request for a stay of execution under the ordinary procedure, together with an application to set aside, directed specifically against the above-mentioned order to leave the country of 7 July 2010.

On 30 July 2010, two days after the indication by the Court of an interim measure (see paragraph 87 below), an order was made for the applicant’s release and he was given until 30 August 2010 to leave the country voluntarily.

In a letter dated 30 August 2010 counsel for the applicant applied for an extension of the time-limit for enforcement of the order to leave the country. The time-limit was initially extended until 13 November 2010 and was subsequently extended several times until 19 February 2011.

On 18 February 2012 the Aliens Office issued an order to leave the country “with immediate effect” pursuant to the ministerial deportation order of 16 August 2007.

The above-mentioned request and application were rejected by the Aliens Appeals Board in a judgment of 29 May 2015 on the ground that the applicant had not attended the hearing or been represented.

In the meantime, on 23 July 2010, the applicant applied to the Court for interim measures under Rule 39 of the Rules of Court. Relying on Articles 2, 3 and 8 of the Convention, he alleged that if he were removed to Georgia he would no longer have access to the health care he required and that, in view of his very short life expectancy, he would die even sooner, far away from his family.

On 28 July 2010 the Court indicated to the Belgian Government that it was desirable, in the interests of the parties and the proper conduct of the proceedings before the Court, to suspend enforcement of the order for the applicant to leave the country issued on 7 July 2010 “pending the outcome of the proceedings before the Aliens Appeals Board”.

The applicant was arrested on several occasions between 2012 and 2015 for shoplifting.

In addition, in July 2013 the Aliens Office was contacted by the Luxembourg police and customs cooperation centre, which reported that the applicant was in detention in the Grand Duchy of Luxembourg.

In May 2014 a warrant was issued for the applicant’s arrest for theft. The applicant was detained in Bruges Prison and released a few days later.

Two notarised deeds of sale dated 24 March and 5 August 2015 record the transfer by the applicant, represented by E.B., to a certain Aleksandre Paposhvili, of a plot of building land for a sum of 30,000 euros (EUR) and a plot of farmland for a sum of EUR 5,000. Both plots are located in the village of Kalauri in the Gurjaani region of Georgia.


CASE OF ABDULLA ALI v. THE UNITED KINGDOM

No violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing)

George Nicolaou;Guido Raimondi;Krzysztof Wojtyczek;Ledi Bianku;Päivi Hirvelä;Paul Mahoney

The applicant was born in 1980 and is currently detained at HM Prison Frankland.

In August 2006 the applicant was arrested, along with others, in the context of a large-scale counter-terrorism operation. It was alleged that he had conspired to construct and simultaneously explode improvised explosive devices (“IEDs”) on transatlantic passenger aircraft in flight, using suicide bombers.

A first trial of eight defendants, including the applicant, on charges of conspiracy to murder (Count 1) and conspiracy to endanger the safety of an aircraft (Count 2) began in the Crown Court on 4 April 2008. The prosecution case in respect of the conspiracy to murder charge was that the means by which it was to be effected was by way of detonation of IEDs on board aircraft in mid-flight.

After the close of the prosecution case, the indictment was amended to add a further count (Count 1A) which alleged a conspiracy to murder but did not specify the means by which the murder would be carried out. The count was added at the request of the prosecution to cover the possibility that the jury was satisfied that a defendant had agreed to murder but was not aware of the means settled upon to bring the conspiracy to fruition. Count 1 was amended to make clear that it was concerned with a conspiracy to murder specifically by way of detonation of IEDs on aircraft mid-flight.

On 8 September 2008 the applicant was convicted of Count 1A but the jury was unable to reach a verdict on Count 1. The jury was also unable to reach verdicts on some or all counts in relation to six other defendants. The eighth defendant was acquitted of all charges.

An exchange followed between judge and prosecuting counsel and the judge ordered the prosecution to indicate by 26 September 2008 whether a retrial would be sought.

The announcement of the verdict was widely covered in the press and the media. The reports included references to material which was never put before the jury (see paragraphs 19-26 below). The media also attacked the jury’s failure to return a guilty verdict on Count 1.

On 10 September 2008 lawyers for one of the defendants wrote to the Attorney General seeking, inter alia, details of what steps had been taken to ensure the integrity of post-verdict/pre-retrial decision reporting and to prevent the reporting of inadmissible and prejudicial materials.

On the same day, the Crown Prosecution Service (“CPS”) announced its intention to seek a retrial of the applicant and the other defendants. Communicating this decision to the media, it added:

“The CPS would like to remind media organisations of the need to take great care in reporting the events surrounding this alleged plot. These remain allegations only and, if retrials take place, the defendants have the right to a fair trial. It is extremely important that there should be responsible media reporting which does not prejudice the due process of law.”

On 11 September 2008 every national newspaper reported that the applicants were to face a retrial. General reporting about the case nevertheless continued until around 14 September 2008.

The Attorney General replied to the defendant’s lawyers’ letter on 25 September confirming that the observations had been noted and were receiving consideration.

The applicant subsequently applied for a stay of proceedings (i.e. an order effectively terminating his prosecution in respect of Count 1). One of the grounds for the application was that a fair trial was no longer possible as a result of alleged prejudicial publicity which had occurred following the conclusion of the first trial.

On 18 December 2008 Mr Justice Henriques refused the request for a stay. He summarised the defence case as follows:

“It is the defence case ... that the coverage was manipulated and orchestrated by State sources, either intelligence services, police anti-terrorist branches or government officials. It is asserted that there was a widespread press briefing exercise designed and intended to inform the media of non-evidential material for publication post-verdict, the effect of which was to vilify the defendants in the eyes of the public by supplying the media in confidence with significant undisclosed background material.

The State, it is said, failed to take any steps either to notify the court of the confidential press briefings, thus preventing appropriate orders from being made to prevent prejudicial publicity resulting from its own briefings.

This was, it is said, a deliberate attempt to manipulate the court’s process on any retrial by seeking to ensure that the world at large was prejudiced against the defendants by an unprecedented volume of St ate-sourced media coverage ...”

He considered it implicit in the submissions that the applicant’s argument was that no retrial jury exposed to this volume of publicity could try the case as an unbiased, independent and impartial tribunal.

Henriques J summarised the seven examples of inadmissible material which had been published by the press to which the defence had referred by way of illustrative examples. He stressed that this was “by no means the totality of the information complained of”.

The first example concerned disclosure of evidence not adduced at trial as to the applicant being in telephone contact with the leader of the 21 July 2005 failed bombings of the London transport system. The statement appeared in almost every national paper and on national media. It was attributed to different sources in different publications, including, inter alia, senior detectives, police, “records show” and counter-terrorism officials.

The second example concerned disclosure of evidence not adduced at trial as to deeper links between some of the applicants and others convicted of terrorist offences. This included evidence that the applicant had taken trips to Pakistan at the same time as those responsible for the explosions on the London transport system on 7 July 2005 and the failed 21 July bombing attempt and had been in regular telephone contact with the ringleader of the latter attack. The story was published in virtually every national newspaper and was broadcast on national media. It was attributed to, variously, detectives, intelligence officials, counterterrorism sources, investigators and trial officials.

The third example concerned disclosure of evidence not adduced at trial as to the defendants’ acquaintance and contact with a certain Rashid Rauf in Pakistan, who had allegedly put them in touch with Al-Qaeda’s leadership. This had been published in almost every national newspaper and broadcast on national media. Some of the attributed sources included the Pakistani Interior Minister, British officials, intelligence services, internal US intelligence documents, security sources and named senior officials in the United Kingdom and the United States.

The fourth example concerned assertions which were not the subject of evidence or disclosure at trial that the plot might have been overseen by Abu Ubaydah Al Masri, the former head of Al-Qaeda’s external operations, who had allegedly overseen the July 2005 London bombing plots. The information was carried by several newspapers and was attributed, inter alia, to the police, counter-terrorism officials, intelligence agencies and senior British and American officials.

The fifth example concerned assertions which were not the subject of evidence or disclosure at trial that the alleged plot was disrupted following interception of a text message encouraging the conspirators to act. There was also reference to telephone calls and text messages between the UK and Pakistan and a specific incriminating text sent to the applicant. These were published in some national newspapers and broadcast on television, with the attributed source being a British Government source.

The sixth example concerned assertions which were not the subject of evidence or disclosure at trial that the telephones of unspecified defendants were being intercepted by the police and that interception had revealed that a dummy run was being planned. Several newspapers and media sources carried the story, with the source being variously named as the police, counter-terrorism police and the head of Counter-Terrorism Command.

The seventh example concerned assertions that the United States Government had pressed Pakistan into making arrests before all the legal evidence had been gathered. The information was reported in several newspapers and by several broadcasters. A terrestrial television channel carried the express statement that the British State authorities had reason to delay the effecting of arrests owing to known intelligence that the conspirators would perform additional incriminating acts in furtherance of the airline conspiracy. The source was said to be the head of CounterTerrorism Command, US sources, senior British police and counter-terrorism sources, and the former shadow Minister for Homeland Security in the United Kingdom.

Henriques J set out the events immediately following the handing down of the verdicts and continued:

“It is simply not possible in this judgment to recite each and every objectionable word published by the media ... Whilst it will be convenient to cite in due course some of the worst examples, I readily accept that the multiplicity and breadth of reporting must be considered in order to gauge the potential effect upon any juror who will have been exposed to these or any significant number of these many reports ... I have read everything to which my attention has been drawn.”

He noted that there was an “avalanche of objectionable material” in prominent position in both broadsheet and tabloid newspapers. There was news coverage across all television and radio channels. There was, and continued to be at the time of Henriques J’s ruling, vast Internet coverage which could be accessed with ease. The very essence of the large majority of the material asserted that all of the defendants were guilty of the conspiracy to blow up aircraft. Henriques J categorised the offending material as follows:

“(i) the defendants have strong links with several prominent Al Qaeda terrorists, including Rashid Rauf, 7/7 bombers and 21/7 bombers, of which the jury were not informed; (ii) but for the premature arrest in Pakistan of Rashid Rauf, for which the Americans are to blame, more evidence would have become available to the prosecution; (iii) the activities of the defendants were being monitored by phone taps and other forms of interception and a dummy run was anticipated which might be used to carry out a real attack; (iv) the investigation had prevented unspeakable carnage and loss of countless lives; (v) the jury were incompetent, the evidence was very strong and the jury’s verdict was astonishing; (vi) the trial judge mishandled the trial and in particular permitted a two-week break during the jury retirement, the jury returning for only five days at the commencement of their deliberations before then going on holiday.”

On the subject of pre-verdict briefing, Henriques J said:

“... [I]t is common practice for there to be pre-verdict briefings in high profile cases. There are any number of matters in which the public have an interest. There is frequently a public debate concerning topics raised by the case. Instant reporting is demanded by the public at large. They are entitled to it. It is their right. Before there can be immediate post-verdict reporting, there must be pre-verdict briefing.”

Turning to the first of the specific complaints made by the defence, the judge noted that prosecution counsel had conceded that there had been some “significant disclosure of non-evidential material by the Executive” but had “vehemently objected” to any suggestion that there had been secret briefings. The judge did not accept that secret Executive press briefings had taken place. He referred to material published in particular in the United States and concluded that there were a “multiplicity of avenues” through which journalists could have gained information other than through secret briefings. He explained:

“... I regard the submission that the Executive quite deliberately briefed the press during the trial with a view to disadvantaging the defendants in any retrial that might possibly take place as fanciful ... The plot alleged requires not only foresight of a retrial during the trial itself; it requires foresight that the press will breach the embargoes that they have signed not to disclose such material until conclusion of the proceedings.”

As to the second allegation, that the State “perpetrated a gross manipulation and abuse of the court process by failing to restrain publicity resulting from its own briefings, the judge found again that there was absolutely no evidence that any individual had been party to such a plot. He described as a “most extravagant allegation” and rejected it “with certainty”.

On the third question whether the defendants could receive a fair trial, having regard to the publicity, the judge noted that the publicity was worldwide, often repeated and reported by every branch of the media, including the Internet and associated blogs. It had run in the main from 8 September to 14 September 2008, and much of the reporting remained available on the Internet. He reviewed in some detail the major publications of 9 September as well as a few of the worst other examples. As to the law on adverse publicity, the judge explained:

“As to the legal principles relevant to a defendant receiving a fair trial, I have reminded myself of Montgomery v HM Advocate [see paragraph 60 below], and in the context of this case reminded myself that the only issue to be addressed is the right of a defendant to a fair trial and no assessment of the weight to be given to the public interest comes into the exercise. The fact that the allegations here are of the gravest nature is wholly irrelevant. The defendants must receive a fair trial, however grave the allegations and however far-reaching the consequences may be of staying this trial.”

The judge considered a number of domestic judgments concerning the impact of prejudicial publicity before or during trial. He continued:

“I have concluded that a fair trial is in this case possible for all defendants on this indictment and propose to ensure that each of them does receive a fair trial. In reaching that conclusion I have brought the experience of many years in the criminal courts to this decision. I trust juries and have every confidence that they do indeed have regard to the directions given by judges.

I trust a jury in this building to decide whether they can be sure on the evidence presented to them that there was indeed a plan to blow up aircraft. I cannot accept the proposition that an English jury may convict because of something they may remember having read many months earlier. I do believe that juries pay attention and act upon the directions we give them. I will give them at the outset of the trial a most careful direction tailored particularly to this case and I shall canvass the direction with counsel before I deliver it. If necessary, I will repeat it from time to time.

I have no fears that the jury will be influenced by those earlier press reports. They know that none of us can believe everything that we read in the press ...

I believe that sufficient time will have passed by February 16th of next year, over five months since the publicity ...

There have been other terrorist trials in the meantime occupying crime correspondents and their readers. I am sure that the facts will have receded and faded, as will any possible prejudice.”

The judge further pointed out that all defendants had admitted conspiracy to commit public nuisance by making martyrdom videos and that the first three defendants had admitted conspiring to cause explosions. These convictions would be put before the jury in the retrial and, the judge said, in the face of these admissions links to other terrorists, if remembered by jury members, became “rather less significant”. In any event, in his experience, the impact of pre-trial publicity and prejudicial media coverage was minimal even in high-profile cases. He cited examples of cases where offensive pre-trial publicity had taken place but the defendants had subsequently been acquitted. He concluded that he had absolutely no doubt that juries took their responsibilities most seriously and decided cases on the evidence presented to them in court. He fixed the retrial to commence on 16 February 2009.

The retrial of seven defendants, including the applicant, on Count 1 and four defendants on Count 1A duly commenced on 16 February 2009 but was twice aborted in the early stages. On 2 March 2009 a further jury was selected and sworn. During jury selection that day, the judge directed the potential jury members as follows:

“It is, of course, of critical importance that we are able to select a jury which is completely unbiased and a jury which is prepared to give its time to a very important case indeed. You will appreciate the gravity of the allegation, a plan to blow up a number of aircraft effectively simultaneously. It is a hugely important task, quite possibly the most important task required or asked of any of you; hugely important public service. Of course not all of you will be in a position to serve and for those who do undertake the task, it will necessarily involve a degree of self-sacrifice.”

He specifically asked them whether there was any reason arising from their beliefs, occupation or any other matter that might inhibit their ability to return an impartial verdict in this trial or whether they or any relative or close friend, held views of such strength that they might materially influence their consideration of the case.

On the matter of the adverse publicity prior to the retrial, he said the following:

“Next: as a result of publicity given to this case and to these allegations, do any of you hold any pre-conceived views of guilt or innocence incompatible with an unbiased discharge of your duties as a juror? No. Thank you.

Next: are you, or is any member of your immediate family or any close friend, or have you, or any member of your immediate family or any close friend, been employed by any media agency involved in the investigation and/or reporting of this case? Come forward, sir.”

He further asked the potential jury members questions concerning two recent broadcasts which had discussed the case:

“Two broadcasts. One broadcast: did any of you watch this programme on BBC television, it was two weeks ago, that is not yesterday, not the Sunday before that but the Sunday before that, in other words 15 days ago, at 10 o’clock in the morning, BBC1, there was a programme broadcast called The Big Questions? The host was Nicky Campbell and there were a panel of three or four experts, if I can call them that, one of whom certainly was a rabbi, when there was a discussion which touched upon the plot to blow up airliners and terrorism and the facts giving rise to this case were to some extent touched upon. Did anybody, 10 o’clock in the morning, watch that programme? Could you come forward, please, sir.

Then exactly two weeks ago today, 10.00 pm on a Monday evening, Radio 4, there was broadcast a programme, The World Tonight, in which the alleged plot to blow up airliners was discussed. Did anybody listen to that radio programme on Radio 4? No. Next – sorry, come forward, please. Thank you. I told you that this case started some two weeks ago and on all the major television programmes publicity was given to it. Did any of you, as a result of seeing that publicity, carry out any internet research; in other words, have any of you carried out internet research in the last two weeks into the alleged airline plot? No. Thank you very much.”

Finally, the jury having been selected, the judge directed the jury as follows:

“Can I please give you some additional instructions? There may now be a temptation, knowing that you are going to serve upon this case, to try to find out a little bit more about it and if any of you are addicts of the internet or the web, there may be a temptation to go on to it and read about it and see about it. Please do not do that. There was an element of inaccurate and unsatisfactory reporting at the time this matter first came to light. The allegations were not accurately reported in every instance and it is critically important that you decide the case upon the evidence that you hear in court and nowhere else. We tell jurors in all criminal cases not to carry out any research of their own. In a typical pub fight case we tell jurors not to go and have a look at the pub, not to turn themselves into sleuths because what is critical is you decide the case only upon what you hear in court. The defendants are entitled to know the basis and the exact basis upon which they are being tried. So, accordingly, please do not, either before the case starts tomorrow or indeed at any stage, carry out any internet research or indeed any research of any kind. I will also give you further instructions not to read any newspapers or listen to any television reports. The reason for that is sometimes they are inaccurate, sometimes they are speculative and they are always partial reporting. The only way you can hear and receive all the evidence is by being here in court, listening to it. That is where you receive the information.

The other danger is when you go back tonight you will say, ‘I’ve been selected for a jury’ and those with whom you live or those you meet tonight may say to you, ‘I know all about that case. I have read about it in the newspapers.’ Please do not discuss the case with anybody. It will be quite wrong for anybody to tell you what they think about the case and it might affect your judgment in the long run. You have been selected to try a terrorist case, tell them, because that is what the allegation is here, one of terrorism, and leave it at that. There is no purpose at all in discussing the facts of the case with anybody and, indeed, it would be absolutely wrong and a contempt of court if you were to do so. I have explained the real reason for not doing so is the person you were discussing it with might be playing a part in deciding the case and you and only the 12 of you must do that, nobody else must play any part in doing so. There are other instructions which I will give you tomorrow after the case has started, but for the time being that suffices.”

The trial commenced with the prosecution’s opening speech on 3 March 2009. At the end of the first day, the trial judge gave the jury the following instructions:

“I am obliged to give you certain instructions. Some of them you are familiar with because I said a few things to you yesterday. I remind you, please, do not carry out any research of any kind into this case, either over the internet or in any other way at all. That includes not visiting any site referred to in the case. All your information must come to you in this court. Please ignore any newspaper reports, if there are any, into this case and please disregard any broadcast of any kind that you may hear. It is vital that you do not discuss the case with anybody for reasons which I gave you yesterday. Other people will express views which might in due course affect your judgment. The decision must be the decision of the 12 of you and nobody else.”

The judge reminded the jury intermittently throughout the trial that they were not permitted to discuss the case with family or friends or to carry out Internet research. On 30 June 2009, the first day of the parties’ closing speeches, he said:

“We have embarked now upon a new phase of this case and now is as good a time as any to remind you of what I said earlier in the case about avoiding information which may in some way touch upon terrorism or even this case. I remind you again, please: do not carry out any internet research. Do not read any books. Do, please, switch channels if a television programme comes on which is obviously about terrorism or some related topic. Please avoid all newspaper articles and the like which deal with terrorism. The reason for that is to allow you to approach the facts of this case and when you come to reach your several decisions with a clear mind, unaffected by anything outside of this case, anything originating outside this courtroom. You decide this case on the information that you have received within this court and nothing else.”

Again during his summing-up, the trial judge reminded the jury that they should not discuss the case with anyone outside the jury. Once the jury had retired to consider its verdict, he reminded them at the close of each day that they should not discuss the case outside the jury room.

On 7 September 2009 the applicant was convicted on Count 1. Of the other six defendants tried on Count 1, two were convicted, three were acquitted and the jury were unable to reach a verdict in respect of one. Of the four defendants tried on Count 1A, one was convicted and the jury were unable to reach a verdict in respect of the other three.

The applicant was sentenced to life imprisonment with a minimum term of forty years.

The applicant sought leave to appeal against his conviction. The Court of Appeal granted leave on several grounds, including the question whether the retrial was fair having regard to the media publicity after the first trial.

On 19 May 2011 the appeal against conviction was dismissed.

The court noted the high media interest in the first trial and the simultaneous reporting of the trial proceedings, including the verdicts. It observed that in the circumstances it was impossible to have imposed restrictions on the verdicts as no-one had applied to the trial judge to ask for this to be done before the verdicts were taken. Even if such an application had been made and granted, given the worldwide interest in the case the Court of Appeal considered it difficult to see how publication of the verdicts could have been prevented in jurisdictions outside the trial court’s jurisdiction.

Responding to the submission on behalf of the applicant that jurors at his retrial could no longer be relied upon to follow the trial judge’s directions, the court said:

“92. To the extent that there remains the risk that, despite what jurors are told by a judge, an individual juror might look up matters on the internet, any attempt by an individual juror to use what was found to influence the views of the other jurors is, in our judgement, bound to fail. For what was found on the internet to have any influence on the verdict of a jury, it would require other members of the jury to disobey their oath. In our judgement, ... the trial process in this trial was capable of coping with the adverse publicity. There was, it must be emphasised, no evidence at all to suggest that any juror had sought information on the internet.”

The Court of Appeal emphasised that allegations that the publicity and disclosure of certain facts by State authorities had been deliberate were not pursued on appeal. It noted that embargoed police or prosecution service briefings were commonplace in major trials and that no challenge was made to the propriety of the press briefings. It also reviewed the actions of the prosecution and the Attorney General. The court then turned to consider in detail the ruling of Henriques J of 8 December 2008 and expressed itself to be “entirely satisfied” that he had not only applied the correct principles but had come to a conclusion that was open to him, namely that a fair-minded observer would consider that a jury, properly directed, could fairly try the applicant. It explained:

“104. Not only do we consider that conclusion open to him but we also consider that that conclusion was correct. We accept ... that trying the case elsewhere was not an option; asking potential jurors about their knowledge of the case again was not an option. However, we do consider that, given the trial process and the months that had elapsed before the second trial, the informed observer would be satisfied that a jury would consider fairly and impartially the evidence and would have no regard to the publicity to which we have referred.”

The court added:

“105. We have also taken into account the fact that, unlike the decisions in Abu Hamza and Montgomery v HM & Another [2003] 1 AC 641 [see paragraphs 60-61 below], this was not a case concerned with pre-trial publicity but with publicity following a conviction. The fact that it was a trial following a conviction on one count in our view is an important factor that may be viewed as more significant than pre-trial publicity. However, looking at the matter overall, we consider that the trial process could ensure a fair trial and a fair-minded observer would think that as well.”

On 16 November 2011 the Court of Appeal declined to certify that the applicant’s case raised a point of law of public importance.


No violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions)

András Sajó;Egidijus Kūris;Iulia Motoc;Marko Bošnjak;Paulo Pinto De Albuquerque;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer

The applicant was born in 1948 and lives in Kaunas.

In 1991 the applicant asked the authorities to return to her some buildings and a plot of land owned by her father before nationalisation in 1940. In November 1995 the applicant wrote to the authorities to ask why the buildings and the land had been sold to other persons in 1992. The authorities replied in December 1995 that the applicant had given an incorrect address for the buildings when submitting her request for her property rights to be restored and the buildings in question had already been privatised.

On 22 October 1996, upon their own initiative, the authorities suggested to the applicant that she submit a request to be paid monetary compensation for the buildings, if she did not have any objections to such a form of restitution. On 4 November 1996 the authorities indicated that the documents submitted by the applicant did not prove that her father had owned the buildings in question and asked her to provide additional documents or – if she did not have those documents in her possession – to ask the domestic courts to establish as a legal fact that her father had owned those buildings.

On 27 April 1999 the applicant lodged a claim with the Kaunas District Court, asking it to establish as a legal fact that before the 1940 nationalisation her father had owned the buildings and a plot of land. On 18 August 1999 the Kaunas District Court stated that there was a dispute about the applicable law and left the applicant’s claim unexamined. The court also suggested to the applicant that she submit her claim in accordance with the rules governing contentious proceedings (as opposed to the rules applicable to the procedure for the establishment of a legal fact).

On 28 May 2003 the Kaunas District Court established as a legal fact that the applicant’s father had owned the buildings before the 1940 nationalisation.

On 4 July 2003 the applicant indicated that she wanted to receive compensation in the form of securities. The authorities asked the Centre of Registers (a State enterprise) to assess the value of the buildings, which was set on 14 July 2003 at 36,000 Lithuanian litai (LTL – approximately 10,426 euros (EUR)). On 18 September 2003 the authorities recommended that applicant’s and her sister’s property rights to their father’s property be restored by paying them compensation in securities.

On 9 October 2003 the authorities adopted a decision to restore the applicant’s and her sister’s property rights by paying them LTL 36,000 (approximately EUR 10,426) in total in securities.

On 10 June 2004, the applicant lodged a claim with the Kaunas District Court, requesting the annulment of the valuation of the buildings made by the Centre of Registers on 14 July 2003 (see paragraph 10 above) and the appointment of independent experts to assess the market value of the buildings because she considered that the value set for the buildings was too low. The applicant’s claim contained deficiencies, which she failed to eliminate within the time-limit set by the Kaunas District Court; accordingly, on 13 July 2004, the court decided to rule that the applicant’s claim had not been lodged.

The applicant lodged a separate complaint, where she claimed that the authorities assessed the value of the buildings incorrectly, and complaining that the assessment of the value of the buildings had been made before the decision to restore her property rights had been taken. On 23 August 2004 the Kaunas Regional Court held that the Kaunas District Court had made procedural mistakes and returned the case for fresh examination to the Kaunas District Court.

The applicant lodged a modified claim with the Kaunas District Court, complaining that the assessment of the value of the buildings had been made three or four months before the decision to restore her property rights had been taken. On 2 February 2005 the Kaunas District Court held that although there were no provisions in the domestic law indicating how soon after the assessment of value the decision to restore property rights had to be taken, in the present case the time between the assessment and the decision had not been excessively long. The court therefore dismissed the applicant’s complaint.

The applicant appealed raising the same complaints as she did before the Kaunas District Court (see paragraph 14 above), and on 13 June 2005 the Kaunas Regional Court held that the assessment of value of the buildings had been based on several methods of calculation and in accordance with the provisions of the domestic law. It therefore dismissed the applicant’s appeal.

The applicant lodged an appeal on points of law, and on 14 December 2005 the Supreme Court decided that the case had to be examined before the administrative rather than civil courts and referred the case for examination to the Kaunas Regional Administrative Court.

On 23 March 2006, during the hearing before the Kaunas Regional Administrative Court, the applicant asked for the examination of the case to be postponed that she might have time to eliminate deficiencies in her claim. She also claimed that she was not aware of the fact that she had to submit a request to renew the time-limit for lodging a complaint separately, and asked the court to provide her with an opportunity to do that. Her requests were granted and the examination of the case was postponed until 9 May 2006. On 19 April 2006 the applicant lodged a modified claim in which, inter alia, she asked the Kaunas Regional Administrative Court to (i) annul the assessment of the value of the buildings made by the Centre of Registers, (ii) to annul that part of the order of the authorities for her property rights to be restored in which the value of the buildings was indicated and (iii) to renew the time-limit for lodging a complaint. On 9 May 2006, during the hearing at the Kaunas Regional Administrative Court, the applicant asked for the appointment of an expert to determine the market value of the buildings. On 6 June 2006 the court suspended the proceedings, appointed an expert and asked the expert (i) what the market value of the buildings had been on 14 July 2003 and (ii) what the market value of the buildings had been today, i. e. when the expert had been appointed. In April 2007 the expert stated that on 14 July 2003 the market value of the buildings had been LTL 56,850 (approximately EUR 16,465) and that the market value of the buildings at the time that the examination of the case had started had been LTL 164,900 (approximately EUR 47,758). Subsequently the court proceedings were resumed, and on 21 September 2007 the Kaunas Regional Administrative Court held that the new assessment of value of the buildings was more accurate and decided to annul the assessment of value of 14 July 2003 by the Centre of Registers and that part of the decision of 9 October 2003 to restore the applicant’s property rights in which the value of the buildings was set at LTL 36,000 (approximately EUR 10,426) (see paragraphs 10 and 11 above). The applicant did not appeal and the decision became final on 5 October 2007.

On an unspecified date, the applicant lodged a claim with the Kaunas Regional Administrative Court, asking, inter alia, for the authorities to be obliged to urgently re-issue the annulled part of the decision of 9 October 2003 (see paragraph 11 above). On 12 December 2007 the Kaunas Regional Administrative Court allowed the applicant’s claim.

On 18 May 2009 the Kaunas Regional Administrative Court examined and then rejected a claim by the applicant seeking for the Kaunas Municipality to be obliged to pay her LTL 82,450 (approximately EUR 23,879) for the buildings and to award her LTL 96,370 (approximately EUR 27,911) in damages. The court held that the assessment of value in itself did not give rise to any legal consequences for the applicant. The court concluded that the decision of the authorities of 9 October 2003 was still in force and that the question of the amount of the compensation was a matter for the public authorities and that it was not within the court’s power to give instructions to them.

The applicant appealed, but on 26 July 2010 the Supreme Administrative Court dismissed her appeal. The court held that the applicant’s request had been for the value of the buildings to be set at what their value had been at the moment when the expert valuation had been carried out in 2007 (see paragraph 17 above). The court also observed that the amendment of the decision of 9 October 2003 to restore the applicant’s property rights had not yet been adopted and it was not clear how the applicant’s rights were being breached. The court also held that the applicant had repeatedly raised the issue of the assessment of the value of the buildings, which had already been resolved. The court upheld the conclusion of the court of first instance that public authorities’ functions did not fall within the jurisdiction of the domestic courts (see paragraph 19 above).

The applicant requested that the proceedings be reopened. On 17 December 2010 the Supreme Administrative Court refused her request.

In October 2007 the relevant authorities were informed that an additional assessment of the value of the buildings had to be made and then the Kaunas Municipality Administration asked the Centre of Registers to urgently assess their value. As no response was received, in February 2008 the Kaunas Municipality Administration again asked the Centre of Registers to assess the value of the buildings. The assessment was made on 17 March 2008 and the value of the buildings was set at LTL 57,000 (approximately EUR 16,508) in total, of which the applicant’s part was LTL 28,500 (approximately EUR 8,254). This valuation was officially approved by the authorities on 5 June 2009, when they amended the annulled part of the decision of 9 October 2003 to restore the applicant’s and her sister’s property rights.

On 16 August 2010 the applicant submitted a request to be compensated in securities of a State-owned enterprise. On 27 January 2011 the applicant was sent a document of acceptance in respect of 11,875 units of securities, the nominal value of each unit being LTL 1 (approximately EUR 0.29). The State Property Fund asked the applicant to sign the document of acceptance and indicated that the nominal value of one security was LTL 1 (approximately EUR 0.29) but that the real value was LTL 2.4 (approximately EUR 0.7). It meant that the real total value of the shares was LTL 28,500 (approximately EUR 8,254), which was the applicant’s part of the compensation (see paragraph 22 above). The transfer of the securities was finalised on 1 February 2011.

On 12 December 2012 the applicant asked the authorities to set the value of the buildings at the value that they had as of January 2011 and to pay her additional compensation. In February 2013 the authorities replied that there were no grounds for re-examining and deciding on questions regarding the restoration of property rights to the applicant because the procedure had already been finalised.

The applicant lodged a claim with the domestic courts, asking, inter alia, that the decision of the authorities of 5 June 2009 by which the annulled part of the decision of 9 October 2003 had been amended (see paragraph 22 above) be quashed. She also requested the annulment of the assessment of value of the buildings at LTL 57,000 (approximately EUR 16,508) made by the Centre of Registers on 17 March 2008. The applicant’s claim had several deficiencies and she was asked several times to eliminate them. However, the applicant failed to do so in an acceptable manner and on 25 October 2010 the Kaunas Regional Administrative Court declined to examine her claim. The court stated that the applicant had asked it to oblige the authorities to provide one of the original copies of the decision of 5 June 2009; however, it observed that the applicant already had an original copy. It was suggested by the court that the applicant contest the order of 5 June 2009, because it was that document which had legal consequences for her. This, according to the information in the Court’s possession, she never did.


CASE OF GÜLER AND UĞUR v. TURKEY [Extracts]

Violation of Article 9 - Freedom of thought conscience and religion (Article 9-1 - Manifest religion or belief);Pecuniary damage - claim dismissed;Non-pecuniary damage - award

András Sajó;Guido Raimondi;Helen Keller;Jon Fridrik Kjølbro;Paul Lemmens;Robert Spano

Mr İhsan Güler and Mr Sinan Uğur were born in 1964 and 1947 respectively and live in Ankara and İzmir respectively.

At the relevant time they were active members and regional leaders of the Party for a Democratic Society (Demokratik Toplum Partisi (DTP)), which was subsequently dissolved by the Constitutional Court. The applicant Mr Güler, former mayor of the district of Başkale (Van), was at the relevant time the chairman of an association called KÜRT-DER (Kürt Demokrasi Kültür ve Dayanışma Derneği – association for Kurdish culture, democracy and solidarity).

On 21 August 2006 the applicants took part in a religious ceremony (mevlût) on the premises of the DTP in Altındağ (Ankara), in which they paid tribute to three members of the PKK who had been killed by the security forces.

The participants read out passages from the Koran and said prayers, and showed a film about the lives of the deceased. The DTP’s regional representative gave a short speech, which can be summarised as follows:

“Our fears and worries continue. People are still being killed. In such a context, we would like this mevlût to be a moment of peace and fraternity.”

On 3 October 2006 the Muş public prosecutor’s office received an anonymous letter of denunciation, together with a CD containing a recording of the ceremony in question. The writer, who said that he had been a participant himself but had subsequently regretted it, explained that the ceremony had been held in memory of “the martyrs of the PKK”.

Following an investigation by the public prosecutor’s office, the applicant Mr Güler was arrested and taken into police custody on 28 December 2006. He was released the next day.

Both applicants were committed to stand trial before the Ankara Assize Court. In their defence they stated that they had taken part in the ceremony for the observance of their religious duties.

In a judgment of 24 September 2008 the Ankara Assize Court, relying on section 7(2) of Law no. 3713 on the prevention of terrorism, sentenced the two applicants to ten months’ imprisonment.

In its judgment, the Assize Court observed, firstly, that the persons in whose memory the ceremony had been held were members of a terrorist organisation and that they had been killed by the security forces during an operation against that organisation. It also took the view that the choice of venue for the ceremony – the premises of a political party –, and the fact that the PKK flag had been spread over the tables and photos of members of the organisation had been displayed, contributed to raising serious doubts as to the actual reasons for the gathering that had been given by the applicants in their defence.

Further to an appeal on points of law by the applicants, their conviction was upheld by a final judgment of the Court of Cassation on 8 March 2010. The applicants were imprisoned for the duration of their sentence.


Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect)

Branko Lubarda;Dmitry Dedov;Georgios A. Serghides;Helen Keller;Helena Jäderblom;Luis López Guerra;Pere Pastor Vilanova

The applicant was born in 1967 and until his arrest lived in Menzelinsk, the Tatarstan Republic.

In 1999 he was convicted and sent to serve his sentence in a correctional colony.

In April 2008 a further set of charges was brought against the applicant. To ensure his participation in the ensuing investigation he was transferred to remand prison no. IZ-16/3 in the Tatarstan Republic (“the remand prison”). On several occasions he was transported to a temporary detention unit at the Naberezhnyye Chelny police station (“the temporary detention unit”).

The applicant was detained in the remand prison during several periods between 7 April 2008 and 7 October 2009. At that time he was placed in cells nos. 306, 320 and 512.

According to the applicant, for most of the period of his detention, 184 days between 7 April 2008 and 11 February 2009, he was detained alone in cell no. 512. The cell was in a poor sanitary condition and was infested with vermin. The toilet pan was not separated from the living area. The cell was poorly lit and the ventilation system did not function. Metal shutters on the windows blocked access to natural light and fresh air. The cell was not equipped with either a television set or a radio, and newspapers were not available. In the remaining period, until 7 October 2009, the applicant occupied cells nos. 306 and 320. The bedding in those cells was torn and dirty. The cells had no television set or refrigerator. The quality of food in the remand prison was poor. Throughout the entire period of his detention the applicant was allowed access to the exercise yard, which was dirty and dusty, for only fifty minutes a day.

During several periods between 23 April 2008 and 21 August 2009, amounting to 207 days in total, the applicant was held in the temporary detention unit. This facility was overpopulated and inmates had no access to outdoor exercise.

In October 2008 the applicant complained of toothache to a prison doctor and received painkillers.

As the applicant’s suffering continued, on 22 January 2009 an investigator asked the head of the remand prison to arrange for him to be examined by a dentist. A similar request was submitted by the head of the medical unit on 10 February 2009.

On 19 May 2009 the custodial authorities transported the applicant to a civilian dentist, who diagnosed chronic pulpitis and periodontitis, and provided some treatment. The dental treatment was not completed. Urgent removal of the applicant’s dental crowns and further treatment with a view to fitting a dental prosthesis were strongly advised. According to the dentist, delay in the treatment could lead to grave complications, such as the loss of the chewing function, osteomyelitis and sepsis.

On 25 May 2009 the applicant was taken to a civilian clinic, where a dentist removed his lower dental bridge and one of the problem teeth. The dentist was unable to complete the treatment as the applicant had to be transported back to the detention facility.

In June 2009 the applicant brought a civil claim against the prison authorities, seeking dental treatment as advised by the doctor treating him and compensation for non-pecuniary damage. The Naberezhnyye Chelny Town Court dismissed the claim on 19 August 2009, having found that the applicant had been provided with adequate medical assistance. On 17 September 2009 the Supreme Court of the Tatarstan Republic upheld the judgment on appeal.

Between 24 December 2009 and 16 March 2010 a civilian dentist removed the dental crowns and bridges from twenty-two of the applicant’s teeth, extracted two teeth, and treated and shaped the remaining teeth for the forthcoming dental restoration work. In a letter to the head of the remand prison dated 30 March 2010, the dentist stressed that it was crucial to ensure that the applicant was transported to the clinic in line with the fixed schedule, starting from 13 April 2010. Failure to do so would entail the necessity to start the treatment anew. The dentist also pointed out that the excessively long time the treatment had taken had already caused substantial suffering to the applicant and increased the risk of digestive problems.

Having not been taken to the dentist as recommended, the applicant submitted several requests for the dental treatment, stating that he had lost the ability to chew and in addition to severe teeth pain he started experiencing stomach pain. On 17 June 2010 the authorities gave their approval for the applicant to be transported to the dentist.

According to written statements of the applicant’s inmate dated 1 July 2010, the applicant had been tormented by unbearable pain and could not sleep normally for several months. Owing to the constant pain and the lack of teeth the applicant had to refuse prison food for several days.

In August 2010 the applicant was taken to a dentist who completed the dental restoration.

The applicant complained that throughout the entire period of his dental treatment, when he had been left practically toothless, no alternative soft food had been made available to him.


Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time)

The applicant was born in 1948 and lives in Kaspiysk, the Dagestan Republic. She worked as chief accountant in the finance department of Kaspiysk Town Council (“the Kaspiysk finance department”) from 29 September 1980 until her dismissal on 25 January 1993.

On 13 May 1993 the applicant challenged the lawfulness of her dismissal. She also requested her reinstatement and salary arrears for the period of her enforced absence from work (вынужденного прогула).

By a final judgment of 21 September 1993 the Sovetskiy District Court of Makhachkala (“the Sovetskiy District Court”) ordered the Ministry of Finance of the Republic of Dagestan to reinstate the applicant in the position she had held in the Kaspiysk finance department on 25 January 1993, and to pay her salary arrears in the amount of 364,708 Russian roubles (RUB), corresponding to the period of her enforced absence from work, that is from 25 January to 21 September 1993. As regards the applicant’s reinstatement, the judgment was subject to immediate enforcement.

On 20 October 1993 the Ministry of Finance issued an order to reinstate the applicant in her previous position. On 1 November 1993 the Kaspiysk finance department issued the relevant order and the applicant returned to work. The salary arrears awarded by the judgment of 21 September 1993 were paid to the applicant in December 1993 or February 1994.

On 7 February 1994 the applicant resigned. She subsequently alleged that she had written her resignation letter under pressure.

On 13 May 1994 the applicant brought a court action against the Kaspiysk finance department complaining of the delay in the execution of the judgment of 21 September 1993. On 10 December 1996 the applicant lodged additional claims.

On 27 December 1996 the Kaspiysk Town Court of the Republic of Dagestan (“the Town Court”) rejected all the claims lodged by the applicant. The Town Court found it established that the judgment of 21 September 1993 had been executed, the applicant had been reinstated to her position and the sum due under that judgment had been paid to her in December 1993.

On 26 February 1997 the Supreme Court of the Republic of Dagestan quashed the judgment of 27 December 1996 and remitted the case for fresh examination. The Supreme Court indicated that the lower court had failed to establish whether the applicant had received the full amount of money due under the judgment of 21 September 1993 and whether she had the right to indexation.

The applicant amended her claims on 21 May, 25 June, 14 November and 17 November 1997. She indicated that she had received the sum of RUB 317,734 under the judgment of 21 September 1993, but complained that the Sovetskiy District Court had miscalculated her salary arrears because it had not taken the indexation into account. She also asked for salary arrears from 21 September 1993 to 7 February 1994 and for the period in which delivery of her work record had been delayed.

On 28 November 1997 the Town Court allowed the applicant’s claim in part. In particular, it stated as follows:

“[T]he court has established that in accordance with the judgment of the Sovetskiy District Court of Machachkala, Palacheva P.G. received in December 1993, together with her salary and holiday pay, RUB 364,708 minus RUB 43,327 of income tax and 1% deduction for pension fund in the amount of RUB 3,647 = RUB 317,734. This is confirmed by the payment record for December 1993 and Mrs. Palacheva’s signature on this payment record certifying that this amount was paid to her. The claimant herself did not deny this fact before the court.”

As regards the alleged miscalculation of the sum awarded by the Sovetskiy District Court, the Town Court noted that the judgment had become final and that the calculation made by the District Court had been based on the calculations submitted by the applicant herself. As regards the delay in her reinstatement, the Town Court awarded the applicant salary arrears for the delay, together with indexation. The applicant appealed.

On 18 February 1998 the Supreme Court of the Republic of Dagestan upheld the Town Court’s judgment in substance, but reduced the global amount due to the applicant. It was explained to the applicant that the claim concerning indexation of the sum awarded by the judgment of 21 September 1993 should have been lodged with the Sovetskiy District Court which had delivered that judgment.

On 20 August 1998 the judge of the Sovetskiy District Court rejected the applicant’s claim concerning the payment of salary arrears and indexation, and invited her to lodge the claim with the Kaspiysk Town Court, which had jurisdiction in view of the defendant’s address.

On 1 December 1998 the Sovetskiy District Court extended the timelimit for lodging an appeal against the decision of 20 August 1998 with the Supreme Court of the Republic of Dagestan.

On 17 February 1999 the Supreme Court of the Republic of Dagestan quashed the decision of 20 August 1998.

On 4 August 1999 the Sovetskiy District Court rejected the applicant’s claim concerning the payment of salary arrears for her enforced absence from work on the ground that it lacked jurisdiction, given that the defendant had moved and was now located within the jurisdiction of the Leninskiy District Court of Makhachkala (“the Leninskiy District Court”).

On 11 May 1999 the Vice-President of the Supreme Court of the Russian Federation lodged a supervisory-review appeal with the Presidium of the Supreme Court of the Republic of Dagestan asking for the quashing of the judgments of 28 November 1997 and 18 February 1998. The VicePresident pointed out that the same shortcomings had already been identified by the Supreme Court of Dagestan in its decision of 26 February 1997. However, the Town Court, when considering the case for the second time, had failed to remedy them.

On 24 June 1999 the Supreme Court of the Republic of Dagestan, by way of supervisory review, quashed the judicial decisions of 28 November 1997 and 18 February 1998 and remitted the case to the Town Court for fresh consideration. The Supreme Court also noted that its previous instructions had been ignored by the Town Court.

On 10 August 1999 the Town Court forwarded the case to the Leninskiy District Court, which had jurisdiction to examine the applicant’s case in view of the defendant’s new address.

On 1 September 1999 the Leninskiy District Court rejected the applicant’s claim for salary arrears corresponding to the period of her enforced absence on the ground that this dispute had already been decided by a final judgment. The District Court also noted that there was another case pending concerning similar claims after the quashing on 24 June 1999 by the Supreme Court of the Republic of Dagestan of the Town Court’s judgment of 28 November 1997.

On 6 October 1999 the Supreme Court quashed the Leninskiy District Court’s judgment of 1 September 1999. The Supreme Court indicated that if the applicant disagreed with the judgment of 21 September 1993, she could only lodge an application for a supervisory review of that judgment; her other claims, including that in respect of the non-enforcement of the aforementioned judgment, were to be considered in the course of the proceedings pending before the Town Court. Consequently, the Supreme Court discontinued the proceedings pending before the Leninskiy District Court.

On 4 November 1999, following the request of its President, the Supreme Court of the Republic of Dagestan quashed the Town Court’s order of 10 August 1999 by way of supervisory review (see paragraph 22 above) on the ground that a domestic court which had accepted its jurisdiction in accordance with the rules of jurisdiction existing at the material time should decide the case on the merits, even if those rules had subsequently changed. The case was thus remitted to the Town Court for consideration on the merits.

On 17 January 2000 the applicant amended her requests for the indexation of all the amounts claimed. On 12 May 2000 she again amended her claim. Further amendments were submitted by the applicant on 14, 22, 29 and 30 June 2000. As regards the judgment of 21 September 1993, the applicant claimed that the salary arrears due under that judgment had not been paid to her until 3 February 1994, and had been paid without indexation, and that not all the sums had been taken into account in the calculation of the amount due to her.

On 30 June 2000 the Town Court found for the applicant and awarded her different sums together with indexation, compensation for nonpecuniary damage, costs and expenses. As regards the judgment of 21 September 1993, the court noted that the payment of salary arrears had been executed with a delay of five months.

As the defendant had missed the deadline for appealing, it was extended on 23 October 2000 and the defendant appealed.

On 1 December 2000 the Supreme Court of the Republic of Dagestan rejected a number of the applicant’s claims, reduced the amount awarded in respect of non-pecuniary damage, quashed the Town Court’s judgment and sent the case back for re-consideration.

On 19 April 2002 the applicant again amended her claims. She appears to have submitted the same claims as those rejected by the Supreme Court on 1 December 2000. The applicant notably claimed that the judgment of 21 September 1993 had still not been enforced as regards the payment of salary arrears for her enforced absence from work from 21 September to 1 November 1993.

On 16 May 2002 the Town Court decided to discontinue the proceedings in respect of the claims previously rejected by the Supreme Court of the Republic of Dagestan.

In a second decision adopted on the same day, the Town Court allowed the applicant’s claim in part. It refused her claim for salary arrears corresponding to the delay in execution of the judgment of 21 September 1993 on the ground that that sum had been sent to her in February 1994 but she had refused to collect it. The applicant appealed.

On 10 July 2002 the Supreme Court of the Republic of Dagestan allowed the applicant’s appeal. It quashed the Town Court’s judgment on the basis of the same shortcomings as those previously indicated by it. Noting that the proceedings had been pending since 1993, the Supreme Court decided, with the agreement of both parties, to examine the case as a first-instance court. The Supreme Court rejected the part of the applicant’s appeal concerning her claims decided by the decision of 1 December 2000.

On 5 January 2003 the Supreme Court of the Republic of Dagestan, noting that the defendant had not agreed to the modification of jurisdiction in favour of the Supreme Court, decided to forward the case to the Town Court for consideration as the first-instance court. The applicant appealed.

On 13 March 2003 the Supreme Court of the Russian Federation quashed the decision of 5 January 2003 by the Supreme Court of the Republic of Dagestan on the grounds of a procedural irregularity (absence of parties at the hearing) and remitted the case to the Supreme Court of the Republic of Dagestan for consideration anew.

On 28 April 2003 the Supreme Court of the Republic of Dagestan, after hearing the parties and following a request lodged by the defendant’s representative, decided to forward the case to the Town Court for consideration as the first-instance court. The applicant appealed.

On 7 July 2003 the Supreme Court of the Russian Federation upheld the decision of the Supreme Court of the Republic of Dagestan of 28 April 2003 to remit the case to the Town Court.

On 16 October 2003 the applicant further amended her claims.

On 30 October 2003 the Town Court decided to forward the case to the Leninskiy District Court. The applicant appealed.

On 18 December 2003 the Supreme Court of the Republic of Dagestan quashed the Town Court’s judgment of 30 October 2003 by way of supervisory review and remitted the matter to the same court for consideration anew. The reasons for the decision were the same than those indicated in the judgment of 4 November 1999 (see paragraph 25 above).

On 9 February 2004 the applicant amended her claim.

On 10 February 2004 the Town Court allowed the applicant’s claim in part and awarded her certain financial compensation for salary arrears, legal costs and non-pecuniary damage. Both the applicant and the defendant appealed.

On 30 April 2004 the Supreme Court of the Republic of Dagestan quashed the Town Court’s judgment and remitted the case for consideration anew. The Supreme Court noted that it appeared from the materials of the case file that the salary arrears awarded by the decision of 21 September 1993 had been paid to the applicant in February 1994.

On 22 June 2004 the proceedings were suspended because the applicant was ill. They were resumed on 23 September 2004.

On 1 November 2004 the Town Court discontinued the proceedings because the applicant failed to appear in court. It appears that this order became final.


Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect)

The applicant was born in 1977 and lives in Kranj.

He was detained in the remand section of Ljubljana prison from 26 May 2010 to 6 November 2012.

For one day he was held in cell no. 89 measuring 16.63 square metres (not including a separate 1.68 square metre sanitary facility) with four other inmates, with 3.33 square metres of personal space.

For seven hundred and eighty-three days he was held in cell no. 82 measuring 16.37 square metres (not including a separate 1.82 square metre sanitary facility). For three hundred and eighty-two days he was held therein with four other inmates with 3.27 square metres of personal space and for one hundred days he was held therein with five other inmates with 2.73 square metres of personal space. For three hundred and one days he shared the cell with two or three other inmates with more than 4 square metres of personal space.

For one hundred and eleven days he was held in cell no. 88 measuring 16.37 square metres (not including a separate 1.82 square metre sanitary facility). For thirty-six days he was held therein with four other inmates with 3.07 square metres of personal space and for fifty-eight days he was held therein with three other inmates with 3.84 square metres of personal space. For seventeen days he shared the cell with two other inmates with more than 4 square metres of personal space.

The cells for six detainees, where the applicant was held, were equipped with three bunk beds with a total of six sleeping places, one large and one small table, six chairs and a set of cupboards for each of the detainees. Detainees could freely open or close windows in cells. On 14 November 2011 the sixth bed was removed.

As regards the general characteristics of the cells in the remand section of Ljubljana prison, material conditions inside the cells and sanitary conditions, see the judgment in Mandić and Jović v. Slovenia, nos. 5774/10 and 5985/10, §§ 10 to 23, 20 October 2011.

As to the out-of-cell time in the remand section, the Court found in the aforementioned judgment that detainees in the remand section were confined to their cells day and night, save for two hours of daily outdoor exercise, and an additional two hours per week in a recreation room (see Mandić and Jović, cited above, § 78). According to the information supplied by the Government in the present case, on 9 February 2011 the time spent outdoors was extended to two hours and a half per day and in November 2011 the outside yard was covered by a roof. From 2 July 2012 detainees could spend five hours per day out of their cells.

As regards the cell temperature, the data provided by the Government showed that the average temperature in the cells in the late afternoon (5- 5.30 p.m.) in July and August 2010 had been approximately 27.5oC, exceeding 30oC on eight days, in July and August 2011 approximately 27oC, exceeding 30oC on ten days and in July and August 2012 it had been approximately 28.6oC, exceeding 30oC on eleven days.