Violation of Article 3 - Prohibition of torture (Article 3 - Torture) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention)

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

The applicant was born in 1981 and lived in Yoshkar-Ola before his conviction.

On 29 August 2007 A.K., who had left home the previous day intending to sell his car, was reported missing. On the same day his car was found on the outskirts of Yoshkar-Ola. The investigative committee at the YoshkarOla town prosecutor’s office opened criminal proceedings in respect of A.K.’s alleged murder. The criminal investigation department of the Ministry of Interior of the Republic of Mariy El carried out operational and search activities aimed at establishing A.K.’s whereabouts and the circumstances of his disappearance.

According to a record drawn up by investigator A., on 7 September 2007 A.K.’s body was found and the place of its location examined.

At 8.55 p.m. investigator G. drew up a record of the applicant’s arrest as a suspect in the murder case, indicating that the applicant had been arrested at 8.55 p.m. that day.

From 9.15 p.m. to 9.35 p.m. investigator A. examined the applicant as a suspect in the presence of V.K., a lawyer provided by the State at the applicant’s request. The applicant refused to give statements, relying on Article 51 of the Constitution (privilege against selfincrimination).

According to operative police officers (оперуполномоченные), D.K., O. and S., they received information concerning the applicant’s involvement in A.K.’s murder. At about 5 or 6 p.m. on 7 September 2007 they came to the applicant’s home and invited him to answer some questions; they took him with his consent to their office at the YoshkarOla Central police station; during his interview the applicant told them that he had murdered A.K. by strangling him in order to steal A.K.’s car and that he could show them where A.K.’s body had been hidden.

At about 6 p.m. or 7 p.m. D.K., O. and S. took the applicant to a place on the outskirts of Yoshkar-Ola where he pointed out the location of A.K.’s body. They called investigator A., who arrived with other members of the investigative team, carried out an examination of the place and seized the body.

The applicant provided a different version of his arrest and the events which followed. According to him, at 3 p.m., when he and his girlfriend were buying something at a kiosk in the street, three men in plain clothes approached him, pushed him to the tarmac, handcuffed him and put him in an unmarked car without any explanation. A plastic bag was put over his head, making it difficult for him to breathe, and he was taken to a forest, where the three men subjected him to ill-treatment, demanding that he accept their conditions and do as he was told. He was punched (in particular on the forehead), kicked (after he had fallen to the ground), and administered electric shocks through wires attached to the thumbs. He agreed to cooperate and was taken to investigator G at the YoshkarOla Central police station.

During the criminal proceedings against him the applicant asserted that he had never shown the whereabouts of A.K.’s body to the investigating authorities; rather, it was his co-accused R.K. who had shown them the body (see paragraph 37 below).

At 10.45 p.m. the applicant was placed in a temporary detention facility (“the IVS”) at the Ministry of Interior of Mariy El. An officer on duty recorded the following injuries on him: a swelling and a haematoma on the left side of the forehead; haematomas on the right side of the chest, on the right shoulder and right shoulder blade; and abrasions on the back in the region of the waist.

At 2.35 p.m. on 8 September 2007 the applicant was taken from the IVS to investigator G. to take part in two confrontations, which were carried out between 3.30 p.m. and 5.25 p.m. The applicant, who was represented by lawyer V.K., again refused to give statements.

According to the IVS’s records, the applicant was brought back to the IVS at 3.20 a.m.

In a “statement of surrender and confession” (явка с повинной) drawn up by investigator G. at 7 p.m. in the absence of a lawyer, the applicant confessed to participating in a conspiracy to murder A.K. and to stealing A.K.’s car. The applicant stated that A.K. had been strangled by his partners in crime, R.K. and M.Ts.

According to investigator G., that day the applicant remained in his office until he was taken back to the IVS.

According to the applicant, investigator G. demanded that he confess to the crimes. The applicant refused, and after 9 p.m., G. telephoned someone and three men took the applicant out of the town by car. They beat him up, strangled him, threatened him with a revolver, tied him up with a car tow rope, threw him into a pit dug by one of them and threatened to bury him alive, demanding that he confess to the murder. After being taken back to the IVS, the applicant signed a statement of surrender and confession, as requested by the investigator.

During the criminal proceedings against him the applicant stated that he had never signed the statement of surrender and confession, and that his signature on the record had been forged by the investigator. On 16 July 2008 a criminal complaint lodged by the applicant on 1 February 2008 against the investigator was dismissed after a handwriting expert was unable to determine whether his signature had been forged.

At 8.20 a.m. on 9 September 2007 the applicant was taken to investigator G., charged with murder and robbery, and questioned as an accused in the presence of lawyer V.K. According to the record of his questioning, he stated that he had given the statement of surrender and confession the previous day voluntarily, without any pressure from police officers. He reiterated his self-incriminating statements.

During the criminal proceedings against him the applicant claimed that he had never signed the record of his questioning as an accused, and that his signature on the record had been forged by an investigator. A handwriting expert, whose opinion was sought by an investigator, concluded that a handwritten note in which the applicant fully acknowledged his guilt of A.K.’s murder had been written by the applicant, but that it was impossible to determine whether he had also signed that record. On 16 July 2008 the applicant’s criminal complaint against the investigator (see paragraph 20 above) was dismissed.

On the same day the Yoshkar-Ola Town Court, at a hearing held in the presence of the applicant and his lawyer, V.K., investigator G. and a prosecutor, ordered that the applicant be detained on remand.

At 5.30 p.m. he was placed in pretrial detention facility IZ-12/1. Upon his admission he was examined by a medical assistant, who recorded the following injuries on him: an 8-cm-long bruise on the front side of the neck, a bruise 2 cm in diameter on the right side of the chest, and a 3cmlong abrasion at the level of the first lumbar vertebra.

On 17 October 2007 the applicant lodged a complaint with the Prosecutor’s Office of the Republic of Mariy El, requesting that investigator G. and the police officers responsible for his ill-treatment (see paragraphs 12 and 19 above) be prosecuted. An inquiry into his allegations was carried out under Article 144 of the Code of Criminal Procedure (“CCrP”) by the investigative committee of the Mariy El prosecutor’s office.

The pit into which the applicant had allegedly been thrown on 8 September 2007 with the threat that he would be buried alive was located in a forest at a place pointed out by the applicant. Statements were taken from investigators and police officers. Investigator G. and operative police officers D.K., O. and S. denied having ill-treated the applicant.

On 18 December 2007 an investigator ordered a forensic expert medical report concerning the applicant’s injuries, as recorded in pretrial detention facility IZ-12/1 (see paragraph 24 above). In a report dated 19 December 2007 the forensic medical expert concluded that the injuries could have been caused by hard blunt objects. They had not resulted in a health disorder of sufficiently long a duration for it to be categorised as health damage. The information contained in the medical records made available to the expert did not make it possible to establish the time at which the injuries had been inflicted.

Investigators refused five times (on 2 and 19 November and 13 December 2007, and 7 April and 29 June 2008) to open criminal proceedings in respect of the applicant’s allegations for lack of the event of a crime (отсутствие события преступления). Each time their decision was annulled as unlawful and unfounded by their superior at the Mariy El prosecutor’s office and an additional inquiry ordered. The annulment of the investigators’ refusals of 13 December 2007, 7 April 2008 and 29 June 2008 followed the YoshkarOla Town Court’s findings of 3 March, 29 May and 31 July 2008 respectively that those refusals had been unlawful and lacking reasoning.

The Town Court’s decision of 31 July 2008 was initially set aside after an appeal by the prosecutor before the Mariy El Supreme Court on 22 September 2008 for the reasons that on 15 August 2008 the criminal case against the applicant had been transferred for trial to the Mariy El Supreme Court, that those proceedings were pending, and that it was open for the applicant to raise in the course of his trial complaints concerning his illtreatment. In supervisory review proceedings on 22 October 2010 the Presidium of the Mariy El Supreme Court quashed the decision of 22 September 2008. It found that the decision had been based on an erroneous interpretation of criminal procedural law and had failed to take into account Article 46 of the Russian Constitution, which guaranteed access to court in respect of complaints against decisions of State authorities. It noted that the Constitutional Court had explained that it was possible under Article 125 of the CCrP to appeal against decisions made by (as well as actions undertaken by or inaction on the part of) investigating authorities at the pre-trial stage of proceedings, regardless of whether issues addressed in those decisions were connected to circumstances concerning other pending or completed criminal proceedings. The Presidium referred to the Constitutional Court’s decisions no. 369-O of 18 November 2004, 156O of 25 March 2004, 500-O of 20 December 2005, 576-O-P of 19 May 2009, 1107-O-O of 13 October 2009 and 79-O of 16 March 2006. The Mariy El Supreme Court stressed that in the course of a trial the task of a court was to examine the admissibility of evidence and other questions relevant to the merits of the case; such questions were factually and legally different from those examined in a review under Article 125 of the CCrP. On 22 November 2010, following supervisory review and appeal proceedings, the Town Court’s decision of 31 July 2008 entered into force.

The most recent decision of the investigative committee of the Mariy El prosecutor’s office was taken on 9 March 2011. An investigator again refused to institute criminal proceedings against investigator G. and police officers D.K., O., S. and Z. for lack of the event of a crime under Article 24 § 1 (1) of the CCrP. Relying on the statements of the applicant’s coaccused, R.K., the investigator concluded that the injuries found on the applicant upon his admission to the IVS could have been inflicted by A.K. on 28 August 2007. R.K. stated that shortly before A.K.’s murder the applicant and A.K. had had a fight in a car and that he had seen them delivering several blows to each other. R.K. was unable to say where A.K. had hit the applicant. As regards the bruise on the applicant’s neck recorded upon his admission to the SIZO on 9 September 2007, the investigator noted that its cause had not been established and concluded that it could have been self-inflicted.

On 7 October 2011 the Yoshkar-Ola Town Court dismissed an appeal by the applicant against the investigator’s decision of 9 March 2011. It found that the investigator had carried out a comprehensive inquiry, having exhausted all possibilities for collecting evidence, and that his decision had been lawful and well-reasoned.

On 5 December 2011 the Mariy El Supreme Court dismissed an appeal by the applicant against the Town Court’s decision. It stated that in a review of an investigator’s decision not to initiate criminal proceedings under Article 125 of the CCrP a court’s task was to check whether the procedure for the examination of a complaint regarding the commission of a crime had been observed. The Mariy El Supreme Court noted that the Town Court had examined the material gathered during the course of the inquiry and established that the applicant’s arguments had been examined by the investigator. It fully endorsed the Town Court’s findings that the inquiry had been thorough and the investigator’s decision of 9 March 2011 lawful and reasoned.

On 12 December 2011 first deputy prosecutor of the Republic of Mariy El annulled the investigator’s decision of 9 March 2011 as unlawful, lacking reasoning and proper assessment of evidence, and based on an inquiry which had not been thorough and had not exhausted all possibilities for collecting evidence. In particular, the applicant’s allegations of illtreatment had not been refuted; the circumstances in which he had received the injuries had not been established; the existence of the pit at the place of the applicant’s alleged ill-treatment had not been assessed; the allegations of electric shocks had not been verified; and the forensic medical expert had not been given all the necessary information (including the applicant’s version of the cause of the injuries). Consequently, the forensic expert (see paragraph 27 above) had not made a full assessment, in particular of the injuries recorded upon the applicant’s admission to the IVS. The prosecutor further noted that (i) the IVS records, which recorded at what times in the period from 7 until 9 September 2007 the applicant had been taken from the detention facility for the purpose of carrying out investigative actions and when he had been brought back, had not been assessed, and (ii) the documents indicating the grounds for the applicant’s absence from the detention facility were missing. It was necessary, inter alia, to establish the applicant’s location and a detailed chronology of the events in which had had participated in the period from 7 until 9 September 2007, taking into account the fact that he had actually been arrested at 3 p.m. on 7 September 2007, as established at the applicant’s trial. The prosecutor ordered that the investigative committee of the Mariy El prosecutor’s office carry out an additional inquiry.

The applicant’s case was heard by the Mariy El Supreme Court. On 20 August 2008 it ordered that a preliminary hearing be held in order to examine the applicant’s request for the exclusion of some evidence as inadmissible. On 28 August 2008 the applicant withdrew his request. On 1 September 2008 the Mariy El Supreme Court – after hearing the applicant and his legal counsel, who confirmed the withdrawal of the request – ruled that the request should not therefore be examined. According to the trial records of 23 October 2008, in the course of the trial the applicant lodged a new request for the exclusion of some evidence as inadmissible, which he again withdrew.

As regards the applicant’s allegations of ill-treatment, the firstinstance court (“the trial court”) examined witnesses and other evidence collected in the course of the inquiry carried out by the investigative committee of the Mariy El prosecutor’s office. In particular, it heard investigators A. and G. and police officers O. and S., who denied having ill-treated the applicant. A., O. and S. stated that the applicant had pointed out the location of A.K.’s body. The trial court found it impossible to establish the circumstances in which the applicant had received the injuries. It noted that it could examine allegations of unlawful investigative methods as long as the admissibility of evidence was at issue, and that this was not the case because no evidence whose admissibility would have been prejudiced by the discovery of the applicant’s injuries had been examined by it. It stressed that the circumstances in which the applicant’s injuries had been inflicted could be established by the relevant law enforcement authorities by means of an inquiry.

In respect of an attack on A.K. in his car shortly before his murder, R.K. stated that he had seen the applicant punching A.K. to the head and body and A.K. trying to defend himself. In respect of the same episode another of the applicant’s co-accused, M.Ts., who had also been in the car, stated that he had seen the applicant beating A.K. and A.K. covering himself from the blows.

The applicant pleaded not guilty. When asked whether he had been taken to the place where A.K.’s body had been found, he answered that he had been taken by car to an unknown place, where he had seen R.K. talking to police officers. R.K. had been covered in mud. The applicant had been told by a driver that R.K. had dug out A.K.’s body with his bare hands. The applicant further stated that he had not written the statement of surrender and confession.

In its judgment of 5 November 2008 the Mariy El Supreme Court established that the applicant had murdered A.K. by strangling and had stolen his car. It found the applicant guilty of murder and robbery and sentenced him to sixteen years’ imprisonment. The finding of the applicant’s guilt was based, inter alia, on statements made by R.K. and M.Ts. (his accomplices in the robbery and eyewitnesses to the murder). In deciding on the punishment for the robbery the Mariy El Supreme Court held that the applicant had played an active role in solving the crime by pointing out the location of A.K.’s body, and that this constituted a mitigating circumstance. The applicant’s coaccused, R.K. and Ts., were convicted of aggravated robbery and sentenced to three and a half and three years’ imprisonment respectively; in M.Ts.’s case the sentence was suspended.

The applicant lodged an appeal with the Russian Supreme Court against the judgment, complaining, inter alia, that the Mariy El Supreme Court should not have examined as evidence the witness statements made by A., O. and S. He further complained that his sentence in respect of the murder had been unfair because, in contrast with the decision on the punishment for the robbery, his disclosure of the whereabouts of A.K.’s body had not been taken into account as a mitigating circumstance.

On 5 February 2009 the Russian Supreme Court dismissed the applicant’s appeal and upheld the judgment of the Mariy El Supreme Court. It stated that in view of the disputed origin of the applicant’s injuries the trial court had rightly not used evidence adduced at the time of the applicant’s alleged ill-treatment. It agreed with the applicant that the record of his arrest had been drawn up more than three hours after his actual arrest at 3 p.m. on 7 September 2007, in breach of Article 92 § 1 of the Code of Criminal Procedure. It further noted that the trial court had rectified that violation by including the time spent by the applicant in pre-trial detention in the sentence to be served.


Violation of Article 6 - Right to a fair trial (Article 6 - Administrative proceedings;Article 6-1 - Impartial tribunal;Independent tribunal)

Jon Fridrik Kjølbro;Julia Laffranque;Stéphanie Mourou-Vikström

The applicant was born in 1966 and lives in Diyarbakır.

The applicant was an officer in the Army. On 1 August 1989, relying on classified investigation reports, the applicant’s contract was terminated and he was dismissed from his office. At the time, he did not have access to the classified reports and there was no remedy against this decision. Subsequently, following the adoption of a new law in 2011, the applicant once again applied to the Ministry of Defence on 7 April 2011, and asked for reinstatement. His request was rejected.

On 4 August 2011 the applicant initiated proceedings before the Supreme Military Administrative Court to have the annulment of the decision of the Ministry of Defence. During the proceedings, the defendant party submitted classified documents for the court’s consideration. On 24 April 2012 the Supreme Military Administrative Court rejected the applicant’s case. This decision was served on the applicant on 15 May 2012.


CASE OF R.B.A.B. AND OTHERS v. THE NETHERLANDS

No violation of Article 3 - Prohibition of torture (Article 3 - Expulsion) (Conditional) (Sudan)

Alena Poláčková;Branko Lubarda;Georgios A. Serghides;Helena Jäderblom;Johannes Silvis;Luis López Guerra;Pere Pastor Vilanova

The applicants are a married couple, Mrs R.B.A.B. and Mr H.S., their two daughters, X and Y, and their son Z. The children were born in 1991, 1993 and 1996, respectively. The applicants have been in the Netherlands since 2001.

On 28 April 2001 the applicants entered the Netherlands, where the first and second applicants filed separate asylum applications, and Mrs R.B.A.B. also filed applications on behalf of the other three applicants (the children, who were all minors). The immigration authorities conducted interviews with the first and second applicants on 8 May 2001 (eerste gehoor) and 9 August 2001 (nader gehoor). An additional interview (aanvullend gehoor) was conducted with the second applicant on 2 November 2001.

The first and second applicants stated that they had previously lived in Dilling in Sudan’s South Kordofan province and that they had fled Sudan after Mr H.S. had attracted the attention of the Sudanese authorities on account of his activities for the opposition movement M.

On 7 December 2001 the Deputy Minister of Justice (Staatssecretaris van Justitie, the “Deputy Minister”) notified the first and second applicants of her intention (voornemen) to reject their asylum requests. In the light of various contradictions in the statements given by the first and second applicants, their inability to answer basic questions about the respective tribes they claimed to belong to, and the second applicant’s inability to provide simple topographic details of the city and the surroundings of the place where he claimed he had grown up and/or to provide any details about the M. opposition movement (goal, members, structure, leader) for which he claimed to have been active, the Deputy Minister concluded that no credence could be attached to the applicants’ asylum statement.

In two separate decisions of 17 January 2002, after the applicants’ lawyer had filed written comments (zienswijze) concerning the intended refusals, the Deputy Minister rejected the first and second applicants’ asylum requests, finding that the written comments had not dispelled her doubts concerning the credibility of their asylum statement.

The first and second applicants’ appeal against this decision were declared inadmissible on procedural grounds by the Regional Court (rechtbank) of The Hague sitting in Zwolle in a joint ruling, the first and second applicants having failed to submit the requisite grounds for their appeals, even though they had been given extra time to remedy this shortcoming. The applicants’ objection (verzet) was dismissed on 10 September 2002 by the Regional Court. No further appeal lies against this ruling.

On 12 April 2003 the first and second applicants – and Mrs R.B.A.B. also on behalf of the other applicants – filed a second asylum request, which was based on essentially the same grounds as their initial request. They submitted various documents in support of their declaration. On 13 April 2003, the Minister for Immigration and Integration (Minister voor Vreemdelingenzaken en Integratie) notified the first and second applicants of her intention to reject their fresh asylum request, holding that their repeat requests were not based on newly emerged facts or altered circumstances as required by section 4:6 of the General Administrative Law Act (Algemene Wet Bestuursrecht). The new documents submitted by the first and second applicants only served to increase the already existing doubts as to the credibility of their asylum statement. In two separate decisions of 14 April 2003, having received the applicants’ written comments on the intended decision, the Minister rejected the applicants’ second asylum request on the grounds given in his notice of intention. The first and second applicants did not lodge an appeal against this decision before the Regional Court of The Hague even though it would have been possible to do so.

On 14 June 2005 the first and second applicants, and Mrs R.B.A.B. also on behalf of the other applicants, filed a third asylum request based on the claim that, if they were to be sent back to Sudan, their daughters X and Y would be subjected to female genital mutilation (“FGM”), contrary to Article 3 of the Convention, due to tribal and social pressure. In interviews with the immigration authorities held on 16 June 2005, the first and second applicants stated that they opposed FGM but would be unable to protect their daughters against it. They further submitted a document issued by the Sudanese Embassy in the Netherlands on 26 April 2005 stating that the applicants “are all Sudanese citizens although they do not possess the requisite documents to enable them to obtain a Sudanese laissez-passer”.

On 17 June 2005, the Minister for Immigration and Integration notified the first and second applicants separately of her intention to reject their third asylum request. The Minister doubted the sincerity of the applicants’ purported fear that their daughter would be subjected to FGM because they had not raised this argument in their previous asylum requests. The Minister also took into consideration the order amending the Aliens Act 2000 Implementation Guidelines 2004/36 (Wijzigingsbesluit Vreemdelingencirculaire 2000, “WBV 2004/36”), which was based on an official report on Sudan drawn up by the Ministry of Foreign Affairs (Ministerie van Buitenlandse Zaken) on 3 February 2004 (DPV/AM823666), according to which women who had had the benefit of a higher education (namely a university or higher professional level education) and who were living in the larger cities in Sudan did not experience any social stigma for not subjecting their daughters to FGM, whereas women in the rural areas who had received little or no schooling had little choice but to subject their daughters to this practice. As the first and second applicants had still not substantiated their personal identities or given a credible statement concerning their place of residence in Sudan, the Minister considered that they had not established that they did not belong to the group of more highly educated people able to reject the practice of female circumcision. The Minister also considered that the second applicant constituted a danger to public order, having accepted a negotiated penalty (transactieaanbod) in order to settle out of court a criminal charge for shoplifting.

On 20 June 2005 the applicants filed their written comments concerning the intended refusal of their third asylum request. They argued that the Minister had failed to present a proper reasoning for her finding that it had not been demonstrated that the first applicant did not belong to the group of highly educated women who would be able to resist the social pressure to circumcise their daughters, especially as the first applicant had stated in her first request for asylum that she had only had a primary school level education. The first applicant therefore offered to take an IQ test to prove her level of education.

In two separate decisions of 20 June 2005 the Minister rejected the first and second applicants’ asylum request on the grounds detailed in her notice of intention. The Minister added that it was not for her to examine the first applicant’s level of education through an IQ test but rather for the applicants to prove their identities and background in their asylum application.

In a joint ruling given on 12 June 2005 the provisional-measures judge (voorzieningenrechter) of the Regional Court of The Hague sitting in Zwolle granted the first and second applicants’ appeals, quashed the impugned decisions and remitted the case to the Minister for a fresh decision. The provisional-measures judge held:

“The judge notes that it is no longer in dispute that the petitioners are Sudanese nationals. Nor is it in dispute that both daughters of the petitioners, currently 14 and 11 years old, have not been circumcised.

According to the policy guidelines set out in C1/4.3.3 Vc 2000, a girl can – if return would entail a real risk of genital mutilation – qualify for an asylum-based residence permit ... The following conditions apply:

there exists a risk of genital mutilation;

the authorities of the country of origin are unwilling or unable to provide protection to persons exposed to an imminent risk of genital mutilation; and

no internal relocation possibility is deemed to exist in the country of origin.

According to chapter A8 Vc 2000 “Country-specific part, the asylum policy in respect of Sudan” under 5.5 Vc, genital mutilation is widespread in Sudan. Although there is a Health Act forbidding genital mutilation, the Sudanese authorities hardly ensure compliance with that act. The parental freedom of choice (as the court understands, whether or not to have their daughters circumcised) is connected to the cultural attitudes of the family and surroundings. Women with a higher education in larger towns will generally not have their daughters circumcised. This will generally not give rise to problems from their social environment. The term ‘women with a higher education’ is to be understood to mean women who have had an academic or higher vocational education. According to the official report of 3 February 2004, women with a low level of education living in rural areas have little choice. According to the same chapter it cannot be deduced from the official report whether it is possible to avoid circumcision by settling elsewhere in Sudan, meaning that for the assessment of the question whether there is an internal relocation alternative, each individual’s declaration is of decisive importance.

The defendant’s refusal to grant the requested residence permit is based to a large extent on the fact that the identity and origin of, in particular, [the first applicant] has not been demonstrated, but also because in the proceedings concerning the first asylum request, it was found that statements lacking credence had been given. For that reason, it is not possible to assess whether the conditions set out in the policy guidelines are met.

The refusal thus reasoned cannot be upheld.

The policy guidelines are aimed at protecting girls and women against circumcision, an act which according to the policy is to be seen as a violation of Article 3 [of the Convention]. ...

The assertion that [the first applicant] based her first asylum request on an asylum statement subsequently found to be implausible is correct. However, it is unclear what the relevance of that conclusion is in the context of the present [asylum] application, which is concerned with the protection of the daughters and not of [the parents].”

On 19 July 2005 the Minister filed a further appeal against this judgment with the Administrative Jurisdiction Division (Afdeling bestuursrechtspraak) of the Council of State.

On 25 August 2005, the Administrative Jurisdiction Division granted the Minister’s further appeal, quashed the judgment of the Regional Court and rejected the first and second applicants’ appeal against the Minister’s decision of 20 June 2005. It considered that, pursuant to section 31 § 1 of the Aliens Act 2000 (Vreemdelingenwet 2000), it was for the applicants to demonstrate as plausible those facts and circumstances which could lead to the conclusion that they were eligible for admission pursuant to the policy in force, and not for the Minister to demonstrate the opposite. As not only the applicants’ statements about their identity and origin but also their asylum statement had been found to lack credibility in a decision of 17 January 2002 which had obtained the force of res iudicata, the Minister could reasonably have found that the applicants had not made out a persuasive case to show that they complied with the conditions for admission under the policy concerned, that the authorities could not provide them with protection, and that there was no internal relocation alternative for them. No further appeal lay against this ruling.

The third applicant, Ms X., gave birth to a daughter on 11 June 2011 and to a son on 15 March 2013. On 1 September 2015 Ms X. was granted a Netherlands residence permit for the purpose of remaining with her partner. On 15 September 2015 she informed the Court that she did not wish to maintain the application in so far as it concerned her.

In the meantime, on 7 November 2012, the Minister for Immigration, Integration and Asylum Policy (Minister voor Vreemdelingenzaken en Integratie) rejected a request for a residence permit filed by the fourth applicant, Ms Y., who had come of age in the meantime. On the same day Ms Y. filed an objection (bezwaar) against this refusal and, on 30 November 2015, she attended a hearing on that objection before an official commission during which she stated that in 2012, as a volunteer for two non-governmental organisations, she had disseminated information about FGM, for which purpose she had attended a training course.

On 29 December 2015 the Minister rejected the fourth applicant’s objection. In so far as the fourth applicant would allegedly be exposed to the risk of being subjected to circumcision in Sudan, the Minister noted that her parents opposed this practice and therefore found it likely that they would not force Ms Y. to be circumcised. As regards pressure from the social environment, the Minister noted that Ms Y had still not submitted any documents substantiating her identity or alleged Dilling origin. In this situation, the Minister found that it was not necessary to address the question of whether internal relocation would be a possibility. No further information about these proceedings has been submitted.

On 11 April 2013 the fifth applicant, Mr Z., applied for a residence permit under the Transitional Regulation on Children Residing Long-Term in the Netherlands (overgangsregeling langdurig in Nederland verblijvende kinderen), which provided that minors without a residence permit who had been residing in the Netherlands for over five years could obtain a residence permit if they met certain criteria. These criteria included that the minor in question must have applied for asylum at least five years before reaching the age of 18 and must not have evaded monitoring by the Netherlands authorities for more than three months. The close family members of such minors could also qualify for accompanying family-member residence permits for close relatives (that is to say parents and siblings). The fifth applicant also sought accompanying family-member residence permits for his parents, his sisters Y. and X., and for the latter’s two children, who are minors.

On 30 July 2013 this request was rejected by the Deputy Minister of Security and Justice (Staatssecretaris van Veiligheid en Justitie), who held that the applicants had not been in touch with the designated immigration authorities for over three months. On 1 September 2015, after remittal of the case by the Administrative Jurisdiction Division on 22 July 2015, the petitioners’ objection was again rejected by the Deputy Minister. No further information about these proceedings has been submitted.

In a letter of 24 September 2014, the Deputy Minister informed the Mayor of Amsterdam that he would not avail himself of his discretionary powers to admit the applicants to the Netherlands. The applicants’ objection was declared inadmissible by the Deputy Minister, who held that the content of the letter of 24 September 2014 was not a decision within the meaning of section 1:3 of the General Administrative Law Act which could be challenged in administrative appeal proceedings. Although the applicants’ appeal against this decision was granted on 1 September 2015 by the Regional Court of The Hague sitting in Amsterdam, it nevertheless held that the legal effects of the impugned decision were to remain intact. No further information about these proceedings has been submitted.


George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Nona Tsotsoria;Päivi Hirvelä;Zdravka Kalaydjieva

The applicant, Mr Eduards Antonovs, is a Latvian national, who was born in 1972 and is currently serving a prison sentence in Jelgava. The applicant, who had been granted legal aid, was represented before the Court by Ms J. Averinska, a lawyer practising in Riga.

The Latvian Government (“the Government”) were represented by their Agent at the time, Mrs I. Reine , and subsequently by Mrs K. Līce.

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

On 2 April 2003 the applicant was arrested on suspicion of murder.

On 20 October 2004 the Riga Regional Court (Rīgas Apgabaltiesa) convicted the applicant of murder and burglary and sentenced him to fourteen years’ imprisonment.

On 7 April 2005 the Criminal Cases Chamber of the Supreme Court (Augstākās tiesas Krimināllietu tiesu palāta) upheld the judgment of the first-instance court.

The applicant lodged an appeal on points of law. He noted that the appellate court had not considered his complaint that his health was deteriorating. The applicant argued that he had contracted an incurable disease in detention, that he could not abide by prison rules because of the deteriorating state of his health, and that he was not receiving the medication he needed. Referring to section 59 (6) of the Criminal Law, he asked for his sentence to be reduced.

On 19 May 2005 the Criminal Cases Division of the Senate of the Supreme Court (Augstākās Tiesas Senāta Krimināllietu departaments) in a preparatory meeting rejected the applicant’s appeal on points of law. The Senate noted that it did not have competence to release the applicant from serving his sentence. It referred to section 59 (6) of the Criminal Law and section 364 of the former Code of Criminal Procedure.

On 4 April 2003 the applicant was transferred to Riga Central Prison (Rīgas centrālcietums).

On 7 April 2003 the applicant underwent a medical examination; a note was made that he smoked and drank alcohol, but did not use narcotics; he also had several tattoos. He was prescribed fluorography, and no pathology was found. A blood test (for HIV and syphilis) was carried out; its results were negative. He was found to be “practically healthy”.

On 22 May 2003 the applicant complained to a prison doctor of a cough, cold symptoms and sweating; he was diagnosed with rhinopharyngitis. He was prescribed a five-day course of medication.

On 22 September and 2 October 2003 the applicant complained about a cough and cold symptoms. He was diagnosed with rhinopharyngitis and pharyngitis respectively on those occasions, and some medication was prescribed, a five-day course each time.

On 9 October 2003 the applicant was transferred to Brasa Prison (Brasas cietums). Although there is no information as to whether a medical examination was carried out when the applicant was admitted to the prison, or whether any tests were done, the applicant’s medical record contains a note made by a prison doctor on the date of admission that the applicant had no complaints, accompanied by the results of a basic health check (blood pressure readings and visual inspection). The applicant was found to be “practically healthy”.

On 12 December 2003 the applicant received some vitamins (one per day).

On 7 June 2004 the applicant’s lungs were examined; no pathology was found.

On 24 February 2005 the applicant complained of stomach pain: an examination was ordered, but no pathology was found. He was prescribed a seven-day course of medication.

On 15 March 2005 the applicant complained of skin problems. He was diagnosed with a skin disease and prescribed a ten-day course of medication. At the same time the applicant requested a blood test for the hepatitis C virus (HCV) at his own expense.

On 22 March 2005 the test detected the presence of HCV antibodies (anti-HCV) in the applicant’s blood.

On 11 and 12 April 2005 the applicant complained of a cold; a prison doctor concluded that he had pharyngitis. He received a three-day and a five-day course of medication; two days later he was prescribed multivitamins.

On 18 May 2005 the applicant complained of stomach pain and a prison doctor concluded that he had HCV. He received a ten-day course of liver medication (Carsyl), which was extended for another ten days with another medication (Cholagol) on 8 June 2005.

On 16 June 2005 the applicant was transferred to Jelgava Prison (Jelgavas cietums) to serve his sentence.

On 17 June 2005 the applicant underwent a medical examination. The applicant was found to be “practically healthy”. A note was made that the applicant was infected with the hepatitis C virus.

On 20 June 2005 the applicant visited a prison doctor to request treatment for the HCV (Carsyl or Essenciale forte). His status of health was noted as satisfactory, and it was explained to him that HCV treatment could only be carried out at his own expense.

On 19 August 2005 the applicant received a ten-day course of liver medication (Carsyl).

On 5 and 23 September 2005 the applicant requested that an examination and a liver biopsy be carried out. They were refused, and on the latter date a note was made in his medical record that he had no objections to this decision.

On 5 October 2005 the applicant asked the head of the Jelgava Prison Medical Unit for an in-depth HCV examination and treatment. It was explained to the applicant that in accordance with domestic law (regulation no. 358, paragraph 12) these could only be provided at his own expense. The applicant disagreed, and took the view that the treatment should be paid for by the State. The applicant was prescribed tests (fibrogastroscopy, blood and urine tests) and consultations with a general practitioner and a psychiatrist.

On 11 November 2005 the applicant consulted a psychiatrist and was prescribed a seven-day course of medication.

On 21 December 2005 the applicant was prescribed a five-day course of medication for bile duct problems.

On 17 June 2006 the applicant was prescribed a five-day course of medication for dermatitis.

On 20 July 2006 the applicant was prescribed skin medication at his own expense.

On 13 February 2007 the applicant underwent a prophylactic check-up and a DNA sample was taken from him.

On 26 April 2007 the applicant complained of headache, flu, cough and fever. He was diagnosed as suffering from an upper respiratory tract infection and prescribed a four-day course of medication.

On 6 June 2007 another prophylactic check-up was carried out. The conclusion was that he was “practically healthy”.

On 28 June 2007 the applicant underwent lung screening; no pathology was found.

On 21 April 2008 the applicant complained of fever, headache, and a cough; he was diagnosed with an upper respiratory tract infection and prescribed a four-day course of medication.

On 13 September 2008 the applicant was examined by an oculist.

On 1 July 2009 the applicant was diagnosed as suffering from an upper respiratory tract infection and was prescribed a four-day course of medication.

On 3 July 2009 the applicant underwent a prophylactic check-up. The conclusion was that his state of health was satisfactory.

On 26 October 2009 the applicant was prescribed a five-day course of medication for tracheitis.

On 21 January 2010 another medical examination was carried out and tests were taken.

On 13 July 2005 the Latvian Infectious Diseases Centre (Latvijas Infektoloģijas centrs) replied to the applicant that they could not help if they did not have any medical documents describing the applicant’s illness. The applicant had to approach his prison doctor, who could assign, within the limits of available resources, appropriate examinations to verify any diagnosis.

On 9 August 2005 the applicant submitted a complaint to the Minister of Justice, with a copy to the Minister of Health and the Prisons Administration. He stated that he had never used narcotics in his life but that soon after imprisonment he had been “infected with hepatitis C”. He requested that the State re-establish a programme for detecting and treating infectious diseases and that he be allowed to use his own darning needles, slippers and scissors in prison.

On 18 August 2005 the Prisons Administration replied that the applicant was not allowed to have these items, pursuant to domestic law. They noted that the applicant did not have objective symptoms requiring treatment for hepatitis C at that time. A reference was made to regulation no. 358, which allowed him to purchase medication at his own expense.

On 19 August 2005 the Ministry of Health replied that a diagnosis of the hepatitis C virus was generally confirmed in the Latvian Infectious Diseases Centre, using a range of examinations such as blood tests to detect if the virus was in the body or if only its antibodies were present. If the virus was detected, its genotype and activity were identified. Liver puncture biopsy was further necessary to establish the range and depth of inflammation. Only when the hepatitis C virus diagnosis had been confirmed could a decision be made as regards treatment. From 1 January 2005 medication was available in Latvia to effectively (but not 100%) treat chronic hepatitis C, if a patient did not have any other health problems or contraindications. With reference to regulation no. 1036, paragraph 15.2, it was explained that the Ministry of Justice was responsible for ensuring that medication was available to treat patients with chronic hepatitis C in prisons, therefore the applicant was advised to enquire about it there. At the same time, the Ministry of Health advised that a prison doctor was responsible for assessing convicted persons’ state of health, for providing medical care in accordance with the established diagnosis, and for prescribing medicine within the allocated budgetary resources. If an in-depth examination and special treatment was necessary, a specialist doctor (a hepatologist) from the Latvian Infectious Diseases Centre was invited to assess the patient’s state of health and draw up a treatment plan. The applicant was advised to consult a prison doctor.

On 19 August 2005 the Ministry of Justice replied that, taking into account that the applicant was suffering from a serious infectious disease (hepatitis C), he could require the relevant prison authority to take the necessary prophylactic measures if there was a risk of the disease being spread. They also referred to paragraph 2 of regulation no. 358.

On 22 August 2005 the applicant submitted a complaint to the Jelgava Court, with a copy addressed to the prosecutor’s office and the Prisons Administration. He noted that he had never used narcotics in his life but that soon after imprisonment he had been “infected with hepatitis C”. He did not request to be released on health grounds, but rather that his state of health be fully assessed by specialists from the Latvian Infectious Diseases Centre, that his sentence be reduced, and that he be transferred to an open prison.

On 29 August 2005 a judge sent those complaints back to the applicant with an explanation of the procedure for release on health grounds under section 364 of the Code of Criminal Procedure.

On 1 September 2005 the prosecutor’s office forwarded the applicant’s complaint to the head of Jelgava Prison in connection with assessment of his health and his request for his sentence to be reduced.

On 9 September 2005 the Prisons Administration replied that in accordance with regulation no. 358 convicted persons received minimum standard of health care. Assistance that was not paid for from the State budget was provided at their own expense. It was noted that the applicant had received the minimum standard of health care, including hepatoprotectives. An in-depth examination was not included in the minimum standard and was not paid for by the State. In addition, as the applicant’s state of health was satisfactory there was no need for the in-depth examination.

On 10 October 2005, in response to another complaint by the applicant, the Prisons Administration noted that a doctor was responsible for patient examination, assessment of state of health and for providing treatment; they also repeatedly explained the minimum standard of health care in prisons and that the in-depth examination was not included in the minimum standard (regulation no. 358). This examination and any further treatment could be provided at his own expense (paragraph 12).

On 10 and 11 October 2005 the Ministry of Justice responded that only a doctor can establish diagnosis and choose the most adequate therapy. They reiterated that the minimum standard did not include an in-depth examination or treatment; these could be provided at his own expense in accordance with regulation no. 358 (paragraph 12).

On 26 November 2007 the Latvian Infectious Diseases Centre informed the applicant that they provided treatment for chronic hepatitis C, but that they were not responsible for arranging for the provision of health care in prisons. The prison doctor was responsible for the applicant’s health care. They informed the applicant about the following expenses in relation to laboratory examinations related to hepatitis C: LVL 42.75, 91.60 and 128.60 for HCV RNA, HCV viral load and HCV genotype respectively (approximately 61, 130 and 183 euros (EUR)).

On 23 November 2011 the Ministry of Health replied to the applicant’s enquiry about convicted persons’ health care. They relied on regulation no. 199 and explained that primary medical care was provided by prison doctors and that secondary medical assistance was available upon prescription by prison doctors. The applicant was advised to contact prison doctor. The possibility of making a complaint to the Health Inspectorate (Veselības inspekcija) if a prison doctor did not carry out his or her professional duties was explained to him.

Section 138 (1) of the Criminal Law (Krimināllikums) provides that in cases of inadequate performance of professional duties by a medical professional resulting in “serious” (smagi) or “moderate” (vidēja smaguma) “bodily injury” (miesas bojājumi) those professionals may be held criminally responsible. In Latvian criminal law bodily injury is defined as anatomical damage to, or functional impairment of, a person’s tissue, organs or systems caused by physical (mechanic, thermic, electric, acoustic, radiation-related, chemical, biological) or psychological effects or interference (Annex no. 3 to the Law on Entry into Force of the Criminal Law).

Section 138 (2) of the Criminal Law provides that in the event of inadequate performance of professional duties by a medical professional resulting in a person’s death or infection with HIV, that professional may be held criminally responsible.

Criminal responsibility for inadequate performance of professional duties by a medical professional resulting in infection with the hepatitis B or C viruses was established by way of amendments to section 138 (2) of the Criminal Law effective from 1 July 2009.

Section 133 of the Criminal Law provides criminal responsibility for wilful infection with HIV.

Criminal responsibility for wilful infection with the hepatitis B or C viruses was established by way of amendments to section 133 of the Criminal Law effective from 1 July 2009.

Finally, with effect from 1 July 2009 criminal responsibility for infection with a dangerous disease resulting in serious bodily injury or death was established (section 1331).

According to section 59 (6) of the Criminal Law if a convicted person has fallen ill with a severe and incurable illness after the pronouncement of a judgment, a court may release that person from serving the remainder of the sentence.

According to section 116 of the Sentence Enforcement Code (Sodu izpildes kodekss), if a convicted person has fallen ill with a severe and incurable illness owing to which he or she is unable to serve the remainder of his or her sentence, the relevant penal institution has to order a medical examination and, on the basis of the results, make an application for release to the appropriate court.

The relevant part of section 640 (4) of the Criminal Procedure Law (Kriminālprocesa likums), in force since 1 October 2005, provides that a judge may release a convicted person from serving the remainder of his or her sentence if that person has fallen ill while serving their sentence, taking into account the personality of the convicted person, the nature of the offence, and other circumstances. Before the entry into force of the Criminal Procedure Law, the relevant provision was contained in section 364 of the Code of Criminal Procedure (Kriminālprocesa kodekss).

Section 10 of the Medical Treatment Law (Ārstniecības likums), as in force at the material time, provided that the Inspectorate of Quality Control for Medical Care and Working Capability (“the MADEKKI”) was responsible for monitoring the professional quality of medical care in health-care establishments. With legislative amendments effective from 5 October 2007 onwards that task was entrusted to the Health Inspectorate.

Under the relevant regulation of the Cabinet of Ministers (no. 218 (2005) entitled “Medicīniskās aprūpes un darbspējas ekspertīzes kvalitātes kontroles inspekcijas nolikums”), effective from 6 April 2005 to 9 February 2008, one of the main functions of the MADEKKI and its successor, the Health Inspectorate, was monitoring the professional quality of medical care in all health-care establishments regardless of their property type and subordination (paragraph 3.1.). Their main tasks included carrying out examinations and providing opinions about the quality of medical care in all health-care establishments, monitoring compliance with the domestic law in health-care establishments and dealing with (individual) applications concerning medical care (paragraphs 4.1., 4.4. and 4.7.). They had the right to request and receive from all health-care establishments or other persons medical documentation, information and documents necessary to carry out examinations, request and receive oral and written explanations from the person who provided medical care or who was responsible for compliance with the compulsory requirements in the institution, and examine cases of administrative offences and impose fines in accordance with the Code of Administrative Violations (paragraphs 5.1., 5.2. and 5.4.).

At the relevant time, under the Code of Administrative Violations the MADEKKI or subsequently the Health Inspectorate could impose a fine up to 100 Latvian lati (LVL) (approximately EUR 142) for breaches of the relevant medical care regulations, and up to LVL 250 (approximately EUR 355) for a repeat offence. With effect from 21 July 2010 this fine was increased to LVL 250 (approximately EUR 355) and LVL 500 (approximately EUR 710).

In accordance with Annex No. 3 to regulation of the Cabinet of Ministers no. 1036 (2004), effective from 1 April 2005 until 1 January 2007, the following outpatient laboratory tests were carried out free of charge, if prescribed by a general practitioner:

- anti-HCV test to establish the presence of antibody in blood serum;

- anti-HCV (WB – Western Blot) to confirm the presence of antibody in blood serum;

- HCV RNA (nucleic acid) (PCR – polymerase chain reaction) test to determine the presence of the virus itself in blood serum;

- anti-HCV IgM (immunoglobulin M).

In accordance with paragraph 15.2. of this regulation, the Ministry of Justice was responsible for covering costs for medical care in prisons, apart from medical treatment for those suffering from tuberculosis and HIV/AIDS, which expenses were covered from the State budget.

In accordance with Annex No. 6 to regulation of the Cabinet of Ministers no. 1046 (2006), effective from 1 January 2007, the same outpatient laboratory tests were available free of charge as under regulation no. 1036 (2004) at least until 16 May 2009, when amendments as regards the laboratory tests for hepatitis C were made.

Regulation of the Cabinet of Ministers no. 358 (1999), in force at the material time and effective until 28 March 2007, provided as follows:

“2. Convicted persons shall receive the minimum standard of health care free of charge up to the amount established by the Cabinet of Ministers. In addition, the Prisons Administration, within its budgetary means, shall provide convicted persons with:

2.1. primary, secondary and tertiary (in part) medical care;

2.2. emergency dental care;

2.3. medical examinations/check-ups;

2.4. preventive and anti-epidemic measures;

2.5. medication and injections prescribed by a (prison) doctor; and

2.6. medical equipment.

Detainees shall receive medical care in accordance with paragraph 2 of this regulation, excluding planned inpatient treatment ... Detainees shall be sent to receive inpatient treatment only in acute circumstances...

The prison authorities may agree with [a civilian hospital or medical centre] that the latter is to provide consultation and treatment at convicted persons’ ... own expense if they so wish.”

Regulation of the Cabinet of Ministers no. 199 (2007), effective from 28 March 2007, provides as follows:

“2. [Convicted persons and detainees] shall receive free of charge in prison:

2.1. primary medical care, but not scheduled/planned dental care,

2.2. emergency dental care,

2.3. secondary medical assistance in emergency situations, as well as secondary medical assistance which is provided by prison doctors within their field of expertise,

2.4. the most effective and affordable medicine, prescribed by prison medical practitioners ...

Upon application by a [convicted person or detainee], and with the approval of a prison doctor, the prison authorities may agree with [a civilian hospital or medical centre] that the latter is to provide consultations and treatment outside prison territory. Such consultations and treatment are to be paid for by the [convicted person or detainee], including transport and security-related expenses.”

On 19 November 2009 the Administrative District Court (Administratīvā rajona tiesa) (in case no. A42398506) adopted a judgment concerning a MADEKKI decision, whereby no shortcomings had been found in medical care as regards the treatment of hepatitis C in a prison. The claimant in that case, by instituting the administrative proceedings, had insisted that he had to be tested for hepatitis C virus (and not only its antibodies, anti-HCV) and that he should receive treatment. The claimant sought the quashing of the 31 October 2005 decision and compensation for distress in the amount of LVL 15,000 as well as compensation for pecuniary loss in the amount of LVL 12,884 (LVL 352 for the costs of laboratory examinations and LVL 12,532 for the costs of treatment) and for physical damage in the amount of LVL 8,000.

The court found that the MADEKKI decision (the assessment of the quality of medical care) had constituted “unlawful action by a public authority”, but did not award any compensation. This judgment took effect on 10 December 2009.

The court established the following facts:

“[8.1] In response to the claimant’s application, on 15 March 2005 [the Latvian Infectious Diseases Centre, hereinafter – the LIC] stated that prison doctors were responsible for providing medical care in prisons, that claimant was obliged to consult them, and that the LIC did not have documents attesting that the claimant was suffering from a chronic condition [hepatitis C virus, hereinafter – HCV]...

[8.3] On 19 August 2005 [the claimant was informed that] the Medical Unit of Matīsa Prison and the LIC specialists did not have confirmed data that the claimant was suffering from chronic HCV, but that they had data indicating that the claimant had been in contact with HCV. Tests for HCV to confirm or exclude [the diagnosis] of chronic HCV [did] not correspond to the notion of “acute circumstances” laid down in paragraphs 2 and 3 of regulation no. 358.

[8.4] The claimant lodged an application with [the MADEKKI] complaining about the refusal to treat him for HCV in Matīsa Prison and asking for an assessment of the quality of medical care provided to him ...

[8.7] On 10 October 2005 the [MADEKKI] drew up a report [in case no.7-25-K-771] about the claimant’s medical care in prison. The report’s conclusions indicate that on 21 December 2000 the LIC laboratory established that a positive result for HCV antibodies (anti-HCV) test in the claimant’s body had been established and that he had HIV infection in stage “C” (Aids); it was also noted that he regularly received antiretroviral therapy for the latter.

[8.8] [On 12 October 2005] administrative offence proceedings in case no.7-25-K-771 were terminated ...

[8.10] Disagreeing with this decision, the claimant lodged a complaint against it with the head of [the MADEKKI]. By a decision [of 31 October 2005, no.7-25-K-1027/8573], the decision to terminate administrative offence proceedings was left to stand and his complaint was dismissed.

[8.11] On 21 December 2005 the Ministry of Justice ... in response to the claimant’s request for LVL 12,884 to be allocated from the budget for his HCV treatment, noted that there were no resources in its budget that could be allocated to treat him ...

[8.13] On 1 February 2006 the Ministry of Justice [in response to a repeated request] explained that HCV treatment with antivirus medication was prescribed after an in-depth examination and that specific therapy ... was assigned only according to medical indications. In order to ensure State-guaranteed medical care pursuant to regulation no. 358 for persons in prisons taking into account their needs, these issues have been included in the Green Paper on Medical Care for Prisoners.

[8.14] On 13 June 2006 the claimant lodged a claim with the Riga City Central District Court against the Ministry of Justice seeking compensation for pecuniary loss in the amount of LVL 12,884 (LVL 352 for the costs of laboratory examinations and LVL 12,532 for the costs of treatment) and for physical damage in the amount of LVL 17,000. These civil proceedings ... were terminated with a judgment of 26 March 2008, whereby his claim was dismissed.”

As regards the claimant’s request for the MADEKKI decision to be quashed and for compensation for distress, the court made the following findings:

“[9.1] ... The claimant’s subjective right to request [the MADEKKI’s assessment of quality of medical care provided in prisons] is established under section 22 of the Medical Treatment Law...

[9.2] As established by the Administrative Cases Division of the Senate of the Supreme Court in its judgment of 16 October 2008 ... in case SKA-411/2008 (hereinafter – the Senate’s judgment), the law does not specify the purpose of the [MADEKKI] assessment [of the quality of medical care]. In examining [the provisions of the Medical Treatment Law] in their entirety, the Senate considers that it has several purposes – to improve the quality of medical care, a patient can use [a MADEKKI] assessment as one piece of evidence in another set of proceedings concerning medical care, and it gives a person the opportunity to ascertain the quality [of medical care] provided by a given medical institution or doctor when a choice is being made. [A MADEKKI] assessment of the quality of medical care is not binding on anyone, but as a person has a right to receive [such an assessment], it constitutes an action of a public authority.

The [MADEKKI’s] obligation to carry out the assessment pursuant to section 22 of the Medical Treatment Law was set out in regulation no.218 (no longer effective from 9 February 2008), paragraph 4.1. which at the [relevant] time provided that one of [the MADEKKI’s] tasks in carrying out its functions [was] to carry out examinations and provide opinions about the quality of medical care ... in [all] health-care establishments ...

[9.3] In accordance with order no. 432 of the Cabinet of Ministers of 11 July 2007 ... [the MADEKKI] was merged with the State Pharmacy Inspectorate and the State Sanitary Inspectorate, and ... the Health Inspectorate was established.

Pursuant to section 10 of the Medical Treatment Law, as currently effective, the Health Inspectorate is responsible for monitoring of the professional quality of medical care ... in health-care establishments.

Accordingly, at present the monitoring of the quality of medical care provided to the claimant comes within the competence of the Health Inspectorate.

Taking into account that the assessment of the quality of the claimant’s medical care within these administrative offence proceedings as expressed in [the MADEKKI] report constitutes an action of a public authority, the court, pursuant to section 250 (3) of the Administrative Procedure Law, has to determine whether the action of a public authority complies with procedural and formal criteria and whether it corresponds to provisions of substantive law.

[9.4] According to the facts of the case, by lodging the request for an assessment of the quality of his medical care the claimant insisted that he be immediately tested for possible infection with HCV and that he be treated...

It can be established from the letters sent by the LIC that its doctors, following regular examinations of the claimant’s state of health in connection with his HIV infection, have established the necessary treatment plan – antiretroviral therapy with efavirenz, zidovudine and lamivudine..., and have regularly informed the head of the Medical Unit of the Prisons Administration about it; however, they have left the claimant’s infection with HCV unattended to and have not taken measures in accordance with the Epidemiological Safety Law – they have not arranged for the necessary laboratory examinations with a view to arriving at an HCV-related diagnosis and treatment.

The claimant contends that the prison where he is being held is under an obligation to provide an in-depth examination of his state of health in connection with HCV.

At the hearing, a specialist doctor of the [Health] Inspectorate explained that any assignment to undergo a particular examination was issued only in circumstances where there are recommendations for such an examination to be carried out. If a doctor considers that a person’s request for examination is unsubstantiated, he or she may have such an examination at his or her own expense. This procedure applies to all people, with no exceptions.

The court considers this view unfounded, as health-care practitioners’ obligation to provide immediate diagnosis and treatment for a person who is infected with HCV arises from provisions of the Epidemiological Safety Law. As regards convicted persons, according to paragraph 2 of regulation no. 358 they receive the minimum standard of health care free of charge ... and also, within budgetary means ... preventive and anti-epidemic measures...

It appears from [the case material] that measures envisaged in section 14 (1) (1) of the Epidemiological Safety Law were not carried out in respect of the claimant until 23 August 2005.

Pursuant to section 37(1) of the Medical Treatment Law a doctor, within the scope of his/her professional activities, performs illness prophylaxis, diagnosis, treatment and rehabilitation of patients; evaluates illnesses and the functional restrictions to the body caused thereby in terms of activity and participation; and examines the cause of illnesses and the prophylactic possibilities.

Taking into account the aforementioned, the court finds that in the present circumstances the conclusions of [the MADEKKI] that no violations had been detected in the patient’s medical care, that the patient had been appropriately examined in response to his complaints, diagnosed and received medical care in accordance with regulation no.358 were unjustified, since in connection with his HCV infection the necessary laboratory tests with a view to specifying diagnosis had not been set up and no treatment had been prescribed.

[9.5] ... The court concludes that up to 30 June 2006 the patient did not receive compensation for expenses in relation to treatment of diseases triggered by HCV infection ...”

As regards specifically the claimant’s request for compensation for distress, the court left it without examination, as he had not requested it in the pre-trial proceedings. The court made the following findings:

“[10] It appears from the complaint [to the head of the MADEKKI] that the claimant did not request compensation for distress ...

In accordance with section 278 (1) of the Administrative Procedure Law the court leaves an application without examination (atstāj pieteikumu bez izskatīšanas) if the claimant has not complied with preliminary extrajudicial examination procedures prescribed by law. Pursuant to section 281[of the same Law], if an application is left without examination, the claimant may submit the application to the court anew in compliance with the procedure prescribed by law.”

As regards the claimant’s request for compensation for pecuniary loss and physical damage, the court considered that these claims had already been decided in the civil proceedings before the Riga City Central District Court and dismissed. It accordingly terminated administrative proceedings in this respect, as they had the same subject matter and were based on the same facts as had already been examined by another court.

The same claimant, after having properly exhausted pre-trial proceedings, instituted another set of administrative proceedings (no. A420416111) requesting compensation for distress caused by an “unlawful action of a public authority”. On 28 February 2013 the Administrative District Court granted that claim in part and imposed an obligation on the Heath Inspectorate (the successor to MADEKKI) to issue a written apology to the claimant. This judgment took effect on 29 March 2013.

As regards compensation for distress in the amount of LVL 15,000, the court made the following findings:

“[11] Pursuant to section 92 of the Administrative Procedure Law everyone has the right to receive appropriate compensation for pecuniary loss (mantiskais zaudējums) and personal harm (personiskais kaitējums), including distress (morālais kaitējums), caused by an administrative act or action of a public authority.

According to section 94 (2) of the same Law, the relevant public authority may comply with the obligation to compensate (atlīdzināšanas pienākums) by restoring the situation which existed before the damage was caused, or if it is not fully or partly possible or adequate, by paying appropriate monetary compensation (atlīdzinājums naudā).

According to section 9 of the Law on Compensation for Damage Caused by State Institutions (hereinafter – the Law on Compensation for Damages), distress within the meaning of this Law is personal harm in the form of human suffering that has been caused by a significant [and] unlawful interference (būtisks, prettiesisks aizskārums) with rights or legal interests of an individual.

Section 14 (1) of the Law on Compensation for Damages provides that personal harm and distress is determined in proportion to the significance of rights or legal interests interfered with and the severity of the specific interference, taking into account the legal and factual grounds and the reasons for the institution’s action, the victim’s actions and share of the responsibility, as well as other significant circumstances of the particular case. According to section 14 (3), monetary compensation for distress is determined in proportion to the severity of the interference. Section 14 (4) provides that an institution may issue a written or public authority, as independent or supplementary redress [for damage], in circumstances where interference is not severe.

It follows from the above-mentioned legal provisions that the ground for compensation for distress is not [interference] but rather significant [and] unlawful interference with rights or legal interests. In turn, if such [interference] has been established, compensation is determined in proportion to the severity of the harm engendered. Harm may be redressed by restoring the situation, issuing an apology or granting monetary compensation. Therefore, compensation for distress, its type and amount are determined by the significance of the interference and the severity of the harm engendered. Accordingly, if significant interference has occurred but no severe harm has been done, all types of the above-mentioned redress may generally [be afforded]. Hence also in such circumstances in determining appropriate compensation it is necessary [that] harm and compensation be proportionate.”

The court then went on to consider that the “unlawful action of a public authority” (the MADEKKI decision) did not constitute significant interference with the claimant’s rights and legal interests that would have had any influence on his right to receive medical care in prison and would have called for monetary compensation, in addition to any harm to life or serious harm to health. The court’s reasoning was as follows:

“[14]... The court considers that action of a public authority – the MADEKKI decision in the present case, where it assessed the quality of medical care, does not trigger any legal or factual consequences for the claimant...

The Senate has on several occasions pointed out that a MADEKKI assessment [of the quality of medical care] is only one of the possible pieces of evidence in a particular case, for example as concerns proceedings for compensation for damage to health. However, a MADEKKI assessment plays neither a decisive nor a determining role in deciding other matters (see the Senate’s decisions of 25 January 2005 in case SKA-76/2005 and the Senate’s judgment of 22 November 2005 in case SKA-378/2005). Therefore, the fact in itself that the MADEKKI has not found any shortcomings in the medical care provided in a prison cannot stand in the way of a decision on a question, for example, relating to the scope of medical care in prison or its availability.

The court cannot establish, either from the case material or from the claimant’s statements (answers to the court’s questions during the hearing) ... that the claimant contested an action of a public authority (the particular prison) of not providing him with medical care as required by law ...

[15] ... In determining the type and amount of compensation for distress, the court finds that the institution’s action of issuing the 10 October 2005 report and giving its assessment about treatment in prison could not harm the claimant’s life or seriously harm his health ...

The MADEKKI report – the assessment of the quality of medical care – did not directly harm the claimant’s health to the extent that the court should have set monetary compensation up to LVL 20,000 pursuant to section 14 (1) of the Law on Compensation for Damages ...

However, in determining whether distress has been caused to the claimant by [the fact] that the institution in its report did not provide a full assessment of the quality of medical care, as it has been found ... in the 19 November 2009 judgment, and taking into account the legal characteristics of the report, the court considers that pursuant to section 14 (4) of the Law on Compensation for Damages written apology may be considered independent redress.”


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

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

The applicants complained of the inadequate conditions of their detention. Some applicants also raised other complaints under the provisions of the Convention.


Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Prohibition of torture;Degrading treatment;Inhuman treatment);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Reasonable time)

Dmitry Dedov;Elisabeth Steiner;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque

The applicant was born in 1965 and lives in Volgograd.

On 15 August 2001 criminal proceedings were instituted against the applicant on suspicion of large-scale fraud.

On 28 September 2001 the applicant was arrested and remanded in custody.

On 2 October 2001 and 22 July 2002 charges were brought against the applicant.

On 7 August 2002 the criminal case was submitted to the Tsentralniy District Court of Volgograd (“the District Court”) for trial.

On 8 October 2002 the first hearing was held. It was presided over by judge A.

On 26 November 2002 the applicant was released from custody.

On 30 December 2002 the case was transferred to judge G. and, pursuant to Article 242 of the Code of Criminal Procedure (Immutability of court composition), the trial was restarted.

Between March and June 2003 and between June 2004 and January 2005 the hearings were adjourned on seven occasions: on five occasions due to the non-attendance of the accused, their representatives and the witnesses, and on two occasions, from 19 May to 11 July 2003 and from 10 December 2004 to 17 January 2005, following requests from the applicant for more time to study the case file.

In the meantime, on 19 January 2003, an unrelated criminal case was opened against the applicant on suspicion of storing firearms and narcotic drugs. He was again remanded in custody on 20 January 2003. On 19 June 2003 the District Court convicted the applicant of storing firearms and narcotic drugs and sentenced him to eight years’ imprisonment.

On 28 March 2005 judge G. went on maternity leave, and on 26 April 2005 the initial case was transferred to judge S. The trial was restarted.

Between May and November 2005 the hearings were adjourned on two occasions due to the non-attendance of the participants in the trial.

On 16 December 2005 judge S. resigned, and on 14 February 2006 the case was transferred to judge M. The trial was again restarted.

Between March and June 2006 the hearings were adjourned on three occasions due to the non-attendance of the participants in the trial.

On 19 July 2006 judge M. resigned and the case was transferred to judge Mar. The trial was restarted for the fourth time.

Between November 2006 and June 2008 the hearings were adjourned on five occasions due to the non-attendance of the participants in the trial.

On 6 August 2008 the District Court of Volgograd found the applicant guilty of complicity in large-scale fraud and sentenced him to three years and six months’ imprisonment. The final sentence under both verdicts was set at nine years’ imprisonment.

On 1 December 2009 Volgograd Regional Court upheld the judgment on appeal.

The applicant was detained in Volgograd remand prison IZ-34/1 from 10 October 2001 to 26 November 2002, from 20 January 2003 to 19 August 2003, from 23 September 2003 to 17 May 2005, from 12 July 2005 to 29 April 2008 and from 16 May 2008 to 6 September 2008. He submitted that the cells had been severely overcrowded and in a poor sanitary condition.

The cell where the applicant was held most recently, measuring approximately thirty square metres and equipped with eighteen bunk beds, accommodated between twenty and thirty inmates at any given time. The inmates were obliged to take turns to sleep.

The toilet in the corner of the cell (a hole in the floor measuring about 15-20 cm in diameter), elevated above the floor by 0.4 metres and separated by a 0.6 metre partition, offered no privacy. It had no flushing system.

The cell was not equipped with a washstand. Instead, the inmates had to use the water running from a tap over the toilet.

The dining table was situated a metre away from the toilet. It could seat about ten inmates. The rest of the inmates had to eat sitting on the concrete floor.

The food was of low quality. The drinking-water tanks were placed on the floor.

The cell was lit around the clock by two 100-watt filament lamps. It was poorly ventilated. The air was thick with the stench of tobacco, laundry and the toilet.

The cell was infested with insects and rodents.

The applicant was allowed to take a five-minute shower once a week.

The exercise yards were unequipped and too small to accommodate all the detainees properly.

The applicant twice contracted tuberculosis while being detained in Volgograd IZ-34/1. His eyesight deteriorated.

The applicant’s attempts to challenge the conditions of his detention before various domestic authorities yielded no result.

The applicant was transported from the remand prison to the courthouse and back more than a hundred times between 2001 and 2008. Prisoners were transported between the remand prison and the courthouse in a prison van – a metal freight vehicle comprising three compartments: two designed for twenty inmates and the third one for single occupancy. The van had no windows and offered no access to natural light or air. It had no artificial lighting or ventilation either. There were no seat belts or other safety equipment to prevent inmates from falling and hitting themselves against the walls. It was stiflingly hot in the van in the summer and freezing cold in the winter.

There were four cells in the holding area of the District Court where the applicant was taken. Each cell measured about three square metres and accommodated five to six inmates. The cells were equipped with one bench each, which could seat only three inmates. Those suffering from hepatitis, tuberculosis, HIV and other diseases were placed together with the rest of the inmates. On each occasion the applicant spent as long as seven or eight hours in such conditions.


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

Iulia Motoc;Marko Bošnjak;Paulo Pinto De Albuquerque

The applicant was born in 1971 and is currently serving a prison sentence in Vaslui Prison.

In 2012 the applicant was convicted of human trafficking and sentenced to ten years’ imprisonment.

He was detained in several detention facilities. However, in the present application he only complained about the conditions of his detention in Iaşi Prison and about the fact that he had not been assigned a personal care assistant in Rahova and Iaşi Prisons between 2 April 2013 and 30 January 2014.

The applicant was detained in Iaşi Prison on several occasions, for a period of almost ten months: between 2 and 16 August 2013, 3 September 2013 and 11 March 2014, 14 March and 6 June 2014, as well as from 27 June and 4 July 2014.

The applicant alleged that he had been kept in conditions of poor hygiene in overcrowded cells. He had shared a cell of twentynine square metres with seventeen other detainees. Moreover, he submitted that he had shared his cell with smokers despite the fact that he was a nonsmoker. The food had also been of very poor quality.

According to the information provided by the National Prison Administration and forwarded to the Court by the Government, the applicant was held in the following cells:

- cells E 4.3, E 6.2. and E 6.7., all measuring 33.33 sq. m, containing twentysix beds (that is, 1.2 sq. m per bed), occupied by twenty to twentysix detainees;

- cell E 7.5., measuring 17.48 sq. m, containing three beds (that is, 5.8 sq. m per bed), occupied by one to three detainees;

- and cell E 8.10, measuring 17.48 sq. m, containing eight beds (that is, 2.1 sq. m per bed) and occupied by four to eight detainees.

The Government did not provide any information concerning either the exact number of detainees who had occupied the cells or the time spent by the applicant in each of the above-mentioned cells.

The detainees were provided with cleaning materials and personal hygiene products and they were responsible for cleaning the cells. Specialist contractors carried out work to eradicate rodents and insects whenever it was considered necessary. The detainees were entitled to two showers per week.

The applicant received a special diet for his medical condition (see paragraph 13 below).

On 29 October 2013 a medical commission issued a certificate attesting that the applicant had been classified as a person with a permanent, severe physical disability on account of his visual impairment. The medical commission granted the applicant the right to a personal care assistant.

The applicant alleged that no special arrangements had been made for him as a person with severe visual impairment in Iaşi and Rahova Prisons between 2 April 2013 and 30 January 2014.

Moreover, he contended that he had not been assigned a personal care assistant and had been permanently subjected to humiliating and degrading remarks from his cellmates, the same people to whom he had to appeal for assistance. As he had had no personal assistant he had not been able to benefit from daily walks and had been dependent on the other inmates to be moved around the prison.

He had only received assistance from inmates in the facility in exchange for cigarettes and money. The inmates had refused to help him unless they were paid. The administration had not taken any steps to rectify the situation.

The applicant submitted copies of several requests he had lodged with the prison authorities on 21 May, 21 November and 23 December 2013 and on 20 February 2014 respectively, by which he had asked to be assigned a personal assistant. In each of his requests he had indicated the name of the co-detainee he had preferred to be assigned to him. All these requests were dismissed on the ground that the co-detainees indicated by the applicant could not assist him because they had been subject to disciplinary sanctions.

The Government submitted that the administration of both prisons had made diligent efforts to comply with the standards imposed by the Court. Moreover, in 2013 the authorities in Iaşi Prison had refurbished cell E 4.3 (see paragraph 9 above) to accommodate the needs of detainees with disabilities, including those of the applicant.

The Government contended that the medical certificate on his disability had been issued only on 29 October 2013 (see paragraph 13 above) because the applicant had failed to submit the documents requested by the special commission for disabled persons. They further argued that even before the medical certificate had been issued, the prison authorities had on 9 August 2013 allowed a request lodged by the applicant on 7 August 2013 to be assigned a personal care assistant. They had assigned him an inmate, M.D., who had been sharing the applicant’s cell. He had assisted the applicant until 16 August 2013, when the latter had been admitted to the medical unit of Dej Prison. In the medical unit the applicant had been assisted by a co-detainee with whom he had shared the room. The Government did not provide any information about the co-detainee in question.

After the applicant had returned to Iaşi Prison he had lodged a request to be assigned a personal care assistant. On 22 April 2014 the prison authorities had assigned him an inmate, whom the applicant had refused.

The applicant lodged several complaints on the basis of Law no. 275/2006 on the execution of sentences with the post-sentencing judge.

In 2013 the applicant lodged three complaints concerning an infringement by the administration of the Rahova Prison of his right to have a personal care assistant. He stated that he had not been assigned a person to assist him although he was suffering from a severe visual impairment.

The complaints were joined and examined together by the postsentencing judge on 14 June 2013. The judge noted that the prison doctor’s opinion was that the applicant was not entitled to a personal assistant. It further noted that on 9 May 2013 the prison authorities had appointed a commission of specialists, which had examined the applicant. The commission had found that owing to his visual impairment the applicant encountered difficulties in eating, maintaining his hygiene and in alerting prison staff or other co-detainees in case of need. It had therefore recommended a set of steps to be taken, which included closely monitoring the applicant. Subsequently, a detainee, C.F., sharing the applicant’s cell, had been assigned to support him in his daily activities. The post-sentencing judge dismissed the applicant’s complaints on the grounds that the steps taken by the prison authorities had been sufficient.

In his application to the Court, the applicant contended that assigning him C.F. had been useless because the latter had refused to provide him with any help. The applicant produced a handwritten statement by C.F., dated 20 June 2013, in which the latter had stated that he had not helped the applicant because the prison authorities had refused to consider his activity as a personal care assistant as work that should be remunerated.


Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life)

Ján Šikuta;Josep Casadevall;Kristina Pardalos;Luis López Guerra

The applicant was born in 1971 and lives in Buenos Aires. He is a military pilot.

On 11 August 2005 his child was born of his marriage with M.T.R. who holds both Romanian and Argentinean nationality. At the date of the facts, the family’s permanent residence was in Argentina, but they travelled due to the applicant’s various work assignments.

In September 2006 the applicant was sent to a UN mission in Cyprus where his family joined him shortly after. While in Cyprus, the family travelled to Spain to visit the applicant’s sister. In order to facilitate the travelling, the applicant and his wife signed an authorisation form allowing each one of them to travel abroad with the child.

After having lived together for seven months in Cyprus, the applicant and M.T.R. decided together that M.T.R. would take their child to Romania for a few months, and would join the applicant in Buenos Aires in October, at the end of his contract in Cyprus. The parents agreed that M.T.R. and the child would return to Argentina before 15 October 2007, the date at which the child’s passport would expire.

M.T.R. was unable to make travel arrangements on time, as the applicant had been late in sending money for the tickets, and eventually the child’s passport expired. M.T.R. sought the applicant’s consent to request a Romanian passport for the child, but the applicant refused.

On 14 November 2007 M.T.R. informed the applicant that she would not return with the child to Argentina. Later on, on 3 February 2008 she filed for divorce and custody of the child before the Romanian courts.

On 16 November 2007 the applicant withdrew the authorisation that he had given to the wife to travel with the child. On 4 December 2007 he also lodged a request for the return of the child under the Hague Convention on the Civil Aspects of International Child Abduction (“the Hague Convention”), with the Argentinean Ministry of Foreign Relations, the Central Authority for the purpose of the Hague Convention.

On 4 January 2008 the notification made by the applicant was received by the Romanian Ministry of Justice, the Central Authority for the purpose of the Hague Convention (“the Ministry”). At the Ministry’s request, the police visited M.T.R.’s home and inquired about their situation. She provided copies of their identity papers and of the authorisation form allowing her to travel with the child.

On 12 February 2008 the Romanian Central Authority tried unsuccessfully to engage the mother in negotiations concerning the return of the child to Argentina. On 30 March 2008 they lodged before the Bucharest County Court an application under the Hague Convention for the return of the child.

Five hearings took place in the case. At the first hearing M.T.R. filed a response to the applicant’s motion; a postponement was granted at the Ministry’s request. At the second hearing M.T.R. learned, allegedly for the first time, that the authorisation to travel had been withdrawn by her husband. This hearing as well as the next one were postponed at M.T.R.’s request. At the next hearing M.T.R. asked that the applicant’s request be dismissed; she claimed that he was sexually deviant and stated that she feared for her child’s safety should he be returned to his father. The applicant did not appear in court.

On 8 July 2008 the County Court granted the applicant’s request and ordered M.T.R. to return the child to the habitual residence in Buenos Aires within two weeks from the date of its decision. It noted that while the applicant had given his consent to the travel to Romania, his wife retained the child in Romania against the applicant’s will contrary to what had been initially agreed upon. It also observed that the parents maintained joint custody of the child, as they had been legally married at the date of the wrongful retention. It further noted that on 16 April 2008 the Huşi District Court had granted the couple’s divorce but had not decided on the custody of the child (see paragraph 21 below). It dismissed as unfounded the mother’s allegations that the applicant was not taking active part in the child’s upbringing and that his presence constituted a major risk for “the child’s physical, psychical, emotional and affective development”. The decision was final and enforceable within two weeks.

On 12 August 2008 M.T.R. appealed in cassation. The case was heard on 27 November 2008 by the Bucharest Court of Appeal. In a final decision of 4 December 2008 the court upheld the County Court’s decision.

On 22 December 2008 the Ministry requested the assistance of a bailiff for the enforcement of the final decision. On 8 January 2009 the bailiff informed M.T.R. of the obligation to comply with the court order. The next day M.T.R. lodged an application for a stay of execution which was dismissed by the Bucharest County Court on 25 March 2009.

A new enforcement attempt took place on 2 April 2009 when M.T.R. informed the bailiff that she refused to comply with the return order. She explained that the applicant could keep contact with the child through internet and webcam, that she kept him updated with the developments of the child and that he did not support the child financially. On that day the bailiff decided to postpone the enforcement proceedings.

At the same time, M.T.R. requested the annulment of the final decision of 4 December 2008 (contestaţie în anulare) which she considered to be “unfounded and unlawful” (netemeinică şi nelegală). On 23 February 2009 the Bucharest Court of Appeal granted her request, quashed the return order and sent the case back for re-examination of the appeal on points of law. The Court of Appeal retried the appeal and in a final decision of 4 May 2009 dismissed the initial request for the return of the child. The court considered that the child’s arrival to Romania was not unlawful as both parents had consented to the trip. It also found that the child was already integrated in his new environment. It considered that it would not be in the child’s best interest to return to Argentina, because the applicant travelled often due to his job as a military pilot and consequently could not take proper care of the child:

“The social workers’ reports in the case and the child’s psychological evaluation show that the child is harmoniously developed – affectively, emotionally and intellectually -, is affectively attached to his mother and maternal grandmother, and is integrated in the environment in which he lives since his arrival in Romania. His return to Argentina is perceived by the court as not corresponding to his superior interest in so far as, notably, his father being a military pilot, is selected for missions within the United Nations, which makes it impossible for him to be preoccupied with raising, caring for and educating the child; in addition frequent travel by the child with his father in these missions is unfavourable to the child’s harmonious development.”

On 15 May 2009 the Ministry informed the Argentinean Central Authority of the outcome of the proceedings and advised the applicant to request a right of access under the Hague Convention. The Argentinean Central Authority sent the decision to the applicant and expressed their disagreement with the court’s reasoning. They argued mainly that the protractions leading to the child becoming integrated in his new environment, in Romania, were not imputable to the applicant, but to the Romanian authorities themselves. Moreover, they claimed that the Romanian courts were wrong in considering that because of his profession the applicant could not take care of the child; in any event, such consideration should have been examined and decided by the courts ruling on the custody of the child.

The Ministry kept close contact with the Argentinean Central Authority throughout the proceedings, informing them of the progress of the case and seeking information requested by the courts about the applicant.

On 3 February 2008 M.T.R. filed for divorce and custody of the child. On 27 February 2008 the Ministry informed the applicant of those proceedings.

On 16 April 2008 the Husi District Court granted the divorce but decided not to rule on the custody matters before the end of the Hague proceedings which were pending at that time.

The applicant did not appeal and the decision became thus final.

On 26 September 2011 the Bucharest District Court granted M.T.R. custody of the child and awarded the applicant visiting rights. The parties appealed; the applicant contested the alimony set by the court. The decision became final with certain amendments on 6 December 2012 when the Court of Appeal dismissed the appeals on points of law lodged by the two parents.

In the latter part of 2009 the applicant travelled for the first time to Romania since the beginning of the conflictual situation. He stayed with M.T.R. and his child in M.T.R.’s apartment in Husi for a month.

In 2010 the applicant travelled to Romania on two occasions, once accompanied by the child’s paternal grandmother. The child was able to spend time with his father and shared his hotel room for one night.