Preliminary objection dismissed (Article 37-1-b - Matter resolved);Remainder inadmissible;No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life);No violation of Article 14+8 - Prohibition of discrimination (Article 14 - Discrimination) (Article 8 - Right to respect for private and family life;Article 8-1 - Respect for family life)

Egidijus Kūris;Guido Raimondi;Helen Keller;Nebojša Vučinić;Paul Lemmens;Robert Spano

The applicant was born in 1960 and lives in Cully, Canton of Vaud.

The applicant is the father of three children. His eldest daughter, born in 1986, is from a former relationship and lives with him. In 1995 the applicant married his (now ex-)wife, with whom he had two more children, born in 1996 and 1999.

The applicant and his wife separated in 2002. The separation was pronounced by the Civil Court of the District of East Vaud (Tribunal Civil de l’Arrondissement de l’Est Vaudois – hereinafter “the Civil Court”) on 16 May 2002 and the mother was given custody (garde) of the two children, particularly in view of their young age (the younger child was three at the time of the decision). In turn, the applicant was granted extensive contact rights, which he had to exercise by agreement with his wife. He confirmed that since then his children usually stayed with him every Thursday after school until Friday morning, and every other week, from Thursday after school until Monday morning. Additionally, they spent half of the school holidays – around seven weeks a year – with him. He calculated that that amounted to approximately 42% of the time. His daughter from his former relationship resided with him.

On 11 January 2005 the applicant filed for divorce with the Civil Court. After his wife’s reply to the court on 8 March 2005, the couple submitted a joint petition for divorce on 17 January 2006. In addition, both parties applied for sole parental authority (autorité parentale exclusive) over and custody of the children.

In order to decide to whom parental authority should be awarded, the Civil Court commissioned an expert opinion from the psychiatry and psychotherapy service for children and adolescents in the Canton of Vaud. The expert’s report, based on several interviews with the parents as well as with the children, was issued on 18 July 2006. It revealed that owing to major disagreements between their parents, both children were caught in conflicts of loyalty towards them, which they tried to resolve by wishing to divide their time equally between the parents. Furthermore, while the applicant wished for shared parental authority (autorité parentale conjointe) for the children, his wife opposed it. She justified her opposition by alleging that the applicant had attempted to pressure her and had made incessant requests regarding the children. She feared that he would use shared parental authority to increase his influence over the children in order to distance them from her. In this regard, she also mentioned that he had used inappropriate strategies to obtain custody of his eldest daughter, who was living with him, and had influenced the daughter negatively against her mother. However, the applicant’s wife was largely in favour of the children maintaining contact with their father and supported his extensive contact rights. Regarding the applicant, the expert observed that while he acknowledged that he had regular contact with his children, he had also expressed the feeling that he was not accepted as the other parent and had been made to feel like a mere “paying father”. The expert also noted that the couple disagreed on many child-related issues, which had had a negative impact on the children. In view of the fact that the applicant’s wife was a good mother and had shown her willingness to cooperate with the applicant, the expert recommended that parental authority be awarded to her and that the applicant be granted extensive contact rights. Furthermore, the youngest child had expressed the wish to stay close to his mother and the children were socially well integrated at their mother’s place and at the local school.

The applicant contested the expert opinion and the Civil Court therefore ordered a second one. On 31 March 2008 the second expert, also specialised in child and adolescent psychiatry and psychotherapy, confirmed the findings of the first expert. He based his findings on numerous documents received from the Civil Court and the parents, as well as on various interviews conducted with all the family members. At the outset he observed that despite the fact that two years had elapsed between the drawing up of the first and second expert reports, the applicant and his wife had maintained their conflict and had been unable to find any common ground for agreement regarding the children. Furthermore, they both had difficulties recognising each other’s parenting abilities. Nevertheless, the expert acknowledged that both parents had good parenting skills and were able to create an adequate environment for their children. Owing to the ongoing tensions between them, however, the expert found that there was no common ground for shared parental authority and custody and that that would therefore not be in the best interests of the children, who were still caught in conflicts of loyalty towards their parents. The expert further recommended that the applicant should not be awarded sole parental authority over the children. In his view, the applicant still appeared to be very affected by the divorce proceedings. He had criticised the parenting skills of the children’s mother on various occasions and had shown that he had difficulties in distinguishing his feelings towards her from those aroused by the separation from his children. Despite having exercised extensive contact rights with the full support of his wife, he still claimed that he sometimes felt like a mere “paying parent”. In that context, the expert also mentioned the inappropriate ways in which the applicant had obtained custody of his eldest daughter. The expert concluded that it was in the best interests of the children for the courts to award parental authority to the mother and to maintain the applicant’s extensive contact rights. That solution would furthermore provide continuity for the children.

Following that expert opinion, the applicant informed the Civil Court by letter of 27 May 2008 that he was withdrawing his application for parental authority and custody. At the subsequent hearing, the Civil Court questioned various witnesses, who testified that the applicant was fully exercising his contact rights and was undertaking many activities with the children. They also stated that the parents’ relationship had remained conflictual and that the applicant felt much more animosity towards his exwife than she did towards him. By a final judgment of 15 December 2009 the Civil Court pronounced the divorce of the parties and awarded parental authority over and custody of the children to the mother, while maintaining the applicant’s previous extensive contact rights.

On 9 January and 2 February 2010, the applicant lodged a “partial appeal” against the Civil Court’s judgment with the Appeal Court of the Canton of Vaud (le Tribunal Cantonal, chambre des recours, Canton de Vaud - hereinafter “the Appeal Court”). He complained that the granting of parental authority to his ex-wife by the Civil Court was not in accordance with the European Court’s judgment in the case of Zaunegger v. Germany (no. 22028/04, 3 December 2009). He claimed that parental authority could not be withdrawn from a father who had, since the separation from his wife in 2002, extensively proved his parenting abilities. He reproached his ex-wife for behaving inappropriately towards the children in several respects and claimed that that was why he disagreed with the award of sole parental authority to her. Lastly, he stated that he no longer had the financial means to be represented by a lawyer.

The Appeal Court dismissed the applicant’s appeal by a judgment of 9 February 2010, ruling that under Article 133 § 1 of the Swiss Civil Code (hereinafter “the Civil Code” – see paragraph 20 below), on divorce proceedings, parental authority could only be awarded to one of the parents. The maintenance of shared parental authority would require, under Article 133 § 3 of the Civil Code (see paragraph 20 below), a joint request by both parents, and shared parenting could not be imposed on a parent who opposed it, such as the mother in the present case. The Appeal Court also found that despite the applicant’s criticism of his ex-wife’s parenting abilities, there were no grounds for changing the award of parental authority. Furthermore, such a solution would be contrary to the experts’ findings. As provided for in Article 133 § 2 of the Civil Code (see paragraph 20 below), the judge’s paramount consideration when deciding on parental authority was what was in the child’s best interests. All relevant circumstances had to be taken into account, including any possible joint request by the parents for shared parental authority and, where possible, the children’s views. In cases such as the present one, in which experts had recognised that both parents had good parenting abilities, a parent’s willingness to cooperate with the other parent in the children’s best interests was conclusive. As shown by the experts’ opinions before the Civil Court, it had been the mother in the present case who had shown fewer difficulties in cooperating with the father. The Appeal Court therefore upheld the Civil Court’s judgment.

In his appeal to the Federal Supreme Court, the applicant held that, owing to Article 133 § 1 of the Swiss Civil Code (see paragraph 20 below) and his wife’s refusal to make a joint request, he had not been given the opportunity to apply to the domestic courts for shared parental authority. Referring to the case of Zaunegger (cited above), he stated that every father should be able to apply to the domestic courts for shared parental authority, even if the mother was opposed to it, as that was in the children’s best interests.

The Federal Supreme Court dismissed the applicant’s appeal on 11 August 2011. It held that it was doubtful whether the applicant had sufficiently substantiated his appeal. Even assuming that he had done so, his case differed substantially from Zaunegger (cited above). First, while in Zaunegger the parents had not been married, in the present case the applicant was a divorced father. Second, Swiss law not only provided that the applicant, like his (ex-)wife, could apply for sole parental authority but both parents had also been treated equally. Unlike the German law regarding parents of children born out of wedlock, as established in Zaunegger, Article 133 § 1 of the Swiss Civil Code (see paragraph 20 below) did not privilege one of the parents on the basis of his or her sex when awarding parental authority, and the mother had no right to veto the father’s request in this regard. Under Article 133 § 3 of the Swiss Civil Code (see paragraph 20 below), the decision was based solely on the children’s best interests. The Federal Supreme Court concluded that the applicant’s case could not be compared to Zaunegger because there was no indication that he had been treated differently, when deciding on parental authority, from the children’s mother.

On 21 June 2013 the Swiss Parliament adopted amendments to the Civil Code provisions on parental authority, which will enter into force on 1 July 2014. Accordingly, shared parental authority will be the rule, independently of the parents’ civil status. To continue with shared parental authority after divorce will hence no longer require a joint request by the parents. However, if the judge considers that it is in the child’s best interests, parental authority can still be awarded to only one parent. The implementation provisions of this amendment to the Civil Code further provide that in cases decided under (former) Article 133 of the Civil Code (see paragraph 20 below), where parental authority had been awarded to only one of the parents, the other parent or both together can apply to the child protection authority for shared parental authority. Moreover, the parent from whom parental authority had been withdrawn in the divorce proceedings may also apply to the court on his or her own motion if the divorce was finalised after 1 July 2009.


No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for private life)

Aleš Pejchal;Armen Harutyunyan;Kristina Pardalos;Krzysztof Wojtyczek;Linos-Alexandre Sicilianos

The applicant was born in 1976 and is detained in Lublin.

On 10 October 2008 the applicant was arrested on suspicion of the attempted murder of his brother, K.D.

On 25 March 2009 a bill of indictment against the applicant was lodged with the Lublin Regional Court.

On 12 December 2011 the Lublin Regional Court convicted the applicant and sentenced him to 10 years’ imprisonment.

The applicant appealed.

On 21 August 2012 the Lublin Court of Appeal upheld the conviction.

On 7 December 2012 the applicant’s lawyer lodged a cassation appeal with the Supreme Court.

On 10 June 2013 the Supreme Court dismissed the cassation appeal as manifestly ill-founded.

Following his arrest, on 11 October 2008 the applicant was remanded in custody in the Lublin Remand Centre.

On 22 August 2009 the prison authorities discovered 132 pills of psychoactive drugs hidden in the applicant’s clothes.

On 26 August 2009 the applicant encouraged other prisoners to start a hunger strike. On the same day, the Penitentiary Commission, viewing the applicant as someone who posed a severe danger to the safety of the facility, classified him as a “dangerous detainee”. The applicant then went on a hunger strike which lasted until 7 September 2009. He was punished by being placed in solitary confinement for fourteen days.

In November 2009 the applicant refused to continue to take part in his rehabilitation programme and was therefore excluded from it.

On 18 February 2010 the special regime for dangerous detainees was lifted in respect of the applicant.

Between 17 November 2009 and 31 March 2010 the applicant was detained in the Rzeszów Remand Centre. On the latter date he was transported back to Lublin.

The applicant’s behaviour during 2011 varied: he was sometimes rewarded for good behaviour and sometimes faced disciplinary measures. Such measures were imposed in particular for illegal contact with other inmates, for commencing hunger strikes and for being active in the prison subculture.

On 6 December 2011 prison officers found that the applicant had 80 Polish zlotys in cash from an unknown source. The money was seized and transferred to the applicant’s bank account.

On 30 January 2012 the applicant attempted to go for a walk in the prison yard without permission from the supervising officer and was reprimanded on 1 February.

On 4 February 2012 the applicant was visited by members of his family and tried to pass them an illegal message on a piece of paper. After the visit he was ordered to undergo a strip search.

On 6 February 2012 the applicant complained about the strip search to the Lublin Remand Centre.

On 17 April 2012 the director of the Lublin Remand Centre examined his complaint and found that the search had been performed in accordance with the law and that the applicant had not been debased or humiliated. The director also found that on 4 February 2012 the applicant had given a visiting member of his family a piece of paper with some notes on it. The director found that that “constituted a violation of discipline and order”.

On 29 April 2012 the applicant complained about another strip search, which had taken place on 28 April 2012. His complaint was examined on 29 June 2012 by the director of the Lublin Remand Centre, who found that the search had been carried out in accordance with the law.

On 5 June 2012 the applicant underwent a strip search which was accompanied by a search of his cell. The inspection of the cell was part of an action plan introduced at the Lublin Remand Centre in 2012 to increase security. The plan included the inspection of all the cells.

In his observations before this Court, the applicant’s lawyer submitted that the applicant had been ordered to undergo a strip search on 5 June 2012, even though he had had severe back pain and had barely been able to walk. He had also had difficulties getting undressed.

The applicant complained to the director of the remand centre. He submitted that after the search of his cell his personal belonging had been thrown on the floor, mixed in with other inmates’ possessions and that the cell had “looked like after a hurricane”. In the complaint he neither mentioned any irregularities as regards the strip search nor complained about back problems.

On 9 August 2012 the remand centre director dismissed the complaint. He found that the search had been performed in accordance with the law and had respected the applicant’s rights and personal dignity. The relevant part of the director’s decision read as follows:

“The strip search and cell inspection were conducted in accordance with Article 116 §§ 2, 3, 4 and 5 of the Code of Execution of Criminal Sentences. The guards did not use offensive language and did not debase you. Nobody hit you. The objects which were inspected were not thrown around. Nothing was damaged during the search.”

In 2012 the applicant was seen by a neurologist seventeen times and on two occasions by a neurosurgeon. On 16 October 2012 an operation, apparently for back pain, was scheduled for the applicant for 17 September 2013. The doctors did not advise against body checks of the applicant.

On 25 August 2012 the applicant had a visit from his sister and brother-in-law and was afterwards ordered to undergo another strip search. He again complained to the director of the Lublin Remand Centre, submitting that the strip search had not been justified and had lacked legal grounds.

On 30 October 2012 the director of the Lublin Remand Centre dismissed the complaint as ill-founded.

The relevant part of the decision read:

“The strip search you were subjected to was carried out in accordance with the relevant provisions and with respect for your personal dignity.”

On 3 November 2012 the applicant received a visit from members of his family and was allowed to have direct contact with them. Afterwards, he was again ordered to undergo a strip search. The applicant stated that he had intense pain in his spine on that day and could barely stand and had therefore refused to undergo the search. The chief duty officer was then called. He arrived with three other guards and subjected the applicant to a strip search. He was ordered to strip naked, bend at the knees, show his penis and open his mouth. However, as he was deemed to have performed the guards’ orders “in a dilatory manner” he was punished on 6 November 2012 with a two-month ban on having direct contact with his family during visits, only being able to see them from behind a glass screen.

On 3 November 2012 the applicant complained to the Central Board of the Prison Service about the way the strip search of 3 November 2012 had been conducted. He submitted, among other things, that he had had severe back pain after the family visit, had barely been able to move and had therefore refused to undress. The prison officers had apparently ignored his complaints and had “forced him to undergo the strip search”. He also submitted in the complaint that he had been unable to get dressed after the strip search because of the severe pain in his back and that he had been left standing in only his underpants for about fifty minutes. One of the officers had then opened the window to let in freezing air to make him get dressed quickly.

On 7 November 2012 the applicant also complained about the imposition of the disciplinary penalty on him after the strip search of 3 November 2012.

On 20 November 2012 the director of Lublin Remand Centre informed the applicant that his complaint of 3 November needed further investigation, which would last until 7 December 2012. The applicant did not provide any further information about the outcome of those proceedings.

The complaint of 7 November 2012 was dismissed on 20 November 2012. The decision, issued by the deputy director of the Lublin Remand Centre, said that the “applicant refused to undergo a strip search and only agreed to comply when the chief duty officer was called”. The decision does not refer to the applicant’s submissions that the alleged reason for his refusal to undergo the strip search had been severe back pain. It also made no reference to his allegations that he had been left for about fifty minutes in a state of being unable to get dressed and that he had been forced to put his clothes on by someone letting freezing air into the room. The applicant then lodged a further complaint with the Lublin Regional Court, which, on 17 December 2012 upheld the decision given by the deputy director of the Lublin Remand Centre. The court found that the decision had been issued in accordance with the relevant provisions of the law and that it had no competence to examine whether the decision had been well-founded or not.

On 12 September 2013 the Lublin Regional Court, in view of the applicant’s state of health and his neurological and orthopaedic problems, granted him leave to undergo the operation outside prison. The applicant was scheduled to return to prison on 12 January 2014.


Jon Fridrik Kjølbro;Julia Laffranque;Paul Lemmens;Georges Ravarani;Ksenija Turković

The applicant, Mr Nikola Frlan, is a Croatian national who was born in 1961 and lives in Zagreb. He was represented before the Court by Mr A. Korljan, a lawyer practising in Zadar.

The Croatian Government (“the Government”) were represented by their Agent, Ms Š. Stažnik.

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

On 28 February 1995 the applicant took out a loan with Z. bank (hereinafter “the bank”) of 193,400 deutschmarks (DEM). He used his house as security, allowing the bank to register a charge against it.

On 6 November 2000 the bank instituted enforcement proceedings against the applicant in the Zagreb Municipal Court (Općinski sud u Zagrebu), for the seizure and sale of his house. It was argued that he had failed to repay the loan.

On 14 February 2001 the Zagreb Municipal Court granted the bank’s request and issued an enforcement order against the applicant. He appealed, arguing that the enforcement order had been declared invalid and that the interest rate on the loan had been miscalculated.

On 16 May 2006 the Zagreb County Court (Županijski sud u Zagrebu) dismissed the applicant’s appeal as being without merit, finding that the statutory conditions for enforcement had been met.

On 8 March 2011 the Zagreb Municipal Civil Court (Općinski građanski sud u Zagrebu – “the Zagreb Civil Court”) held a second public auction for the sale of the house. There was only one bidder, M. The court granted title to the applicant’s house to him, on condition that he paid 471,000 kunas (HRK) as the purchase price, which was half of the estimated market value. The decision became final on 30 March 2011, after M. paid the purchase price.

On 20 May 2011 the Zagreb Civil Court ordered that the house be transferred to M. The decision was not amenable to appeal.

On 21 January 2013 the applicant requested that the enforcement proceedings be stayed until the outcome of criminal proceedings he had instituted against his former representative was known.

On an unspecified date the Zagreb Civil Court scheduled the applicant’s eviction for 28 February 2013.

On 13 February 2013 the applicant requested that the enforcement proceedings be stayed until the dispute with his bank had been settled. He argued that his daughter would have to interrupt her studies in the middle of the academic year and that she was a carer for other members of the household.

On 28 February 2013 the Zagreb Civil Court declared the applicant’s application inadmissible, finding that the statutory conditions for adjournment had not been met and that he had lost his right to possession of the house when he had received the decision of 20 May 2011. In addition, the court referred to a statement he had given to the court bailiff on 19 November 2012 promising to move out of the house before 1 February 2013 without lodging any further appeal.

On 1 March 2013 the judge in charge of the enforcement proceedings held a meeting with the parties’ lawyers, the court bailiff and the police. The applicant’s representatives were informed that there would be no further announcements regarding the eviction date, but that it would not take place before 11 March 2013. They were also informed that there would be no further adjournments, and the police were instructed to better prepare themselves.

On 6 March 2013 the applicant applied to the Zagreb Civil Court for the judge in charge of the enforcement proceedings to be withdrawn from the case, arguing that he was preparing a “secret eviction”.

On 2 April 2013 the President of the Civil Court refused that request.

On 9 April 2013 the Zagreb Civil Court scheduled the applicant’s eviction for 16 April 2013, ordering the court bailiff to execute it. The applicant lodged a constitutional complaint against that decision.

On 16 April 2013 the applicant and his family were evicted.

On 20 June 2013 the Constitutional Court declared the applicant’s constitutional complaint inadmissible as it did not have jurisdiction.

On an unspecified date the applicant brought a claim against M. before the Zagreb Civil Court to determine ownership of a garage and some land adjacent to the house. He argued that in the enforcement proceedings M. had bought only the house, not the garage and land.

On 29 November 2013 the Zagreb Civil Court dismissed the applicant’s claim, arguing that M. had bought the property in its entirety in good faith at the court’s public auction.

On 9 December 2013 the applicant lodged an appeal against that judgment, which is still pending.

The relevant provisions of the Obligations Act (Zakon o obveznim odnosima, Official Gazette nos. 35/2005, 41/2008, 125/2011) read as follows:

“(1) A contract that is contrary to the Constitution, mandatory rules or morals shall be declared null and void (ništetan) unless the purpose of the breached rule indicates some other sanction or the law in a particular case provides otherwise.

(2) If the conclusion of a contract is prohibited only to one party, the contract shall remain valid, unless the law in a particular case provides otherwise, and the party that has breached the statutory prohibition shall bear the relevant consequences.”

“A contract is voidable (pobojan) if a party to it had no legal capacity or entered into the contract under duress (mane volje) at the time when it was concluded or where the contract is voidable under this Act or another statute.”


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

The applicant was born in 1986 and lives in Semič.

The applicant served his prison sentence in Ljubljana prison from 1 July 2009 to 4 November 2009. On the latter day he was transferred to Celje prison. He stayed there until 9 December 2009, when he was further transferred to Ljubljana prison, the Section Novo mesto (the Section Novo mesto). The applicant’s complaints do not relate to the conditions of detention in Celje prison.

In the period between 1 July 2009 and 23 September 2009 the applicant was held in the closed section of Ljubljana prison. From 1 July 2009 to 13 July 2009 he was held in cell 7 (third floor) measuring 16.8 square metres (including a separate 1.72 square metre sanitary facility). From 13 July 2009 to 17 July 2009 he was held in cell 4 (third floor) measuring 18 square metres (including a separate 1.72 square metre sanitary facility). From 17 July 2009 to 23 September 2009 he was held in cell 3 (third floor) measuring 18 square metres (including a separate 1.72 square metre sanitary facility).

In the period between 23 September 2009 and 4 November 2009 the applicant was held in the semi-open section of Ljubljana prison, in cell 3 (third floor) measuring 18 square metres (including a separate 1.72 square metre sanitary facility).

All the cells in the closed and semi-open sections contained, apart from the furniture, five sleeping places (two bunk beds and one single bed). According to the applicant, five prisoners were being held in each of the cells during his detention. The Government, however, submitted that the number varied between four and five. Each cell had one 107 x 110 cm double casement window, which the prisoners could freely open or close.

As regards the general characteristics of the cells in the closed and semi-open sections, material conditions inside the cells therein, sanitary conditions and health care, see the judgment in Štrucl and Others v. Slovenia, nos. 5903/10, 6003/10 and 6544/10, §§ 21 to 32, 20 October 2011.

As to the out-of-cell time in the closed section, the Court found in the aforementioned judgment that sentenced prisoners in the closed section of the prison were locked up in their cells and were only able to leave them if they applied for certain activities, most of which were to take place in the recreation room. There was, however, only one 50square-metre recreation room per floor, which was to be used by ten inmates at most (Štrucl and Others § 86).

As to the out-of-cell time in the semi-open section, the Government submitted that the cell doors in the semi-open section of the prison were unlocked, except from 9.45 p.m. (on Fridays, Saturdays and before holidays from midnight) until 6.00 a.m. (on Saturdays, Sundays and during holidays until 8.30 a.m.). During this time prisoners could move freely in the corridor (35.7 square metres), living quarters of co-prisoners or in the indoor or outdoor exercise areas, in accordance with prison rules. The Government alleged that this regime had been in place for several years. However, as the applicant was transferred to the semi-open section only on a ground of overcrowdedness, while being detained there he was not granted outside visits and unsupervised leave.

From 9 December 2009 to 1 April 2010 the applicant was held in the closed section of the Section Novo mesto. During his detention in the Section Novo mesto the applicant was held in unit 5 measuring 58.83 square metres and including four separate rooms, namely an ante-chamber measuring 9.98 square metres, a sanitary facility measuring 1.4 square metres, a smaller room measuring 18.61 square metres with three beds and a larger room measuring 28.84 square metres with five, occasionally six beds, where the applicant was held most of the time with three other prisoners. In the ante-chamber prisoners could watch television and prepare hot beverages. All together there were seven prisoners in unit 5. They could move freely in the unit twenty-four hours per day as the inner doors were unlocked. From 3.30 p.m. to 10.00 p.m. they could move freely also in the shared corridor of the Section Novo mesto and recreation areas. The applicant spent out of the unit six hours per day: two hours outdoors in an area of 300 square metres, four hours in a shared corridor of 108.64 square metres or in shared living quarters of 59.04 square metres. The applicant could also move in an outdoor recreation yard for two hours per day.

During his imprisonment the applicant had three consultations with a general practitioner and one psychiatric treatment. He never requested treatment by a psychologist or dentist.

As regards the cell temperature, the data provided by the Government showed that the average temperature in the cells in the late afternoon (5- 5.30 p.m.) in the second half of July and August 2009 had been approximately 28oC, exceeding 30oC on seven days.


CASE OF ŽIROVNICKÝ v. THE CZECH REPUBLIC

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

The applicant was born in 1968 and is serving a prison sentence in Mírov Prison.

On 8 April 2004 the applicant initiated civil proceedings for protection of his personality rights (“the main proceedings”) against the Czech Republic in the person of the Ministry of Justice (no. 37 C 51/2004). On 28 March 2008 the Prague Municipal Court (městský soud) dismissed the applicant’s action. The Prague High Court (vrchní soud) dismissed an appeal by the applicant on 20 October 2008 and the Supreme Court (Nejvyšší soud) dismissed an appeal on points of law on 15 April 2010.

On 12 June 2007 the applicant claimed compensation under the State Liability Act (Act no. 82/1998) from the Ministry of Justice for non-pecuniary damage arising from the excessive length of the main proceedings. As the Ministry did not deal with the applicant’s request within the six-month statutory time-limit, he brought a civil action on 18 December 2007 (proceedings no. 17 C 204/2007).

On 18 December 2009 the Prague 2 District Court (obvodní soud) acknowledged that there had been delays in the main proceedings and awarded the applicant 30,000 Czech korunas (CZK) (1,140 euros (EUR)) in respect of non-pecuniary damage and dismissed the rest of the claim.

On 15 September 2010 the Prague Municipal Court amended the lower court’s judgment by dismissing the whole financial claim, leaving the rest of the judgment intact. It found that the applicant had not suffered any non-pecuniary damage on account of the unreasonable length of the proceedings.

On 30 November 2011 the Supreme Court, upon an appeal on points of law by the applicant, quashed the Municipal Court’s judgment and remitted the case to it. On 11 April 2012 the Municipal Court dismissed the applicant’s claim for financial compensation but acknowledged that his right to have his case heard within a reasonable time had been violated in the main proceedings. Given the high number of lawsuits brought by the applicant, the court concluded that the finding of a violation was sufficient redress for the non-pecuniary damage caused to him. The court also saw no need to award him damages on account of the length of the compensation proceedings, as the applicant had requested, considering that they had not been unreasonably long.

On 12 August 2013 the Supreme Court dismissed an appeal on points of law by the applicant, stating, inter alia:

“The Supreme Court pointed out in its previous cassation judgment in this case that, without providing any further reasons, it cannot be concluded that the fact that a plaintiff has initiated a large number of disputes ... means that the presumption of non-pecuniary damage caused by excessively long proceedings has been rebutted.

The fact that an injured person has instigated a large number of judicial disputes can have an impact on his approach to a particular set of proceedings; for example, he may fail to respond to the court’s requests on time, pay court fees on time, remedy shortcomings in his submissions on time and such like, thus he may not pay proper attention to the proceedings. Such conduct may show that the subject matter of the proceedings is of lesser importance for the injured person and it may be taken into consideration under the criterion of the injured person’s conduct.... Nonetheless, even if there are no such circumstances on the part of the injured person, it is not possible to wholly ignore the fact that the plaintiff has initiated a large number of judicial disputes. It puts him in a different position as regards the perception of the degree of damage caused by the excessive length of one of the disputes compared to the position of a person participating in only one or only a few judicial proceedings (compare, in similar terms, the European Court of Human Rights inadmissibility decision in the case of Havelka v. the Czech Republic, of 20 September 2011, applications nos. 7332/10, 42666/10 and 61523/10, and the decision of the Supreme Court of 4 June 2013, no. 30 Cdo 1042/2013).

As to the appellant’s complaint that the court of appeal should have taken the length of the compensation proceedings themselves into account when determining redress, it must be admitted that the base amount of compensation can indeed be increased if compensation proceedings are themselves excessively long and a plaintiff requests an increase in compensation on those grounds (part VI. of the Supreme Court’s opinion of 13 April 2011, no. Cpjn 206/2010 ...). However, in its judgment of 14 November 2011, no. 30 Cdo 3340/2011, the Supreme Court added that if in the proceedings concerned the procedure under Article 118 §§ 1 and 2 of the Code of Civil Procedure (CCP) has been followed, the application of the possibility to increase compensation is limited by the rules for submitting new facts and modifying the initial action in the proceedings before the court of first instance; the same applies in similar fashion to appeal proceedings (see Article 205a § 1 and Article 2016 § 2 of the CCP). Thus, an injured person has to raise an objection about the length of compensation proceedings pending the effects of concentration in the particular proceedings. In the present case, the appellant raised a claim for compensation for the length of the compensation proceedings only in the course of the proceedings before the appellate court, in a submission of 11 April 2012 (file page 128) ... so it was an inadmissible new claim.”

On 24 April 2014 the Constitutional Court (Ústavní soud) dismissed a constitutional complaint (ústavní stížnost) by the applicant.

In the meantime, the applicant initiated proceedings for compensation (no. 23 C 149/2012) for non-pecuniary damage for the excessive length of the first set of compensation proceedings (no. 17 C 204/2007). He later began proceedings for compensation for non-pecuniary damage arising from the excessive length of the second set of compensation proceedings too (no. 22 C 204/2015).

On 19 September 2003 the applicant brought a civil action against the Czech Republic–Ministry of the Interior before the Prague 7 District Court under the State Liability Act. He claimed compensation for an allegedly illegal search of his house on 6 March 2001.

On 4 November 2004 he was asked to remedy shortcomings in his action, which he did on 16 November 2004.

On 21 March 2005 the District Court decided the case was not in its jurisdiction and referred it to the Prague 2 District Court. Following an appeal by the applicant, the Prague Municipal Court upheld the jurisdiction decision on 20 December 2005.

On 24 January 2007 the District Court appointed a legal representative for the applicant. On 6 June and 20 September 2007 and 4 January 2008 the applicant supplemented his action.

On 26 March 2008 the District Court asked the Prague 3 District Court to send it the criminal case file concerning the house search at issue.

The District Court dismissed the applicant’s action on 21 December 2009 after a hearing on 16 December 2009.

On 26 October 2011 the Prague Municipal Court upheld that decision.

On 27 January 2012 the applicant appealed on points of law. On 7 February 2012 he filed a constitutional complaint, which was rejected as premature by the Constitutional Court on 29 May 2012. The Supreme Court dismissed his appeal on points of law on 11 November 2015, referring, inter alia, to a decision by the Court on the same matter, which had found the complaint manifestly ill-founded (see Žirovnický v. the Czech Republic (dec.), no. 7022/06, 5 October 2010).

The applicant subsequently renewed his complaint to the Constitutional Court but it was dismissed on 15 March 2016.

On 8 June 2007 the applicant claimed compensation under the State Liability Act from the Ministry of Justice for non-pecuniary damage arising from the excessive length of the main proceedings (no. 18 C 84/2006). As the Ministry did not deal with his request within the six-month statutory time-limit, on 9 December 2007 he brought a civil action before the Prague 7 District Court seeking CZK 8,315.84 (EUR 318) in compensation.

On 20 January 2012 the District Court dismissed the action, considering that the main proceedings had not been unreasonably long.

On 12 December 2012 the Prague Municipal Court upheld the judgment, finding that although the main proceedings had lasted an unreasonably long time the applicant could not be awarded compensation because of the lack of significance of the proceedings for him. According to the court, the applicant had abused his right of access to a court by initiating a very large number of legal disputes against the State.

On 18 February 2015 the Supreme Court quashed the judgment and remitted the case to the Municipal Court. It noted that even if the applicant had abused his right of access to a court, unreasonably long proceedings might still cause him damage which had to be compensated for by at least a finding of a violation.

On 14 September 2015 the Municipal Court modified the District Court’s judgment by finding a violation of the applicant’s right to have his case heard within a reasonable time in the operative part of the judgment. The court refused to deal with a new complaint by the applicant about the length of the compensation proceedings.

On 27 November 2015 the applicant lodged an appeal on points of law, which is apparently still under consideration.

In the meantime, the applicant initiated proceedings for compensation (no. 12 C 301/2011) for non-pecuniary damage arising from the excessive length of the initial compensation proceedings and then proceedings for compensation for delays in that second case (no. 22 C 141/2015).

On 15 September 2003 the applicant brought an action for damages against the Czech Republic–Ministry of the Interior before the Prague 7 District Court, alleging that he had suffered damage in connection with a “terrorist attack” on his family by police officers on 6 March 2001.

On 28 July 2004 the case was referred to the Prague Municipal Court as the court competent to deal with it at the first instance.

After several decisions on exemption from court fees, the appointment of a legal representative for the applicant and several attempts by the court to procure the related criminal case files, a hearing was held on 28 March 2008, following which the Municipal Court dismissed the action.

On 25 November 2008 the Prague High Court upheld the judgment. The Supreme Court dismissed an appeal on points of law by the applicant on 31 August 2010.

On 6 June 2007 the applicant claimed compensation under the State Liability Act from the Ministry of Justice for non-pecuniary damage arising from the excessive length of the main proceedings, no. 34 C 126/2004. As the Ministry did not deal with the applicant’s request within the statutory time-limit, he brought a civil action before the Prague 2 District Court on 13 December 2007, seeking EUR 4,229.64 in compensation.

On 18 March 2010 the District Court dismissed his action, acknowledging that the main proceedings had been unreasonably long, but seeing no necessity to award him financial compensation.

On 16 December 2010 the Prague Municipal Court quashed the judgment, finding it non-reviewable for lack of reasoning, and remitted the case to the District Court. In a judgment of 21 March 2012, the District Court found a violation of the applicant’s right to have his case heard within a reasonable time in the operative part of the judgment and dismissed the action regarding financial compensation. According to the court, the finding of a violation constituted adequate redress. It found that awarding him financial compensation would be against good moralsapplicant’s conduct in the main proceedings, the conduct of the courts, the importance of the subject matter of the proceedings for the applicant as well as his character, his relation towards the State and society and his lack of respect for the rights of others.

On 6 December 2012 the Municipal Court upheld the judgment.

On 29 September 2014 the Supreme Court dismissed an appeal on points of law by the applicant. A subsequent constitutional complaint was dismissed as manifestly ill-founded by the Constitutional Court on 19 February 2015.

Following a plea of nullity by the applicant, the Municipal Court on 10 April 2015 quashed its judgment of 6 December 2012 on the grounds that the applicant had not been able to attend a hearing at the court.

On 19 November 2015 the Municipal Court issued a new judgment, modifying the District Court’s judgment by awarding the applicant CZK 32,400 (EUR 1,200). It found that the length of the compensation proceedings meant that a mere finding of a violation of his rights no longer constituted adequate redress. Having regard to the overall length of the main proceedings, the Municipal Court determined the sum to be awarded to the applicant (CZK 108,000 – EUR 4,000) and then adjusted it with regard to the length of the compensation proceedings (+20%), procedural difficulties in the main proceedings (-30%) and the importance of what had been at stake for him (-40%).

It appears that the compensation proceedings are still ongoing.

The applicant instituted a further two sets of proceedings related to the compensation claim: one to seek compensation for non-pecuniary damage for delays in the initial compensation proceedings (no. 23 C 163/2012) and one for compensation for the excessive length of that second set of compensation proceedings (no. 29 C 215/2015).

On 15 October 2004 the applicant brought an administrative action against the Ministry of Justice before the Prague Municipal Court, seeking the annulment of Ministry of Justice Decree no. 345/1999 on the rules for imprisonment (vyhláška Ministerstva spravedlnosti, kterou se vydává řád výkonu trestu odnětí svobody) and the internal rules of Plzeň Prison.

On 11 March 2005 the Municipal Court rejected his action for lack of competence.

Following a cassation complaint (kasační stížnost) by the applicant, the Supreme Administrative Court (Nejvyšší správní soud) quashed the judgment on 20 September 2006 and remitted the case to the Municipal Court. It found that the applicant’s action should have been dismissed (zamítnuta) rather than rejected (odmítnuta).

After several decisions on the appointment of a legal representative for the applicant in 2007, the Municipal Court dismissed the action on 30 September 2008.

On 5 March 2009 the Supreme Administrative Court dismissed a cassation complaint by the applicant.

On 10 October 2007 the applicant claimed compensation under the State Liability Act from the Ministry of Justice for non-pecuniary damage arising from the excessive length of the main proceedings (no. 5 Ca 176/2004, later no. 5 Ca 329/2006). As the Ministry did not deal with the applicant’s request within the statutory time-limit, he brought a civil action before the Prague 2 District Court on 10 April 2008, seeking EUR 3,487.77 in compensation.

On 11 May 2009 the District Court dismissed the action, considering that the overall length of the proceedings at issue had not been unreasonable despite one particular delay, particularly because the applicant had in fact known the result of the proceedings after the Supreme Administrative Court’s first judgment of September 2006.

On 17 February 2010 the Municipal Court upheld the judgment, holding that a finding of a violation of the applicant’s rights would be sufficient compensation for the one delay in the main proceedings.

On 22 November 2011 the Supreme Court quashed the judgment and remitted the case to the Municipal Court, stating that the finding of a violation should have been set out in the operative part of the judgment.

In a judgment of 18 April 2012 the Municipal Court found a violation of the applicant’s right to have his case heard without unnecessary delays in the operative part of the judgment. It found that the length of the main proceedings had been unreasonable, given that the case had not been complex. However, it found that the finding of a violation would provide adequate redress, given the lack of importance of what was at stake for the applicant and the fact that he must have known the result of the proceedings as soon as the Supreme Administrative Court had issued its first judgment. The court considered the finding of a violation to be adequate redress, even taking into account the length of the compensation proceedings themselves.

On 29 November 2012 the Supreme Court dismissed an appeal on points of law by the applicant. On 29 May 2013 the Constitutional Court dismissed a constitutional complaint as manifestly ill-founded.

In the meantime, the applicant initiated proceedings (no. 15 C 244/2012) for compensation for non-pecuniary damage arising from the excessive length of the initial compensation proceedings. He later made a claim for compensation for non-pecuniary damage from the excessive length of the latter compensation proceedings too (no. 17 C 146/2015).

On 12 October 2004 the applicant brought an administrative action against the Prison Service (vězeňská služba) and the Ministry of Justice, challenging decisions on a disciplinary penalty (a reprimand) that had been imposed on him and the failure of the Ministry of Justice to decide on a complaint by him about a violation of regulations by Prison Service staff.

After exempting the applicant from court fees, appointing a lawyer to represent him and seeking necessary clarification of the action, on 19 October 2006 the Prague Municipal Court found the action in respect of the disciplinary decisions inadmissible, severing the part of the action concerning the Ministry of Justice’s alleged failure to act.

On 10 May 2007 the Municipal Court dismissed the latter part of the action, finding that the Ministry had not been obliged to deal with the applicant’s complaint in administrative proceedings.

On 31 January 2008 the Supreme Administrative Court dismissed a cassation complaint by the applicant. On 21 May 2009 the Constitutional Court dismissed a constitutional complaint as manifestly ill-founded.

On 30 October 2007 the applicant claimed compensation under the State Liability Act from the Ministry of Justice for non-pecuniary damage arising from the excessive length of the main proceedings (no. 10 Ca 10/2005). As the Ministry did not deal with the applicant’s request within the statutory time-limit, he brought a civil action before the Prague 2 District Court on 6 May 2008, seeking EUR 3,412.69 in compensation.

On 11 May 2009 the District Court dismissed the action, finding that the main proceedings had not been unreasonably long.

On 6 January 2010 the Prague Municipal Court quashed the judgment and remitted the case to the District Court since it had failed to also consider proceedings no. 10 Ca 400/2006.

On 14 June 2010 the District Court again dismissed the action, finding that the main proceedings, nos. 10 Ca 10/2005 and 10 Ca 400/2006, had not been unreasonably long.

On 19 January 2011 the Municipal Court upheld the judgment. Although, contrary to the District Court, it considered that the main proceeding had been unreasonably long, it held that finding a violation was sufficient redress.

On 30 January 2013 the Supreme Court quashed the judgment and remitted the case to the Municipal Court. The latter court on 17 June 2013 modified the District Court’s judgment by setting out a violation of the applicant’s right to have his case heard within a reasonable time in the operative part of the judgment. It did not find that the length of the compensation proceedings had been unreasonable.

The applicant lodged an appeal on points of law, which is apparently still ongoing.

In the meantime, the applicant initiated two other cases for compensation for non-pecuniary damage from delayed proceedings: one related to delays in the initial compensation proceedings (no. 15 C 139/2012) and one related to delays in that further compensation proceedings (no. 14 C 154/2015).

On 13 December 2007 the applicant sent a request for compensation of CZK 300,000 (EUR 11,430) under the State Liability Act to the Ministry of the Interior. He stated that he had suffered non-pecuniary damage as a result of irregular official conduct by police officers who, on 27 June 2007, had taken a DNA sample by way of a cheek swab, without authority to do so and under the threat of force.

On 7 January 2008 the Ministry rejected the request. On 31 January 2008 the applicant brought an action for damages against the Ministry of the Interior before the Prague 7 District Court.

On 4 December 2008 the District Court rejected the action as time-barred. Following an appeal by the applicant, on 5 August 2009 the Prague Municipal Court quashed the judgment and remitted the case to the District Court, finding an erroneous assessment of the statutory limitation period.

On 23 March 2010 the District Court delivered a new judgment, dismissing the action for compensation. It admitted that there had been irregularities in the actions of the police officers when taking the applicant’s DNA samples, but found that he had not suffered any damage.

On 27 October 2010 the Municipal Court upheld the judgment, although with different reasoning. It considered that the finding of a violation was adequate redress for the damage caused to the applicant.

On 28 February 2013 the Supreme Court quashed the judgment and remitted the case to the Municipal Court. It stated that the Municipal Court “should not overlook” the Supreme Court’s case-law regarding the statutory limitation of a claim. Consequently, on 20 November 2013 the Municipal Court delivered a new judgment, dismissing the applicant’s action as time-barred.

The applicant lodged an appeal on points of law. On 13 November 2014 the Supreme Court discontinued proceedings on that appeal as the applicant’s lawyer had failed to submit it properly within the statutory time-limit.

On 19 October 2015 the Constitutional Court rejected a constitutional complaint by the applicant on the grounds that he was not represented by a lawyer. It also observed that the applicant did not want to pursue the complaint.

On 23 December 2011 the applicant claimed compensation under the State Liability Act from the Ministry of Justice for non-pecuniary damage arising from the excessive length of the main proceedings no. 10 C 49/2008.

On 10 May 2012 the Ministry rejected the applicant’s claim, finding no delays in the main proceedings and considering their overall length as reasonable. On 30 May 2012 the applicant brought a civil action against the Ministry, seeking EUR 4,549.14 in compensation.

After several attempts by the court to procure the relevant case file (no. 10 C 49/2008), a hearing was held on 22 September 2015. The District Court dismissed the action on the same day, finding that the length of the main proceedings had been reasonable.

According to the Government, the applicant filed an appeal on 6 November 2015, which is apparently still ongoing.

In the meantime, the applicant initiated proceedings for compensation for non-pecuniary damage arising from the excessive length of the initial compensation proceedings (no. 19 C 149/2015).

On 7 November 2006 the applicant brought an action for protection of his personality rights against a newspaper publisher and the Czech Republic–Ministry of Justice.

After an amendment of the action and several decisions on exempting the applicant from court fees, on 8 December 2008 the Prague Municipal Court discontinued the proceedings against the Czech Republic.

On 24 March 2009 the Municipal Court dismissed the action.

On 10 November 2009 the Prague High Court modified the judgment, awarding the applicant CZK 100,000 (EUR 3,920).

On 22 December 2011 the Supreme Court quashed the judgment and remitted the case to the High Court, which upheld the Municipal Court’s judgment on 15 May 2012.

On 6 August 2012 the applicant lodged an appeal on points of law, which is apparently still under consideration.

On 30 August 2012 the applicant lodged a plea of nullity against the High Court’s judgment, asserting that he had not been able to attend a hearing. Apparently, those proceedings are still ongoing.

On 14 February 2012 the applicant claimed compensation under the State Liability Act from the Ministry of Justice for non-pecuniary damage arising from the excessive length of the main proceedings.

On 20 August 2012 the Ministry rejected the applicant’s claim, finding no delays in the main proceedings. On 23 August 2012 the applicant brought a civil action against the Ministry, seeking EUR 5,774.37 in compensation.

On 18 January 2013 the Prague 2 District Court awarded the applicant CZK 54,250 (EUR 2,120) and dismissed the rest of the action. It considered that the main proceedings had been unreasonably long, taking into consideration that they had concerned the applicant’s personality rights.

On 1 October 2013 the Prague Municipal Court modified the judgment by finding a violation of the applicant’s right to have his case heard within a reasonable time but dismissing his claim for financial compensation. Having regard to the fact that the applicant had brought a number of actions, overloading the court system in the Czech Republic by such actions, the court concluded that the finding of a violation constituted adequate redress for non-pecuniary damage.

On 20 August 2014 the Supreme Court dismissed an appeal by the applicant on points of law. It emphasised that if a plaintiff initiated a large number of legal cases then the strength of his feelings towards the damage caused by the unreasonable length of one of those sets of proceedings was different to someone who had participated in only one or a few sets of proceedings.

The Constitutional Court dismissed a constitutional complaint by the applicant as manifestly ill-founded on 18 December 2014.


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

The applicant, Mr Jevgēnijs Simanovičs, is a “permanently resident noncitizen” of the Republic of Latvia who was born in 1966 and is currently serving a prison sentence Riga. He was represented before the Court by Ms A. Mazapša, a lawyer practising in Babīte. The Latvian Government (“the Government”) were represented by their Agent, Ms K. Līce.

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

As of 31 August 2004 the applicant was detained in Daugavgrīva Prison (Daugavgrīvas cietums). Prior to 1 November 2008 it had been named Daugavpils Prison (Daugavpils cietums). In the course of his detention the applicant also spent certain periods of time in other prisons. It appears that he stayed in Daugavgrīva Prison until 21 July 2011.

On 21 January 2009 the applicant complained to the Prisons Administration about the conditions in Daugavgrīva Prison. He asked to be released until prison conditions had been improved and requested a monetary compensation of 100,000 Latvian lati (LVL).

First of all, he submitted that the prison was overcrowded. He was housed in cell no. 208, which was occupied by ten persons, even though it had been designed for five. The situation was similar in other prison cells. On 9 September 2008 he had been transported to a hospital owing to heart problems. Upon his release from the hospital he had been returned to the same cell no. 208.

Furthermore, the applicant, a non-smoker, was exposed to cigarette smoke on a daily basis.

Also, two sets of bunk beds had been placed next to each other. The applicant had to sleep next to another man, and another inmate was sleeping above the applicant. His sleep suffered as a result, and his nervous system was also negatively affected.

Lastly, the applicant submitted that the cells were not equipped with emergency buttons in order to call for help. He generally stated that he was unable to purchase the necessary products in the prison shop.

On 27 February 2009 the Prisons Administration dismissed the applicant’s aforementioned complaint.

With regard to the issue of living space, the Prisons Administration found that the applicant had been provided with living space as required by statute, namely a minimum of 2.5 m² (see paragraph 47 below). In reaching that conclusion the Prisons Administration provided information on the floor area and intended number of inmates for each of the applicant’s cells between 18 October 2008 and 6 February 2009, including cell no. 208.

As to the applicant’s complaint of exposure to cigarette smoke, according to the applicant’s submissions of 10 November 2008 he had refused his transfer to a non-smoking cell. Also, on 8 January 2009 he had requested that two packs of cigarettes, a lighter and matches be purchased for him in the prison shop.

The Prisons Administration did not react to the complaint concerning bunk beds.

Lastly, it provided general information on the products available at the prison shop.

That decision could be challenged before the Administrative District Court (Administratīvā rajona tiesa).

On 9 March 2009 the Administrative District Court received the applicant’s complaint, as supplemented on 31 August 2009, regarding poor conditions in Daugavgrīva Prison over “a long period of time”. The applicant requested financial compensation.

He submitted that his health had deteriorated as a result of the conditions in the prison. He raised most of the same issues as previously before the Prisons Administration, namely overcrowding, his exposure to cigarette smoke, the bunk beds, and the absence of an emergency button.

He further criticised the first aid in response to his heart attack on 9 September 2008, and submitted that prior to his arrest in 2004 he had not suffered from heart problems. Following the heart attack, the applicant had refused his transfer to a single-occupancy cell because it already held two inmates and thus would not remedy his situation. He argued that he had purchased the cigarettes in order to use them to repel rodents.

In addition, owing to the large number of inmates, the applicant had difficulty in accessing sanitary facilities, including a non-partitioned toilet, and a table to have a meal. There was also a bad smell and a lack of ventilation in the prison cells. He was locked up in those conditions for twenty-three hours a day.

On 28 April 2010 the Administrative District Court dismissed the applicant’s complaint.

Concerning the issue of overcrowding, the District Court concluded that the information provided by Daugavgrīva Prison showed that between 18 October 2008 and 6 February 2009 the applicant had been held in prison cells with a surface area of at least 2.6 m² per person, which complied with statutory requirements.

As to the applicant’s confinement with smokers, the District Court held that the statutes did not require smokers and non-smokers to be held separately. However, such an obligation was incumbent on the prison once a convicted person had made a request to be transferred to a non-smoking cell.

In that regard, there was no evidence that the applicant had made such a request prior to his heart attack on 9 September 2008. He had made the request on 1 November 2008. Yet he had refused to be placed in non-smoking cell no. 223 because of certain conditions in that cell. However, there was no indication in the case file that the applicant had informed the prison of these issues and had requested that they be addressed or that he be moved to a different cell. That being the case, it could not be said that the prison had ignored the applicant’s requests in relation to non-smoking conditions and that he had been forced to share a cell with smokers.

As regards the bunk beds, the District Court did not accept that beds had led to the applicant’s being subjected to inhuman treatment. His sleep problem had nothing to do with the beds. It was a medical issue, concerning which the applicant ought to have consulted a prison doctor.

An appeal lay to a higher court against that decision of the Administrative District Court.

In his appeal of 30 April 2010, as supplemented on 22 August 2010, the applicant requested that the above-mentioned decision of District Court be quashed and that he be awarded compensation of LVL 100,000.

The applicant argued that the lower court had been mistaken in finding that he had been provided with a minimum of 2.5 m² of living space as required by the statutes. The floor space had been taken up by furniture and the toilet, thus reducing the available floor space.

He further complained that the statutes should also require, with regard to prisons, that separate, isolated and well-ventilated rooms be provided for smoking. The applicant had no complaints about other inmates smoking, since they were his friends. It was therefore illegitimate to require him to move to a different prison cell. Furthermore, a fine metal mesh had been installed on the windows hampering air circulation. As a result, the applicant had experienced renewed heart problems.

On 27 September 2011 the Administrative Regional Court (Administratīvā apgabaltiesa) examined the applicant’s appeal and partly granted his claim.

The Regional Court noted that during the court hearing the applicant had stated that he had been subjected to inhuman conditions for more than four years. It further stated that the scope of the case was limited to the matters in relation to which the administrative proceedings had been initiated.

As regards the applicant’s confinement with smokers, the Regional Court endorsed the lower court’s findings.

As to the applicant’s complaint of overcrowding, the Regional Court noted the recommendation of the European Committee for the Prevention of Torture and Inhuman and Degrading Treatment or Punishment (CPT) that at least 4 m² be provided per prisoner in multiple-occupancy cells, as mentioned by the Court in Bazjaks v. Latvia (no. 71572/01, § 37, 19 October 2010).

In the applicant’s case, that standard had not been complied with for a period of 104 days, namely between 18 October 2008 and 30 January 2009. Also, as a result of overcrowding, the ventilation during that time had been inadequate. Consequently, the applicant had suffered treatment in breach of the prohibition of torture.

In determining the amount of compensation to be paid, the Regional Court took into consideration the degree and duration of the violation of the applicant’s rights. It referred to the case-law of the administrative courts. It also observed that in Bazjaks the Court had awarded 11,700 euros (EUR) where a person had been held for a year in conditions of overcrowding and also of limited out-of-cell activities, lack of personal hygiene products (soap, toothbrush, toilet paper), insufficient ventilation and natural light; in addition, there had been a suspicion that the person had contracted tuberculosis while in detention (ibid., §§ 112-116).

That being the case, the Regional Court deemed that compensation of LVL 700 (roughly corresponding to EUR 1,000) was appropriate in the applicant’s situation.

That judgment was open to appeal before the Administrative Cases Division of the Senate of the Supreme Court (Augstākās tiesas Senāta Administratīvo lietu departaments).

On 9 September 2011 the applicant lodged an appeal on points of law against the above judgment of the Regional Court. He requested that the Senate of the Supreme Court re-calculate the compensation awarded.

He submitted that the appeal court had not taken all the circumstances into account. He further specified that he had been detained in Daugavgrīva Prison in inhuman conditions for a long period of time, namely four years and two months, and that owing to those conditions he had had a heart attack.

For each day spent in Daugavgrīva Prison the applicant claimed EUR 100 in compensation, in total EUR 152,000, which he had rounded to LVL 100,000.

On 22 June 2012 the Senate of the Supreme Court upheld the impugned judgment and dismissed the applicant’s appeal on points of law.

It affirmed that Article 3 of the Convention had been violated in the applicant’s case on account of the small living space and insufficient ventilation, which had been switched on for only one or two hours every day.

With regard to the applicant’s complaint regarding the period of time considered by the Regional Court, the Senate held that the circumstances of which the applicant had complained to the Prisons Administration had been scrutinised in the present case. First, his complaint in relation to a non-smoking cell had been dismissed, and in that part the Regional Court’s judgment had become final. Further, he had complained about the size of the prison cells. The Senate ruled that none of the facts of the case had been disregarded by the Regional Court.

That judgment was final.

On 9 July 2012 the applicant lodged a complaint with the Prisons Administration about conditions of detention in Daugavgrīva Prison between 31 August 2004 and October 2008.

On 8 August 2012 the Prisons Administration dismissed that complaint as out-of-time.

Furthermore, in the final decision of the Administrative Regional Court of 11 January 2013 the court proceedings were also rejected in view of the belated nature of the applicant’s complaint.

In regard to Article 95 of the Constitution (Satversme) prohibiting the torture and cruel or degrading treatment of a person, see Cēsnieks v. Latvia (no. 9278/06, § 48, 11 February 2014). Moreover, Article 92 enshrines everyone’s right to adequate compensation in the event of an unlawful interference with his or her rights.

Article 77 of the Sentence Enforcement Code (Sodu izpildes kodekss), which provides for living space in dormitorytype prison cells of no less than 2.5 m² per person for men, was cited in Jegorovs v. Latvia ((dec.), no. 53281/08, § 71, 1 July 2014).

The Administrative Procedure Law (Administratīvā procesa likums) came into force on 1 February 2004. It provides, among other things, for the right to challenge the actions of public authorities (faktiskā rīcība) before the administrative courts (see D.F. v. Latvia, no. 11160/07, § 40, 29 October 2013, and Melnītis v. Latvia, no. 30779/05, § 24, 28 February 2012).


Remainder inadmissible;Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for private life);Pecuniary damage - claim dismissed;Non-pecuniary damage - award

Dmitry Dedov;Erik Møse;Isabelle Berro-Lefèvre;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque;Ksenija Turković

The applicant was born in 1980 and lives in St Petersburg.

On the morning of 23 April 1999 the pregnant applicant, after her contractions had started, was taken by ambulance to the gynaecology ward of the S. M. Kirov Military Medical Academy Hospital.

Following her admission, she was handed a booklet issued by the hospital which contained, among other things, a notice warning patients about their possible involvement in the clinical teaching taking place at the hospital. The notice read:

“We ask you to respect the fact that medical treatment in our hospital is combined with teaching for students studying obstetrics and gynaecology. Because of this, all patients are involved in the study process.”

The exact time at which the booklet was handed to her is unclear.

At 9 a.m. the applicant was examined by a doctor, who established that she was forty weeks pregnant and that there were complications with the pregnancy because she had mild polyhydramnios (excess amniotic fluid). The doctor noted that the applicant’s contractions appeared premature and that she was suffering from fatigue. In view of these symptoms, she was put in a drug-induced sleep, which lasted from 10 a.m. to 12 noon.

At 2 p.m. the applicant’s doctor again established that the contractions had been premature and prescribed her anti-contraction medication to suppress premature labour.

Between 2 and 10 p.m. the applicant underwent various medical examinations. The doctors found no other pathologies except that she had been having irregular contractions.

According to the applicant, at around 3 p.m. she was informed that her delivery was scheduled for the next day and that it would be attended by medical students.

At 10 p.m. the applicant was put in a drug-induced sleep. During the night her condition was monitored by doctors.

At 8 a.m. the next day, after the applicant had been woken up, the frequency and intensity of her contractions increased. The doctors found traces of meconium in her amniotic fluid, which indicated there was a risk that the foetus was suffering from hypoxia. The applicant was prescribed medicine to improve uteroplacental hemodynamics (blood flow to the placenta).

At 9 a.m. the doctors carried out a cardiotocography examination and described the state of health of both the applicant and her foetus as satisfactory. They also decided to conduct a vaginal delivery. According to the applicant, in the delivery room she objected to the presence of medical students at the birth.

The birth lasted from 10 to 10.35 a.m. in the presence of doctors and medical students, who had apparently received some information about her state of health and medical treatment. During the labour the doctors performed an episiotomy (incision). The child was diagnosed with light asphyxia. At 1 p.m. the child was moved to a special care baby unit and remained there until 13 May 1999, the date the applicant took her home.

On 10 August 1999 the applicant lodged a complaint with the hospital, seeking compensation for non-pecuniary damage allegedly caused as a result of the measures aimed at delaying the birth.

In response, the hospital administration carried out an internal inquiry. The results of were set out in a report dated 14 August 1999, which confirmed that the delivery had been conducted in line with the relevant standards, and that upon the applicant’s admission she had been notified of the possible presence of the public during her labour. The relevant part of the report read as follows:

“... fourth-year medical students were present in the delivery room during [the applicant’s] labour, as [per] their timetable for 24 April 1999. This could not have had any negative impact on the outcome of the birth. Management of the delivery was performed by [the head of the Maternity Department]. On admission [the applicant] was notified of the possible presence of the public during her labour. Obstetricians did not intentionally delay the birth. The treatment was carried out in the best interests of the mother and foetus in accordance with the particular circumstances of the applicant’s delivery...”

On 19 August 1999 the hospital dismissed the applicant’s request, stating that there had not been any mistakes in the management of the birth.

On 27 July 2000 the applicant sued the hospital in the St Petersburg Vyborg District Court ("the District Court"). She sought compensation for non-pecuniary damage and a public apology for the intentional delay to her labour and the non-authorised presence of third parties during the birth.

On 4 September 2002 the District Court ordered an expert examination of the applicant’s case. Experts were requested to examine whether or not the applicant’s delivery had been intentionally delayed and whether or not her labour had been affected by the presence of the students.

In their report dated 27 September 2002 the experts concluded that:

“[The hospital] provided [the applicant] with medical care without any shortcomings capable of deteriorating the health of mother or child. The medical treatment was adequate and carried out timeously. After [the applicant’s admission] she had been carefully examined by doctors, who had made the correct diagnosis and prepared an adequate plan for the birth. Owing to the prematurity of [the applicant’s] contractions and her general fatigue, the prescription of a drug-induced sleep should be considered an appropriate measure. The subsequent treatment [for] the premature contractions was necessary...

Childbirth is stressful for every woman. The presence of [the hospital’s] medical students, even at the second stage of delivery, when the pregnant woman was bearing down, could not have affected management of the labour. The delivery could only have been adversely affected at the first stage. During the bearing down phase, a pregnant woman is usually focused on her physical activity. The presence of the public could not adversely affect her labour. Medical documents show that it was impossible to delay the delivery at the second stage, the stage of unintentional bearing down. The documents in the [applicant’s] case file contain no evidence to confirm that the birth was intentionally delayed with a view to arranging a study of this case by medical students.”

On 25 November 2003 the District Court rejected the applicant’s claim. Relying on the above-mentioned expert report, it held that the quality of the applicant’s treatment at the hospital had been adequate. It further noted that the domestic law, in particular, the Health Care Act, in force at the time, did not require the consent of a patient to the presence of medical students in writing. It also established the fact that the applicant had been informed of her involvement in the study process beforehand, as she had received the hospital’s booklet containing an explicit warning about the possible presence of medical students during her treatment. The District Court dismissed her argument that she had objected to the presence of the public during the birth as unsubstantiated by accepting the oral submission of her doctor that no such objection had been made. The court did not verify the doctor’s statements in this respect by questioning other witnesses and did not refer to any other evidence in connection with the issue. It concluded that the hospital doctors had acted lawfully and had not caused her any nonpecuniary damage.

The relevant part of the judgment reads as follows:

“... The applicant lodged a claim seeking compensation for non-pecuniary damage ... [She] alleged that the birth of her child had been intentionally delayed to arrange for a public procedure in the presence of medical students. [She] stated that the demonstration of her labour, which had been carried out without her consent, had caused her physical and psychological suffering and violated her rights. She stated that the defendant should pay her RUB 300,000 in compensation for non-pecuniary damage.

The representatives of [the hospital] objected to the claim. They stated that the [applicant] had been aware of the study process in [the hospital] before she had been admitted there ... They further argued that [she] had received adequate and timely medical treatment ...

[B.], a doctor who assisted [the applicant] during her labour stated while being questioned ... [in] court that the medical care had been provided in line with the expected standards and without delay. The applicant did not make any complaints about the quality of [her] medical care. [B.] also submitted that it was impossible to delay labour. According to her, the presence of students lasted only a few minutes. The students’ curriculum provided that they had to take part in doctors’ rounds and the medical treatment of patients...

In accordance with Article 54 of the Health Care Act, students of secondary and higher medical educational institutions are allowed to assist in the administration of medical treatment in line with the requirements of their curriculum and under the supervision of medical personnel. The relevant rules are to be set forth by the Ministry of Health of Russia. Articles 32 and 33 of the Health Care Act provide that such medical interventions may not be performed without a patient’s consent, which must be confirmed in [writing].

The court finds that the mere presence of [the hospital’s] students in the delivery room cannot be construed as a medical intervention within the meaning of Articles 32 and 33 of the Health Care Act. As can be seen from the case file documents, ambulances do not usually take their patients to [hospital]. [The applicant] was taken to [the hospital] because her husband served in the [army].

According to [the applicant’s] statements, she was aware of her possible involvement in the study process (see the booklet). The case file contains no evidence which could support the allegations that she had objected to the presence of the public during the delivery.

Taking into account the circumstances of this case, the court sees no grounds to find the [hospital’s] doctors guilty of inflicting any non-pecuniary damage or physical or moral suffering on the applicant. Accordingly, [the hospital] is under no obligation to pay any compensation [to her] ...”

On 24 May 2004 the St Petersburg City Court upheld the District Court’s judgment on appeal.


Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing)

András Sajó;Nona Tsotsoria;Paulo Pinto De Albuquerque;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer

The applicant was born in 1963 and lives in Mežica.

On 22 August 2003 the applicant brought criminal charges (“criminal action”) for defamation against A.Š., thus undertaking criminal prosecution as private prosecutor. Along with the criminal action, the applicant made a motion to be awarded compensation for pecuniary and non-pecuniary loss arising from the commission of the criminal offence in question.

On 16 November 2006 the Ljubljana District Court handed down its judgment and found A.Š. guilty of the criminal offence of defamation, giving him a suspended sentence of one month in prison and ordering him to pay the costs of the proceedings. In respect of the applicant’s claim for compensation, the district court held that the claim was unsubstantiated and directed the applicant to seek compensation in civil proceedings.

Both parties appealed against the judgment before the Ljubljana Higher Court. In particular, the applicant alleged that there had been a violation of the Criminal Code and that the punishment imposed on A.Š. had been too lenient. He also complained about the fact that the first-instance court had not ruled on his claim for compensation, despite the fact that there had allegedly been enough material in the case file to enable it to rule on the matter.

On 11 March 2008 the Ljubljana Higher Court granted the applicant’s appeal in respect of the punishment and increased it to three months of suspended sentence. However, it dismissed the complaint concerning the applicant’s unsuccessful claim for compensation, confirming the lower court’s view that it had not been substantiated.

The applicant did not institute separate civil proceedings for compensation.

On 12 May 2008 A.Š. lodged with the Supreme Court a request for the protection of legality (an extraordinary legal remedy whereby to challenge the procedural and substantive legality of final decisions), alleging an incorrect application of the Criminal Procedure Act. In particular, he alleged that the applicant’s criminal action had been brought out of time.

On 27 May 2008 the Ljubljana District Court notified the applicant’s representative that on 12 May 2008 A.Š. had lodged a request for the protection of legality; however, the notification did not include a copy of the said request for the protection of legality.

On 4 July 2008, pursuant to Section 423 of the Criminal Procedure Act, the request for the protection of legality was sent to the Supreme State Prosecutor for a response.

In that response, the Supreme State Prosecutor agreed that the criminal action had been brought out of time. This response was served on A.Š. and his representatives.

However, neither the applicant nor his representative were served with that response; nor were they ever served with the request for the protection of legality.

On 28 August 2008 the Supreme Court, without having informed the parties of the date of the deliberation session, deliberated in private and upheld the request for the protection of legality, dismissing the applicant’s action as having been lodged out of time. Further, it ordered the applicant to pay the costs of proceedings including the costs and attorney’s fees incurred by A.Š. and a lump sum covering court fees of 600 euros (EUR).

Not being aware that the request for the protection of legality had already been decided, on 3 September 2008 the applicant’s representative requested the relevant documentation from the Ljubljana District Court.

On 5 September 2008 the Ljubljana District Court informed the applicant’s representative that the case-file documents had been with the Supreme Court since 30 June 2008. Accordingly, on the same day the applicant’s representative requested from the Supreme Court the documentation regarding the request for the protection of legality.

On 12 September 2008 the Supreme Court informed the applicant’s representative that A.Š. had lodged a request for the protection of legality which had been upheld on 28 August 2008.

On 22 September 2008 the Supreme Court’s judgment was served on the applicant’s representative.

On 20 November 2008 the applicant lodged a constitutional complaint. Citing Articles 14, 22 and 23 of the Constitution, the applicant claimed that he had not been afforded equality before the law and that his right to judicial protection and his right to equal protection had been violated as he had not been given the opportunity to participate in the proceedings before the Supreme Court. He also alleged violations of the Convention, citing Articles 6 and 14 and Article 1 of Protocol No. 1, the latter in respect of the fact that he had been ordered to pay the opposite party’s costs of the proceedings.

On 5 January 2009 the Constitutional Court rejected the applicant’s complaint.